121 Pa.

Volume 121 — Pennsylvania State Reports

55 opinions

121 Pa. 1Fidelity Ins., Trust, & S. D. Co.'s Appeal (1888)
appeal erom the decree of the orphans’ court oe PHILADELPHIA COUNTY. No. 200 July Term 1887, Sup. Ct.; court below, No. 397 April Term 1885, O. C. On March 17, 1887, the second, account of Mrs. Sarah F. Whitney and A. E. Outerbridge, Jr., administrators c. t. a. of the estate of George WMtney, deceased, was called for audit, when the facts out of wMch the contention arose were agreed by the parties M interest to be as follows : George Whitney, the decedent, being about 40 years of age, and about to be married to Miss Sarah C. Fairman, on January 20, 1859, made Ms last will and testament in the words following : I hereby bequeath my sister-in-law, Sarah Stowe Ely, the sum of five thousand dollars ($5,000), to be paid to her witMn one year from the date of my decease. The remainder of my estate is to be divided equally between my betrothed, Miss Sarah G. Fairman, and my cMld, Mary Ely WMtney, at such time and in such manner as my executors may decide — the amount now invested as part of the capital of the firm of A. Whitney & Sons, to remain in their business, on interest, until such decision is made by my executor, said interest being subject to the order of the said Sarah C. Fairman for the support of herself and the said cMld, Mary Ely WMtney, and I hereby appoint my father, Asa Whitney, to be my executor. Tins is my last will and testament made at PMladelpMa, January 20, 1859. Geo. Whitney, [seal.] At the date of said will, Mr. Whitney was a widower and the father of one cMld, then living, Mary Ely WMtney; and on January 25, 1859, he was married to Miss Fairman, the lady named in the will as Ms betrothed. Asa Whitney, the testator’s father, named in the will as executor, died June 4, 1874. On April 6, 1880, the daughter, Mary Ely Whitney, was married to A. E. Outerbridge, Jr., and on May 12, 1881, their son, George Whitney Outerbridge, was born. Mrs. Outerbridge died on May 19,1881, leaving her surviving her husband, A. E. Outerbridge, Jr., and her only son and cMld, George Whitney Outerbridge. On March 6, 1885, George WMtney, the testator, died. His will was produced by Ms widow, Mrs. Sarah F. WMtney, inclosed in a sealed envelope addressed in the testator’s handwriting — “ Asa Whitney, Esq., Phila. To be delivered to him at my death. George Whitney.” The envelope with its inclosure had been handed to Mrs. Whitney at or about the time of their marriage and she had kept it thereafter. This will was admitted to probate and on April 7, 1885, letters of administration c. t. a. were granted to his widow, Mrs. Whitney and his son-in-law, A. E. Outerbridge, Jr. The Fidelity Insurance, Trust and Safe Deposit Company was duly appointed guardian of George Whitney Outerbridge. There was no issue of the marriage of George Whitney and Mrs. Sarah F. Whitney, and the latter died on January 10, 1887, having devised and bequeathed by her will her residuary estate, real and personal, to her two sisters, Mrs. Margaret A. Lee and Mrs. Jane E. Brown, which will was also admitted tó probate and letters granted to John H. Redfield, as executor thereof. The question which arose was, whether by the marriage of George Whitney to Miss Sarah C. Fairman, after the execution of his will whereby he bequeathed to her the one half of his residuary estate, said will became inoperative as to her, so that upon his death she took under the intestate law, or whether she took under said will. On March 24, 1887, the auditing judge, Ashman, J., commenting upon § 23, act of April 19, 1794, 3 Sm. L. 152; § 15, act of April 8, 1833, P. L. 249; Coates v. Hughes, 3 Binn. 511; Edwards’ App., 47 Pa. 144; Walker v. Hall, 34 Pa. 483; Cavett’s App., 8 W. & S. 25; ruled that the act of 1833, in its said section was an enabling act, “ abrogating the common law rule which required marriage and the birth of issue to revoke an ante-nuptial testament, and under it, if a widow, who is not mentioned in her husband’s will and whose marriage followed its execution, chooses to waive her share under the intestate law, the will will stand in its entirety; ” that, in the interest of the widow, the section left to her the discretion whether the will should operate as to her or not, and that, in this instance, there was a will in which the husband had anticipated the legislature, and left to his proposed wife more than the intestate laws would give her, a case confessedly where the mischief which the act was intended to remedy did not exist; that the statute should not be used to introduce a greater mischief, and deprive the wife of the larger estate bequeathed to her, because it had seemed to her a smaller estate on the supposition that the will might leave her nothing; and adjudged that the estate of the deceased widow was entitled to receive, as legatee, the one half of the fund for distribution, and it was so awarded. The Fidelity etc. Co., guardian of George Whitney Outer-bridge, excepted to this adjudication: 1. [Disclosing a clerical error in the calculations.] 2. That the auditing judge erred in deciding that the estate of the deceased widow was entitled to receive as legatee one half of the fund for distribution. The exceptions having been argued before the court in banc, on July 2, 1887, the following opinion and decree was filed; Penrose, J.: The doctrine of the civil law with regard to implied revocation of wills by subsequent marriage and birth of issue, was, as we learn from the authorities, reluctantly, and only by degrees, adopted by the common law; and it was not until the case of Christopher v. Christopher, 2 Burr. 2182, n., decided in 1771, and followed in 1773 by Sprague v. Stone, 2 Ambler 723, that the implication arising from such changed state of circumstances was admitted to extend to a wiE of lands; though as early as 1682, in Overbmy v. Overbmy, 2 Show. 242, it had been decided that it did extend to a wiE of personal property. The revocation so effected, which at a later date was held to be a rule of law independent of any question of intention, was a revocation in toto. But while it was thus estabEshed that subsequent marriage and birth of issue, conjointly, would revoke, marriage alone or birth of issue alone would not; and hence, unless the testator owned lands in which the wife would have dower, a will in favor of strangers, executed before marriage, was, unless there should be issue, an absolute exclusion from any participation in her husband’s estate. And tins was the condition of the law in Pennsylvania (though there had been legislation on the subject, which had been repealed or in some way become inoperative, as early as 1683, and in 1697 and 1700: Duke of Yorke’s Book of Laws, 231, 264; MiEer’s Chart, and Acts of Ass., Appendix II., 2) when tlie act of February 4, 1748-9, 2 Miller Ch. and Acts, 32, was passed, providing that as to a subsequent wife or subsequently born children not named in the will the estate of a testator, both real and personal, should pass as if he had actually died without a will. This act was followed by that of March 23, 1764, 3 Sm. L. 159, which applied to wives as well as husbands, making wills inoperative as against after-born children not provided for therein. Then came the act of April 19, 1794, 3 Sm. L. 152, declaring that as against children not provided for, or a widow, a testator whose will was made prior to marriage should be treated as if he had died without any will; and this, with slight verbal changes, was re-enacted by the act of April 8, 1833, the fifteenth section of which is as follows: “ When any person shall make his last will and testament, and afterwards shall many or have a child or children not provided for in such will, and die leaving a widow and child, or either a widow or child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow or child or children after-born, shall be deemed and construed to die intestate, and such widow, child, or children shall be entitled to such purparts, shares, or dividends of the estate, real and personal, of the deceased, as if he had actually died without a will.” Three things are to be observed of this act: (1) the will is inoperative either as to the wife or as to the after-born children not provided for; (2) the intestacy thus caused is, in either case, partial — not total as under the doctrine adopted by the common law in case of marriage and birth of issue; and (3) it deals with the widow qua widow, and not in her individual capacity. It cannot be doubted that the object of this legislation, so far as the wife of a testator is concerned, was solely to protect her from the injustice of being cut off from her husband’s estate by a will made before marriage. Every man is permitted to make a will, and every individual to be a legatee or devisee; and statutes in derogation of these rights are to be construed strictly. A man’s will executed before marriage is inoperative under the act of 1833 and the acts prior thereto, as against his widow to the extent of the interest which she takes, as widow, under the intestate laws, and as against subsequently born children not provided for in it, to the extent of their interest under those laws. It is effective in either case as against children born before its execution, whether provided for or not. If having children he makes a will giving his entire estate to strangers, his subsequent marriage can confer no rights on such children; it is only as to after-born children and the wife herself, that the act provides for an intestacy, and that pro tanto only. If the widow avail herself of the act, she alone is benefited : “ Such widow shall be entitled to such purpart, share, and dividend of the estate, real and personal, of the deceased, as if he had actually died without any will.” If she do not avail herself of it, the result is the same; the will stands as to all the world except as against the widow or after-born children not provided for, and the intestate laws have no application. If this be so as to a will making no provision for children born before its execution, it must, a fortiori, be so as against those who are provided for. If, for example, the ante-nuptial will gives half of the estate to the children by a previous marriage and half to the' parents of the testator, the subsequent marriage would reduce each class of legacies one third, and by no possibility could either be increased. If the wife, having means of her own, should decline to take the share given to her by the intestate laws, it would not go to the children and thus increase their shares at the expense of those of the grandparents. If, instead of one half being given to the parents of the testator, it is given, as in the case now before us, to the intended wife, by what principle or under what law can the subsequent marriage, in that case more than in the other, increase the shares of the children born of the prior marriage and taking under the will the other half? The act was not designed to penalize marriage. Manifestly the husband was not the person intended to be benefited by the act, for he always has it in his own power to revoke the ante-nuptial will either in part or altogether: the children born before its execution, whether provided for or not, were not so intended, for the act makes no reference to them whatever; and after-born children not provided for are the subjects of special, independent provision, irrespective of what becomes of the share of the widow. No question of public policy is involved, for the law encourages marriage and looks with especial favor upon the rights of widows. The conclusion, therefore, is irresistible that the only object was the protection of the widow herself, and it is contrary to all rules of interpretation to permit an act designed to confer a benefit to-be so enforced as to cause an injury. Invito beneficium non datur. Quilibet potest renunciare juri pro se introducto. Why take from a widow the benefit of a gift contained in an ante-nuptial will, when the law, except in the case of after-born children not provided for, makes no disposition of it when so taken? The spirit and reason of a law are always to be considered, and a blind adherence to the letter will not at the present day be permitted to lead to an injustice or an absurdity, any more than it was when the sailor, of whom Blackstone on the authority of Cicero tells us, claimed the ship, which he was too sick to get away from, under the law which gave it in absolute terms to him who remained on board in a storm after all others had abandoned it: See Kinter’s Appeal, 62 Pa. 318; Odiorne’s Appeal, 54 Pa. 175; Graham v. Ingleby, 1 Exch. 61, 65; 1 Bl. Com. 87; Co. Litt. 45, a. But if it should be conceded that a woman, marrying after the execution of her husband’s will, must take as widow her share under the intestate laws, and that to this extent he is to be regarded as having left no will, what forbids her taking also, qua legatee, to the extent that the will is not thus made inoperative ? As already observed, the act was not intended to inflict a penalty for marrying; and being, so far as it interferes with the right to freely dispose of, or freely receive property, in derogation of ■ the common law, it is to be strictly construed. It deals with the woman in her capacity as widow, only, and as against her as such, and pro tanto merely, provides for an intestacy. As to anything given to her as legatee in excess of her share as widow, it is silent. Prior to the statute which put her to an election, a wife in the absence of a provision to the contrary in the will could take her dower and also what the will gave her, though her estate under the will exceeded her dower: Evans v. Webb, 1 Y. 425 ; and the 11th section of the act of 1833, which puts the widow to her election, did not apply to the case of an ante-nuptial will. Even since that act there are cases in which the wife may take under the will and also under the intestate laws : Grim’s Appeal, 109 Pa. 391; Carman’s Appeal, 2 Penny. 832. It would seem, therefore, that one reason for the passage of the act of April 11, 1848, § 11, P. L. 537, was that widows should be placed upon a footing of entire equality without reference to the fact whether the will was made before or after marriage. This appears from the act itself, which provides as follows: “ The 11th section of the act of April 8, 1833 .....shall not be construed to deprive the widow of the testator, in case she elects not to take under the last will and testament of her husband, of her share of the personal estate of her husband under the intestate laws of tlris commonwealth; but the said widow may take her choice, either of the bequest or devise made to her under any last will and testament, or of her share of the personal estate under the intestate laws aforesaid.” If this had been intended only for the case of post-nuptial wills, instead of providing for an election betwéen her rights under the intestate laws and the bequest or devise made to her by “ any ” last will and testament, the act would have said that she should elect between her rights under the intestate laws and the bequest or devise made to her by “ such last will and testament ” — that is, the last will and testament spoken of in the previous clause of the sentence referring to § 11, act of 1833; but instead of this, the broadest and most comprehensive language is used: “ any ” last will and testament. As was said in Turnpike Company v. McNamara, 72 Pa. 280, in construing an act of congress containing this word, “ Language could not be broader, and no exception or qualification is to be found in the act, while the design.....makes the meaning perfectly clear.” As to what was said by the judge delivering the opinion in Edwards’ Appeal, 47 Pa. 144, to the effect that the subsequent marriage of a testator in itself operates as an absolute revocation of his will, irrespective of action or election on the part of the widow, it is sufficient to remark that it was unnecessary to the decision of the case and must be regarded as dictmn only. The effect of the doctrine asserted would be to make marriage alone accomplish all that under the act results from marriage and birth of isspe not provided for; and in such case, if an absolute intestacy as to all that may have been given to the wife beyond what she would take under the intestate laws is produced, the will becomes inoperative not only as against after-born children not provided for — the only persons other than the widow referred to in the act — but also as to children born before the will although provided for. Of course even the dictum of a judge of the Supreme Court is to be treated with the most profound respect; but we cannot close our eyes to the fact that the learned judge who spoke in this way in Edwards’ Appeal was rather inclined to make assertions which his brethren in subsequent cases where the point was directly involved have not hesitated to declare extra-judicial and unsound. There are many illustrations of this : See Patterson v. Swallow, 44 Pa. 490 ; Burk v. Gleason, 46 Pa. 297 ; Miller v. Franciscus, 40 Pa. 335; Kenyon v. Stewart, 44 Pa. 179; Fransen’s Will, 26 Pa. 202; commented on, in the order stated, in Yard v. Murray, 86 Pa. 113, and Massey’s Appeal, 88 Pa. 470; in Shumate v. McGarity, 83 Pa. 38, and Commonwealth v. Powell, 51 Pa. 438 ; in Warfield v. Fox, 53 Pa. 382, and in Clark v. Trindle, 52 Pa. 496 ; in Wilson v. Gaston, 92 Pa. 211, and Broe v. Boyle, 108 Pa. 82. See also Judge Sharswood’s comment on Wallace v. Harmstad, 44 Pa. 492 — a case in which homage is confounded with fealty — in Lecture on Feudal Law, 223, etc. It certainly would be a remarkable result of a law intended for the protection of married women, that a will made m immediate contemplation of marriage and containing a provision for the future wife, as such, should, contrary to her wishes, be struck down by the act of marriage, and that too in favor of persons not mentioned by the statute, it might be, remote, collateral relatives of the husband. Such an effect was not permitted in the case of a woman’s will, though the law ordinarily makes her marriage an absolute revocation: Lant’s App., 95 Pa. 284; and this, not on the mere ground of fraud, but upon the broad principle declared in Bond v. Bunting, 78 Pa. 219, and numerous other cases, that wherever a party has power to do an act not forbidden by law, and means to do it, the instrument he employs shall be construed so as to give effect to that intention. It cannot be doubted that the testator in the present case intended by 'this will, which was not to take effect until his death, and, therefore, not until after the contemplated marriage, that the lady whom he had contracted to make his wife should receive a larger share of his estate than the law would give her without the will; and he might have accomplished this by a marriage settlement with power of revocation. It cannot be supposed, that the will was meant as a sham or a pretence. The name by which the instrument is designated is immaterial; and if, treating it as a will, it would be, contrary to the intention of the maker, nugatory, it will, under the principle of Tanks Appeal, be allowed to take effect as a settlement. A trust for separate use, which can only exist where the beneficiary is a married woman, will be sustained if the marriage, when the trust was created, was in immediate contemplation; the marriage being treated, for the purpose of preserving the trust, as if it had actually taken place. It would involve no great strain of the statute to apply tins principle to a marriage made in pursuance of a previous contract and treat its completion by the performance of the marriage ceremony as relating back to the date of its inception; just as in case of a contract for the sale of lands, which, thereafter, as between heir and executor, are regarded as actually sold. How far the preservation of the will for a period of more than twenty-five years would, under the authorities, especially in connection with the act of June 4, 1879, P. L. 88, operate as a republication after marriage, is a question which need not be considered. In Long v. Aldred, 3 Add. 48, Sir John Nichol was of opinion that it would so operate. It is true there is a dictum of Judge Woodward in Fransen’s Will, 26 Pa. 202, that since the act of 1833 a will cannot be republished by parol. This might be where the effect was to revoke an intermediate will, without affecting the question presented in the present case. But the view expressed by Judge Woodward was not concurred in by Chief Justice Lewis and Judge Knox; and the remarks of Chief Justice Mercur in Broe v. Boyle, 108 Pa. 82, show that the court as now constituted, notwithstanding what was said in Fransen’s Will, look upon the question as still an open one. Upon the whole we are convinced that the views of the auditing judge as to the rights of the parties to this controversy were entirely correct; and the adjudication, modified in accordance with the first exception as to the amount distributed, is therefore confirmed. A final decree having been entered, the exceptant took his appeal, specifying as error the order confirming the adjudication of, the auditing judge.
121 Pa. 18Reichenbach v. Ruddach (1888)
PETITION FOR A MANDAMUS, UNDER STATUTE OF WESTMINSTER II., (13 EWD. I., C. 31). No. 150 July Term 1887, Sup. Ct.; court below, No. 490 December Term 1885, C. P. No. 1. On June 17,1887, tbe petition of W. C. F. Reichenbach and George J. Ruddach was filed in the Supreme Court, setting forth in substance: That on February 9, 1887, the trial of an issue devisavit vel non, directed by the register of wills in proceedings for the probate of the will of William H. Ruddach, deceased, was called for trial in the Court of Common Pleas No. 1 of Philadelphia county, before Biddle, J., in which issue the parties were, Mary G. Ruddach, executor of said will, plaintiff, and W. C. F. Reichenbach, George J. Ruddach and others, defendants, the several defendants being represented by separate counsel; that before the trial it was agreed in writing by all the counsel concerned that, as in that court there was no official stenographer, the testimony should be taken by a stenographer employed at the cost of the decedent’s estate, a long-hand copy to be furnished to the court and another to the counsel on each side; that under this arrangement the testimony, the exceptions noted to the rulings on the admission and rejection of testimony, the charge to the jury, the answers to both plaintiff’s and defendants’ points, with the exceptions thereto, were duly taken and copies furnished to the court and counsel on each side on the day after the termination of the trial on March 4, 1887, when a verdict was rendered in favor of the plaintiff in the issue. That at the close of the trial a bill of exceptions on behalf of all the counsel for the defendants was prepared, and was composed of the stenographer’s copy of the testimony, rulings, charge and answers to points, with the exceptions thereto, taken and furnished as aforesaid, bound as a book and making about 1500 pages of type-writing; that on March 11, 1887, one of the counsel for the defendants appeared in open court with the counsel for the plaintiff, when a disagreement occurred as to how certain exceptions should be sealed in the absence of another of defendants’ counsel, when the bill was marked, “ Presented, March 11, 1887, Chaig- Biddle, J.” ; that on the same day a note was received from the plaintiff’s counsel stating that the testimony of Magistrate Collins was not included in the stenographer’s report, which testimony had been read from the testimony taken before the register and had not been copied into the report at length; that on March 29, 1887, the said testimony having been copied out at length into the report, the plaintiff’s counsel was notified that the bill would be sealed the following morning at ten o’clock, but he replied by letter that under the rules of court he would insist on a copy of the bill and forty-eight hours notice of the sealing of it; that on the same day a notice was given the plaintiff’s counsel that the bill would be sealed at the residence of Biddle, J., on March 81, 1887, at 5:55 p. M.; that on the date last mentioned, the counsel met at the time and place appointed, when a full and complete copy of tbe bill of exceptions was tendered wbicb tbe plaintiff’s counsel declined to accept, insisting that be was entitled to bave a copy forty-eigbt hours before, and it was then too late, whereupon, tbe plaintiff’s counsel insisting upon bis objection, tbe judge refused to sign and seal tbe bill then and there presented; that on June 16, 1887, a writ of error bad been taken by tbe petitioners in tbe said cause praying, etc. Under tbe prayer of tbe petitioners tbe court on November 4, 1887, awarded an alternative writ in accordance with tbe provisions of tbe statute of Westminster II., 13 Edw. I., c. 31.* A copy of tbe bill of exceptions with tbe writ issued having been served, Biddle, J., made a return thereto which in its material parts was as follows : That for many years prior to said trial, at that time, and always since then, tbe rules of said Court of Common Pleas No. 1 bave provided, inter alia, as follows : § 5. All agreements of attorneys touching tbe business of tbe court shall be in writing; otherwise they shall be considered as of no vahdity. § 33. In every case where a bill of exceptions is tendered, tbe same shall be prepared in form, and presented to tbe judge within ten days after tbe verdict, § 35. In every case of a bill of exceptions, it shall be tbe duty of tbe party presenting tbe bill, within twenty days thereafter, to bave tbe same settled by tbe judge before whom tbe case was tried, on forty-eigbt hours’ notice, with a copy of tbe bill served on the opposite party; otherwise the judge shall not be required to seal the same. § 128. All notices shall be in writing. That on March 11, 1887, Bradbury Bedell, Esq., one of the counsel for plaintiffs in error, presented to this respondent a book alleged to be a bill of exceptions, and this respondent was requested to affix his seal thereto; but said alleged bill of exceptions was confessedly incorrect and incomplete, and the request to seal the same was withdrawn by Mr. Bedell, and at bis request the same was marked, in accordance with § 33 of the rules of court aforesaid, as follows : “ Presented March 11, 1887. Craig Biddle, J.” No agreement of any kind was made in relation thereto, either by this respondent, or by counsel for defendant in error, in this respondent’s presence or with this respondent’s knowledge. That on March 31, 1887, the parties by their attorneys appeared at the residence of respondent, 2033 Pine street. Up to that time no copy of the alleged bill of exceptions, or of the exceptions themselves, had ever been given to counsel for defendant in error. Mr. Bedell, of counsel for plaintiffs in error, then and there requested this respondent to seal said alleged bill of exceptions, but counsel for defendant in error objected, because he had not received a copy thereof, and had had no opportunity to examine the original, notwithstanding the rules of court as aforesaid, and notwithstanding the fact that he had twice written to counsel for plaintiffs in error calling their attention to said rules of court. Counsel for plaintiffs in error denied that they had received more than one such letter...... Mr. Bedell then stated that counsel for defendant in error had examined the alleged bill of exceptions, and had agreed thereto with the single change that the exceptions to the charge of the court should be sealed as exceptions for Mr. Ashhurst, instead of exceptions for defendants as prepared by him, Mr. Bedell; and that counsel for defendant in error had subsequently agreed to the same thing in the presence of this respondent. This was denied by counsel for defendant in error, who asserted that he had had no opportunity to examine said alleged bill of exceptions, and had not examined it, and that he had made no agreement of any kind in relation thereto. Said alleged agreements of counsel not being in writing, this respondent, under the rules of court as aforesaid, was obliged to consider the same as of no validity. As a matter of fact, no such agreement was made in the presente of this respondent. Counsel for plaintiffs in error then tendered to counsel for defendant in error an alleged copy of said alleged bill of exceptions, to be used in the then present sealing of the bill; but counsel for defendant in error refused to receive the same for that purpose, because not in compliance with the rules of court aforesaid. It was admitted at that time by all of the counsel for plaintiffs in error then present, to wit, Mr. Ashhurst, Mr. Bedell, Mr. Wakeling, and Mr. Hepburn, that there had been a failure on their part to comply with the rules of court as aforesaid; and, counsel for defendant in error insisting upon a compliance therewith, this respondent declined to seal said alleged bill of exceptions...... That as to the other alleged agreements between counsel, in said petition set forth, tins respondent has no personal knowledge of the same, and they were and are denied by counsel for defendant in error, and are not in writing, and must, therefore, under the rules of court as aforesaid, and under Rule VIII., of your Honor’s court, be considered of no validity. And this respondent further showeth to your Honors that he had no opportunity to examine such alleged bill of exceptions, until after the service of this writ upon him, when there was served upon him a copy of said alleged bill of exceptions, in which copy it is stated, among other things, that certain exceptions, seventeen in number, were taken by the defendants to the charge and rulings of this respondent, which were never taken by them in manner and form as therein set forth, nor were they noted or stated as so taken in the copies furnished by the stenographer as aforesaid. That said alleged bill of exceptions is, in this respect, in precisely the form in which it was on March 11, 1887, when it was presented to this respondent, as hereinbefore set forth, and he declined to seal the same because it did not correctly recite the facts. And this respondent avers that it is not a true bill of exceptions, and does not state the exceptions in manner and form as they were taken upon tbe trial of the cause...... Respondent respectfully submits that an order should be entered by your Honors that, this respondent go without day. To this return various exceptions were filed by the petitioners, in substance that it was vague and uncertain in its several averments, irregular and insufficient.
121 Pa. 30Large v. Steer (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 4 OE PUTT. A - DELPHIA COUNTY. No. 9 January Term 1888, Sup. Ct.; court below, No. 447 September Term 1875, C. P. No. 4. On October 9, 1875, David K. Large, guardian of Annie Warren, a minor child of William J. Warren, filed a bill in equity to the number and term of the court below, above stated, against Henry Davis, Mary Ann Davis and Edward J. Steer, charging that defendants were about to obtain possession of property of the said minor, in the occupancy of tenants, by proceedings before a magistrate under circumstances alleged to constitute an unlawful conspiracy and an attempt to defraud. On the same day the complainant filed an injunction bond, with James Kelm and James P. Wallace, as his sureties, in the sum of $1,000, and an injunction was awarded and duly served upon the defendants in the bill. An answer and a cross-bill were filed, testimony taken and the report of a master made, when on June 9, 1886, it was ordered: “By agreement of counsel, the bill in this case is dismissed without prejudice to either party to proceed at law by action of ejectment or otherwise.” In the meantime, Mr. Steer had proceeded in one of the Courts of Common Pleas to recover possession of the property with mesne profits. On July 9, 1886, an action of debt was brought upon the injunction bond in the Court of Common Pleas No 1. The cause was afterwards transferred to the Court of Common Pleas No. 4, on the ground that under the rules of court collateral actions were to be brought under the number and term of the original proceeding. The defendant Large, then pleaded non est factum; defendants Kelm and Wallace, non est factum, payment with leave, and a special plea reciting the proceedings in the equity cause and the decree of June 9, 1886. At the trial on April 18, 1887, before Thayer, P. J., the plaintiffs offered the injunction bond in evidence. The objection of defendants was overruled; exception.3 The record of the equity proceeding and of the ejectment having been put in evidence, with testimony upon the subject of damages, the defendants requested the court to charge the jury, inter alia: 2. There can be no recovery for mesne profits, as there is also an action pending in another court for damages under an ejectment suit, between the same plaintiffs and the principal defendant in this case, for the same property in question here.4 4. Under all the evidence the verdict should be in favor of the sureties on the bond, James Kelm and James P. Wallace.5 These points were denied in the instructions to the jury, who returned a verdict in favor of the plaintiffs for the sum of $462. A new trial having been refused and judgment entered upon the verdict, the defendants took this writ, specifying that the court erred, inter alia : 8. In admitting in evidence the bond in suit.3 4. In refusing the defendants’ 2d point.4 5. In refusing the defendants’ 4th point.5
121 Pa. 35Quigley v. Penn. S. V. R. (1888)
ERROR TO THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY. No. 137 July Term 1887, Sup. Ct.; court below, No. 24 March Term 1884, C. P. On December 15,1883, The Pennsylvania Schuylkill Valley R. Co., incorporated under the general railroad act of February 19, 1849, P. L. 83, for the construction of a railroad from Philadelphia to Pottsville, presented its bond with a petition for the filing and approval thereof, setting forth that it had located and marked out a railroad and desired to enter upon and take and occupy, for the purpose of constructing and operating its railroad thereon, “all the right, title, interest, claim and demand of Thos. J. Quigley of, in and to a certain private railroad siding situate in the borough of Conshohocken,” and the ground upon which the same rested, in so far as the same was located within certain lines and- descriptions, containing 288 square feet. The same day, notice having been given, the bond was filed and approved. On March 7, 1884, the company having entered upon and occupied the land thus bounded, and in so doing having taken away and destroyed, as was claimed, the private siding which for a number of years had been owned and used by Mr. Quigley in connection with a coal yard, flour and feed store, and as a means of access to the Philadelphia, Germantown & Norristown Railroad, operated as a part of the Reading system, upon the petition of Mr. Quigley viewers were appointed for the assessment of his damages, who filed an award in favor of the petitioner for $>4,628, from which award on April 26, 1884, the company appealed. At the trial, on May 26,1886, of the issue framed upon said appeal, near the close of the evidence it was made to appear, that the portion of land occupied by the company, defendant in the issue, had been laid out on the borough map as a portion of Washingtozi street, by the commissioners appoizited to layout the streets, but it had never been regularly opened, though open for anybody who chose to pass over it. The defendazit then raised the point that no recovery could be had in the statutory proceeding, as there was zro evidence that any change had been made in the grade of the street. The case was then re-opened, and after testimony relating to the subject of a change in grade was adduced, the case closed on the evidence. The court, Boyer, P. J., answered the points presented by ,the defendant and charged the jury, iziter. alia: For the recovery of damages against a-railroad company there are several laws which differ in their application according to the izrjury which is done. The law provides, that where property is actually taken there may be azi application made to court by either the railroad company or the person whose property it has taken, for the appointment of seven disinterested freeholders, who value the property and who znake report to couz’t, but from their award of damages there can be an appeal by either side, and then the case comes, as this has, before a jury in court for the final determination. But that law applies only-where land is actually taken by the occupatiozr of the railroad, except in one particular case. [When a railroad is cozrstructed upon a street iza a borough, damages in this way cazi be assessed ozrly where there is a change in the grade of the street by excavatiozi or embankmezit, and where such excavation or embankznezrt causes the injury to the property.] 1 In such a case as that, although no land is actually taken by the railroad company, they are still responsible in damages for the injury to the market value of the property abutting upon the street, so far as it is caused by any excavation or embankment in the street. The law reads as follows: “ That whenever any company shall locate its road in and upon any street or alley in any city or borough, ample compensation shall be made to the owners of lots fronting upon such street or alley, for any damages they may sustain by reason of any excavation or embankment made in the construction of such road, to be ascertained as other damages are authorized to be ascertained by this act.” Therefore injuries to property, although the property itself be not taken, are to be compensated for in the manner which I have explained to you; but where the injury is not caused by an embankment or an excavation made in the construction of the railroad, there, although property may be injured which fronts upon the street, this particular remedy does not apply. The person injured, however, still has his remedy. Before the late constitution was framed, a person, as the law formerly stood, who had property abutting upon a public street, but none of which was taken by the railroad, could recover no damages against a railroad company which constructed its road directly in front of the property, so long as it did not take any part of the land of the sufferer, however much he may have been injured by the railroad. But the present constitution provides that no property can even be injured without compensation by any corporation which constructs a railroad in front of it upon the street on which it abuts; no property can be injured though not taken for public use without adequate compensation ; and therefore, those who are thus injured have their remedy by an ordinary action at law. But they cannot proceed in this way unless they can show that there has been a change of grade in the street upon which their property abuts, which causes the injury either by an excavation or embankment. Therefore, whether you will enter upon the calculation of damages which have been suffered in this case, will depend upon whether you find that the injury to the property of the plaintiff has been caused by any excavation or embankment made by the railroad company on Washington street. [It is said on the part of the plaintiff, a siding leading into his property was destroyed. That siding was destroyed because it was necessarily constructed upon an embankment made by the owner of that property, leading from the Reading railroad by an elevated track on to his premises. . That was an artificial embankment in the street, and so far as it was an artificial embankment made in the street for this purpose, I charge you that no excavation of it, although it did destroy the siding, would be the subject of damages in this case, because this was a regularly laid out public street, and although it had not been opened by lawful authority, no property owner along it had the right under the law to build upon it, or to put any obstruction there which would interfere with the ultimate opening of the street, or, if he did so, he could not recover damages because of their abatement afterwards. The laying out of the street, according to the law under which it was laid out, was notice to all persons owning property fronting upon it that it was a public street, and that at some future time it would be opened and used as such; and therefore every man who put any obstruction into it, did so at his own risk, and he could hold no person responsible for its removal afterwards, when the space where it stood came to be used as a lawful public street. Therefore I instruct you, that you must find, apart from the excavation made through this artificial embankment, that the grade of Washington street in front of the plaintiff’s property was changed either by an excavation or by an embankment; and, if the general level of the street along there, as it originally existed, was not altered, but, after the completion of the railroad, the level was about as it existed before the artificial bank which supported the plaintiff’s siding was constructed, there can be no recovery of damages in this case. Nor would an infinitesimal elevation or depression of the street avail the plaintiff. It must be a substantial alteration by excavation or embankment, and it must have been of a character so as to cause the injury alleged to have been sustained by the plaintiff. I leave the- facts entirely to you. If you can find in this case evidence to justify you in finding such change of grade, and further that that change of grade caused the injury to the plaintiff’s property, then, and then only, will you take into consideration the question of what his damages amount to. If you find they were not caused by such change of grade, your verdict will be for the defendants; and the plaintiff will be left to pursue the other remedies which the law affords him.] a For he is entitled, if not in this form, in another form of action, to recover for all the damages which he has sustamed. If you find that the injuries to his property were caused in the manner in which I have explained, by excavation or embankment, apart from the removal of the artificial embankment which the owner of the property himself placed in the street, you will award the plaintiff such damages as you find he has sustained, measured by the depreciation in the market value of his property, with interest upon it from the 15th of September, 1883. The defendant asks me to charge you upon the following points : 1. The plaintiff having laid his siding on a public street, is a trespasser, and the defendant company being authorized to occupy said street with its railroad, had a lawful right to remove said siding without any liability to the plaintiff therefor. Answer : The plaintiff cannot be considered a trespasser in the ordinary seme, because he constructed the embankment in question for his business purposes in a street laid out but not to be regularly opened for public travel until future legal proceedings ; but he could only maintain his obstruction until the street was lawfully opened for public travel. Until then he could only maintain it subject to removal whenever the public exigencies required its abatement. When the railroad acquired its right to occupy the street, its excavation through the plaintiff’s artificial embankment did not make the defendant responsible for damages; and for that alone the plaintiff cannot recover in this action.3 4. Unless the defendant company made an excavation or embankment in the public street fronting the plaintiff’s property, there can be no recovery in this suit. Answer: This is affirmed.4 The jury returned a verdict in favor of the defendant. A motion for a new trial was refused and judgment was entered, when the plaintiff took this writ specifying as error : 1, 2. The parts of the charge embraced in [ ] 18 3, 4. The answers to defendant’s 1st and 4th points.3 4
121 Pa. 44Phil., W. & B. R. v. Chester City (1888)
FROM the decree oe the court oe common pleas oe DELAWARE COUNTY. No. 155 July Term 1886, Sup. Ct.; court below, No. 1 September Term 1884, in equity. On July 14, 1884, an agreement for an amicable proceeding in equity was presented, wherein The Phil., Wilmington & Balt. R. Co., was plaintiff and The Mayor and Members of the City Council of the city of Chester, their agents and employees, were defendants, wherein it was agreed between the said parties as follows: 1. That it shall be taken and considered that a proceeding to the above form is pending in the said court between the above parties, and that the same has proceeded by bill, answer and replication. 2. That the several ordinances, copies of which are hereunto appended and marked exhibits A and C, were enacted by the councils of the said city and approved by the mayor thereof; .that the agreement, a copy of which is hereunto appended and marked exhibit B, was executed by the respective parties thereto and delivered; that the sections of the several acts of the general assembly of the commonwealth of Pennsylvania, copies of which are hereunto appended and respectively marked exhibits D and E, are correctly stated as parts of the statutes enacted by the general assembly and approved by the governor of the said commonwealth; and that none of the ordinances, nor acts of assembly, nor the said agreement, nor any of them, have been altered, amended, repealed or canceled. 3. The said complainant avers that pursuant to the said ordinances and agreements and upon the faith thereof the said company has erected and donated to the said city, at a large outlay of money, the abutments and superstructure of a bridge according to the specifications of the said .agreement; and further, pursuant to and upon the faith of the said ordinances and agreement the said company has erected and constructed, at a large outlay of money, in the vicinity of the said Pennell street bridge, a block signal station, a water station, and has made alterations and arrangements with respect to the crossing and connection of the tracks of the railroad of the said company, at and near the point where the said street crosses the said railroad, so as to promote the convenience and safety of travel, both upon the said railroad and upon the said highway. 4. That the said mayor and council are about to enact an ordinance of the said city altering the grade of Pennell street mentioned in the said ordinances and agreement, and are about to change the grade of the said street and open the same, in such manner that the said street will cross the road bed and tracks of the said company, complainant, at a level grade, and thereby destroy the over-head crossing now existing, over the said bridge. 5. The said company, complainant, avers that by virtue of the said ordinances and agreement, and of the said above recited laws and all other laws applicable to the case; by virtue of the expenditures made by the said company in fulfilment of its part of the agreement which has been fully complied with by the company; by reason of many and extensive arrangements, appliances and fixtures made and constructed in and about the said Pennell street by the said company since the date of the said agreement, and upon the faith thereof, for the better insuring the safety and convenience of public travel both upon the railroad of the said company and upon the said street at the said crossing; and by reason of all the acts of the said parties under and pursuant to the said agreement and of all the circumstances surrounding the said parties at the date of the execution of the said agreement and since occurring, the said company, complainant, is entitled in equity, to have the said agreement decreed to constitute a valid and binding contract between the parties, whereby the grade of the said street has become established and should be maintained over the said railroad at the height in the said agreement specified, and to have a further decree enjoining the said defendants, or any of them, from the enactment of any ordinance or performance of any act whereby the grade of the said Pennell street shall be altered so as to make a level or grade crossing of the said street over the railroad, of the said company, or in any manner interfered with or altered contrary to the conditions and specifications contained in the said agreement, and that the damage is irreparable and said plaintiff has no adequate remedy at law. 6. That the said defendants deny the plaintiff’s averments and the legal and binding character of the said ordinances, agreement and laws, and the equities of the complainant thereunder. 7. That the court shall appoint an examiner and master to take testimony upon all facts in dispute between the parties and make report with the full power to such officers in equity, and that this proceeding shall continue by evidence, report and hearing, to final decree in all respects according to the rules and practice governing in equity proceedings; and if the court shall be of opinion, that the said company complainant is entitled to equitable relief in the manner herein above stated, then the said court shall enter a decree in favor of the said company complainant, in such form as to the court shall seem equitable and just, enjoining the said defendants and every one of them perpetually from altering or interfering with the grade of the street as hereinbefore specified; and shall grant such other relief as equity may require as fully as if a bill had been filed by the said complainant, with prayer therein for an injunction and relief: Otherwise the said court shall enter a decree in favor of the defendants with the same effect as if a bill filed in manner aforesaid had been dismissed; and it shall be considered that the said defendants have been enjoined in manner above stated with the same effect as if a preliminary injunction had been issued by the said court and continued until final decree or other order of the court. 8. That either party may appeal from the final decree and have the same reviewed by the Supreme Court, and that the costs shall be paid by the party against whom the decree is finally entered. exhibit A. Obdinance, directing the opening and grading of Pennell street, and changing the grades thereon between Third and Seventh streets. § 1. The Mayor and Council of the city of Chester do ordain, that the Street Committee of said council be and they are hereby authorized and instructed to open to public use and travel Pennell street, between Third and Seventh streets, according to the lines as they are noted on the approved plans of the city, and grade the same as hereinafter provided. § 2. The City Surveyor is hereby authorized and instructed to change the grade lines, and to mark the said changes on the plans of the city as follows: At a point 550 feet northwardly of the curb line of Third street, the grade upon either side of the street will be represented by the figures 34.00. * At a point 300 feet south of the curb line of Sixth street the grade upon either side of the street will be represented by the figures 41.15. Provided, That no contract for the opening or grading of said street shall be valid until an agreement be first had in writing with the President of the Philadelphia, Wilmington and Baltimore Railroad Company to erect good and substantial stone abutments and wing walls and span the same with an iron superstructure of an approved plan, and fully complete the same for public use and travel over and upon said streets. Enacted into an ordinance this 19th day of May, 1874. EXHIBIT B. This agreement, made and executed this second of July, A. r>., 1874, between the city of Chester, acting by the Mayor, President of Council and Street Committee of the Council thereof, of the first part, and the Philadelphia, Wilmington and Baltimore Railroad Company, of the second part: Witnessed as follows; that is to say: 1. For and in consideration of the undertakings and agreements hereinafter specified to be done and performed by the said Railroad Company, the said city of Chester hereby contracts and agrees, with the said Company, that Pennell street in the said city, between Third street and Seventh street, shall be open to public use and .travel; and that the grade of said Pennell street shall be established and fixed in accordance with the grades, lines and marks ordained by the Mayor and Council of the said city, by ordinance approved May 19, 1874, entitled: “ An ordinance directing the opening and grading of Pennell street, and changing the grades thereon between Third and Seventh streets,” the said grades being so established and fixed with the intent and purpose of having the said Pennell street cross the said railroad at such a height, not less than eighteen feet above the top of ties of the said railroad, as will permit the free operation of the same under the said street and prevent the dangers of a crossing of said railroad by said street at level grade. 2. And for and in consideration of the above recited contract and agreement of the said city, and of the establishment of the said grades as defined in the said ordinance, and with the intent a*nd purpose of preventing a level or grade crossing over the said railroad by the said street as aforesaid, the said The Philadelphia, Wilmington and Baltimore Railroad Company hereby contracts and agrees with the said city of Chester as follows, that is to say: To build over the said railroad where the said Pennell street crosses the same, at the grades hereinbefore recited, an iron bridge as before described, and donate the said bridge with the appurtenances hereinafter enumerated to the said city; the said bridge and appurtenances are particularly described and enumerated as follows, that is to say: The abutments to be built of large boulders of Port Deposit stone, laid in cement, to have a base one half the height; in length twenty-six feet, with wings parallel with the face of abutment, and steps one and one half to one; the superstructure to be of iron twenty-four feet in width, with wooden flooring, and capable of carrying a load of one hundred pounds per square foot, in addition to weight of structure, without straining any of its iron parts beyond ten thousand pounds per square inch. In Testimony whereof, etc. Exhibit C. was an ordinance of the city councils enacted August 17, 1874, ratifying and approving the foregoing contract. Exhibit D. was § 3, act of April 2, 1867, P. L. 678, conferring powers upon the city of Chester to regulate roads, streets, lanes, alleys, courts, etc., and the heights, grades, widths, slopes and forms thereof, with all other needful jurisdiction over the same. Exhibit E. was § 6, act of March 25, 1873, P. L. 376, as follows: § 6. That the Mayor and Council of the city of Chester, shall have power 'to grant to The Philadelphia, Wilmington and Baltimore Railroad Company, The Philadelphia and Baltimore Central Railroad Company, The Chester Creek Railroad Company, or any of them, or any of their successors or assigns, the use and occupation of the streets, lanes, courts, and alleys lying within three hundred feet of the said railroads, or any of them now opened or hereafter to be opened or established., to be used and occupied by the said railroad companies respectively, only so long as the said streets, lanes, courts and alleys shall remain open to public use and travel, and shall have the power to vacate any of the said streets, lanes, courts or alleys concerning which no grant as aforesaid shall have been made, subject to all the remedies of the owners of properties thereon to obtain compensation in damages, as are prescribed by existing laws in the case of opening streets in said city; such grants as aforesaid, when made and approved by ordinance of the Mayor and Council, shall be as valid and effectual to transfer the rights and privileges therein contracted for to the said railroad companies, or any of them, or any of their successors and assigns, as if made between individuals ; and the Mayor and Council of the said city shall have power to enact ordinances, from time to time, as they may deem advisable and expedient for the purposes of this act. Upon the filing of the foregoing agreement of parties, with the said exhibits, Mr. J. N. Shanafelt was appointed examiner to take testimony upon the facts in dispute and to make report thereof to the court. On November 2, 1885, the examiner’s report being filed, the cause was referred to Mr. O. B. Dickinson, as master, who on February 1, 1886, filed his report, which in part was as follows : It is essential to a satisfactory view of the evidence to first clearly understand the points of dispute to which it was intended to apply. The company complainant owns and operates a line of railroad extending through the respondent city with roadbed and appurtenances complete, and occupies within the limits of said city, substantially, if not precisely, the same site, and maintains the same grade as were occupied and maintained before the city of Chester had advanced to the dignity of a city or even of a borough. The locality of the dispute between the parties is where Pennell street running north and south crosses the tracks of the complainant. The grade of the railroad as established; the natural grade of the land, and the official grade of the street as originally established, would all call for a grade crossing at this point. The point, though on the line of the P., W. & B. Railroad, is within a few feet of the junction of its tracks with the tracks of the Chester Creek R. Company, a line controlled and operated by the complainants. The point is known as Lamokin Junction, and immediately south or southwest of it are situate Lamokin station and the round-house and car shops of the Chester-Creek Road. Almost in conjunction with the railroad buildings, but on opposite sides of the P., W. and B. Railroad tracks, two extensive establishments engaged in the manufacture of steel castings and railroad and other appliance have been erected and are now conducting their works. This point is also made the southern terminus of what may be termed, for the sake of description, a railroad line from Philadelphia to Chester. All trains of the Chester Creek Road starting .from Lamokin are required to run past Pennell street, in order to get back to Lamokin station on the main tracks of the P., W. and B. All these circumstances in the opinion of the managers of the railroad necessitated more frequent shifting of trains and a heavier amount of railroad travel at the place in question than on the general line of the road, and required special provisions for an overhead crossing for the protection of the traveling public both over the highway of the city and of the complainant. These are some of the reasons which supplied the motive on the part of the complainants to originally enter into the agreement now in dispute, and which influence them in upholding its binding character. The contrivance which was devised and accepted to meet the necessity of the situation as above understood to be, was an overhead bridge spanning the roadbed of the complainants at the hight of twenty feet one inch from rail to top of the floor of the bridge. On the other hand, the approaches to the bridge on the south side are so abrupt and so illy protected, and the bridge itself so much above the general level of the street of which it forms a part, that the residents of the locality deem it difficult and dangerous of access and as marring the appearance of the street. The location of the manufacturing establishments, railroad station and buildings above-mentioned, has practically closed the avenues of outlet on the west of Pennell street nearly if not quite to the western limits of the city, and in the wisdom of the city council the opening of the streets east of Pennell has been thought unadvisable if not indeed unfeasible. The locality both on the north aud south of the railroad has within the last few years rapidly increased in population, and now a population of several thousand in the heart of a populous city finds itself divided and separated by an impassable barrier of railroads, with absolutely no other means of communication, except Pennell street, from Kerlin street on the east to Lamokin street on the west, a distance of more than half a mile. At the time of the making of the disputed agreement Pennell street was unopened, and that portion of the city unbuilt, so that very little popular interest was excited in the question. Now, the locality is a well built part of the city, and as the improvements, which have since been erected, have been adapted to the original grade of the street and the change as made in pursuance of the agreement has been practically ignored, there is a vigorous popular feeling against the bridge being maintained as it is. The plan returned with the report of the examiner more accurately describes the bridge and its approaches than any words of the master could do. From the testimony and evidence in the cause, and the admissions of the counsel of the parties, the master finds in addition to the general facts above mentioned, the following: 1. The averments of .the complainants in the third clause of the agreement upon which the clause proceeds are, in the opinion of the master, supported by the evidence and therefore found to be true. The expenditure of money by them on account of the arrangement therein referred to, was at least the sum of $6,525.41, not including a subscription of five hundred dollars toward the grading of Seventh street. The latter for anything which appears before the master would seem to have been a gratuity, as it cannot be found in the agreement between the parties as forming part of the consideration. 2. The counsel for respondent have requested the master to consider the averment in the fourth paragraph o'f the agreement for this case, to be an admitted element of fact therein. 3. The master further finds as a fact, for whatever it may be worth as an element in the case, that the present condition of the southern approach to the present bridge crossing is such as to render public travel in vehicles over the same to be inconvenient, difficult and dangerous, and that it seriously detracts from the value of the street as a public highway : also, that a street admitting of easy, safe and comfortable passage at or near the present location of Pennell street is now a necessary convenience to the residents of the city and the traveling public, as it affords practically the only means of access and communication between the northern and southern portions of the South ward. 4. The master is also obliged by the evidence before him to find that these elements of danger and obstruction to travel result either from the manner in which the city has performed its part of the agreement between the parties, or from the natural difficulties of its undertaking, and that the complainant, as is conceded, has faithfully and diligently observed all its covenants and properly done the work marked out for it, with the single exception of leaving cracks and fissures in the floor of the bridge, permitting the passage of vaporous steam emitted by engines passing under it. This is, of course, a matter of easy remedy. o. The approaches to the bridge could, at small expense, be so guarded and protected as to eliminate many of the present elements of danger, and relegate the question of the relative merits in this respect of a grade and overhead crossing at this point to the abstract question of their respective merits under the best conditions..... 8. The bridge over the Philadelphia, Wilmington and Baltimore Railroad tracks which now forms part of the roadbed of Pennell street, is at the grade established by the ordinance of May 19, 1874. Many of the above facts have been found by the master because testified to by the witnesses and discussed by counsel. They are conceded to have not a very strong bearing upon the substantial legal merits of the controversy. The legal conclusions to which the master has arrived have been reached from a consideration of but few questions. The due execution and delivery of the paper, upon the legal character and effect of which depends the respective rights of the parties to this suit, is admitted by the agreement for this action. That the party complainant has fully paid the consideration, the master finds is a fact. It is contended on behalf of the complainant that a fair construction of the instrument and of the preliminary and ratifying ordinances to which it refers, and with which it is accompanied, would make it evident that the intentions and meaning of the parties were, that Pennell street be opened to public use and travel, and that the grade thereof, on either side of the right of way of the complainant, be thereafter maintained at the grade which by said paper and ordinances was “ established and fixed.” It was further urged that it must be evident to all unprejudiced minds that the purpose sought to be accomplished and the object which all the parties had in view, was the establishment and maintenance of an overhead crossing at this point; that whatever opinions may be entertained of the legal effect of this paper, the consideration moving from the railroad company and the contemporary acts, and construction given to it by tbe parties, preclude all right as to what was meant; that the complainants moreover have, by the exercise of unquestioned good faith on their part, entitled themselves to the right to seek to uphold in all its integrity a bargain fully understood and fairly entered into. On the other hand, as they were dealing not with the public, the real party in interest, but with persons who were known- to act only in a representative capacity, they assumed the risk of the authority of the agent to bind the principal; and the legal and moral right of the principal, who feels he was worsted in the bargain, to test the powers 'of the agent, must likewise be conceded. This brings us to a consideration of what is really the only question in the case, the binding character in law of the agreement of the parties as gathered from the ordinance of May 19, 1874, and August 17,1884, and the instrument of July 7,1874. Under the foregoing findings of fact, the master, discussing Goszler v. Georgetown, 6 Wheat. 593; § 3, act of April 2,1867, P. L. 678; § 6, act of March 25, 1873, P. L. 376 ; act of June 9, 1874, P. L. 282; act of June 19, 1871, P. L. 1360; and § 12, act of April 4, 1868, P. L. 62, held that the validity of the. contract must depend, if upon anything, upon the act of March 25, 1873; that while a municipality has no power to make a contract which would control or embarrass its legislative powers over its streets, or prevent its regulation of their use by all persons: Presbyterian Church v. New York, 5 Cow. 538; State v. Stuyvesant, 7 Cow. 588; Pullman v. Mayor of New York, 34 Barb. 169; N. Y. & H. R. Co. v. Mayor of New York, 1 Hilt. 562; Maryland v. Graves, 19 Md. 351; yet, where the legislature of the state has by clear enactment conferred upon the municipality the power to contract with respect to a given subject, and the municipality does so contract, it is irrevocably bound by if, even though the effect may he the impairment of a legislative function: C. & S. R. Co. v. Carthage, 36 Ohio 631. But every intendment would be against the existence of the power in a municipality to barter away the rights and franchises essential to the maintenance of all its functions in their full rigor: Addis v. Pittsburgh, 85 Pa. 379; Fowler v. Bank of Pittsburgh, 72 Pa. 456; Duncan v. Penn. R. Co., 94 Pa. 444; Branson v. Philadelphia, 47 Pa. 332; Southwark R. Co. v. Philadelphia, 47 Pa. 314; Sharpless v. Philadelphia, 21 Pa. 162. The master then proceeded: In the light of these decisions and many others which might be cited, was the power attempted to be exercised through the ordinances in question conferred by the act of March 25,1873? It is conceded that if it was not given by this act it clearly was not by the others. In the first place, did the property which is the subject matter of the agreement belong to the city, in what may be termed its individual corporate capacity, or belong to it in its public political character? If the former, the complainants have a clear right to hold them to their bargain: Western S. Fund v. Philadelphia, 31 Pa. 175. A mere glance at the contract resolves this question against the complainants. The subject matter of the contract was a public highway. The strictest rules must therefore be applied against the grant of power. This act of assembly confers in plain and unambiguous terms upon the mayor and council of the city two powers: (1.) To grant to the complainants the use and occupation of all streets lying within three hundred feet of the railroad to be used and occupied by it only so long as the said streets shall remain open to public use and travel. (2.) To vacate any of the said streets concerning which no grant as aforesaid shall have been made. 1. It is apparent that the same right cannot be claimed as conferred by virtue of both these powers, for they are mutually destructive. The complainant can claim the right to use and occupy the street only so long as it is open to public use and travel, and the city can vacate only when the right to use and occupation has not been granted to the railroad. It would also seem clear that the assertion of the right which the complainant is insisting upon, is itself a denial of the power of the city to grant that right under the first of the above enumerated powers. The moment they establish the validity of their contract as a grant of the use and occupation of the street, eo instante they establish also a similar and equal right to the public. The use and occupation need not be necessarily a horizontal one, per Lewis, J.: Commonwealth v. Railroad Co., 27 Pa. 344, but whatever their right is, it is enjoyed in éommon with the public and cannot be exclusive. 2. The validity of their contract, therefore, must. depend upon the power of vacation. Was Pennell street vacated by the ordinance of May 19, 1874? If the ordinance accomplished any such result it was the very opposite of that declared by the title to be the intention of its passage, for it is entitled “ Ordinance directing the opening and grading of Pennell street and changing the grades thereon,” etc., and it is also in direct violation of the solemn undertaking of the city. It was contended before the master that the purpose was to vacate the portion of Pennell street occupied by the railroad. If such was their purpose, it is .clear thát they failed to carry it into effect. The ordinance and agreement both provide for nothing to be done by the city other than the opening and grading of the street. Waiving the question whether the legal import of the words used make out an undertaking on the part of the city to forever maintain the grade as fixed and established by the ordinance of May 19, 1874, the master concludes that the act does not disclose with sufficient clearness the existence of the power in the city council by whom the ordinance was enacted, to prevent the exercise by the present or any future council of the same right which they claim and exercise for themselves. There is another view of the case which the master has not stopped to elaborate, but which is equally fatal to the complainants’ case. Admitting the power of the- then council to enter into the contract referred to, the contract when made and the rights of the parties under it, as under all other contracts entered into by any other persons, were necessarily subject to legislative powers and authorities confided to the municipality in its public political character: As the right to enforce police regulations or abate nuisances: Presbyterian Church v. New York, supra; Stuyvesant v. Same, supra. Also the right of eminent domain: In re Towanda Bridge Co., 91 Pa. 216. In neither view, of course, is the right of the complainants to recover compensation for the damages which may be suffered by it by reason of the change of grade, affected or intended to be passed upon. It remains only to discuss briefly the remaining general question proposed. 3. Are the complainants in any event entitled to the injunction which they ask? It is settled law that the court will not inhibit the passage of an act of assembly or ordinance because of its alleged invalidity as the “ impairment of a contract.” They will always wait until some act is attempted under it and then restrain the unauthorized act: Smith v. McCarthy, 56 Pa. 359; Chicago v. Evans, 24 Ill. 52; Des Moines Gas Co. v. Des Moines, 44 Ia. 505; Sheridan v. Calvin, 77 Ill. 237; Milhan v. Sharp, 15 Barb. 195 ; s. c. 9 N. Y. 263; Davis v. The Mayor, 14 N. Y. 506. If the position of the complainants on the general question be a sound one, the passage of the threatened ordinance without more, will damage them nothing. When steps are taken by the city to make the ordinance available, the courts may be asked to interfere. The master would therefore recommend a decree in favor of the respondents and against the complainant in conformity with the agreement of the parties to this action, dissolving the preliminary injunction supposed to have been issued and dismissing the bill of complainant with costs. Various exceptions to the foregoing report were overruled by the master, and were then renewed in court. On argument thereof, the court, Clayton, P. J., on June 7,1886, filed the following opinion and decree: The very able report of the learned master to whom the case was referred, leaves but little if anything more for consideration. It will hardly be seriously contended that a municipality, by any form of ordinance or agreement, can deprive itself of any of its delegated powers. It is a mere trustee invested by the sovereign power of the state with the exercise of certain powers for the good of the people of the town. No matter what the consideration, or how honest the intention of the parties, the city, in this case, had no more right to bargain away the control of the future municipal authorities over its streets than an ordinary trustee could sell in fee the lands held by him in trust, without the power of alienation. The roads and streets of the country belong to the state. The city is but the agent of the state. The delegated power of the city is well defined. It must exercise the necessary police authority over the streets, must keep them unobstructed and in good and safe traveling order. It may fix grades and change them as public exigencies may require. It may bridge over or tunnel under dangerous places, and in a word do whatever, in its judgment and discretion, is necessary for the public good. The instant it exceeds any of its delegated powers or attempts to bind itself from their honest exercise, its acts are ultra vires and void. Among the student’s first lessons is the rule for construing statutes: “ Acts of parliament derogatory from the power of subsequent parliaments bind not.” It may be conceded that the state could make a binding contract for a sufficient consideration with a private person or corporation. It could, therefore, delegate that power to the city, and the sole and single question in this case is, has it done so ? The plaintiff claims that the act of March 25, 1878, P. L. 376, gives to the city the necessary authority. A careful reading of the act clearly shows that it has no application whatever to the case. The authorities are uniform that such legislation, to be effective, must be clear and unambiguous,, and is to be strictly construed in favor of the government. The object of the act was not to regulate bridges over, or tunnels under, the railroad. Its purpose was to give the city power* in its discretion, to permit the railroad to occupy certain streets therein named. Nothing but the'most liberal and enlarged construction can give to the statute the meaning contended for by the plaintiff. The reasoning of the master, and the authorities cited by him in support of his views, are conclusive upon this point. I entirely concur in all the conclusions to which the master has arrived. The exceptions are overruled and the bill dismissed with costs to the defendants. Thereupon the plaintiff took this appeal specifying as error' the decree dismissing the bill with costs to the defendants.
121 Pa. 65Crosland v. Mutual Saving Fund (1888)
ERROR TO THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY. No. 147 July Term 1886, Snp. Ct.; court below, No. 61 November Term 1882, C. P. ' On September 12, 1882, The Mutual Saving Fund, of Potts-ville, presented its petition under the special act of May 13, 1871, P. L. 820, entitled, “An act to obtain possession of real estate by purchasers at coroners’, sheriffs’ and Orphans’ Court sales within the county of Schuylkill,” and sought thereby to obtain possession of a certain lot, 20 by 50 feet, in the borough of Pottsville. To the rule issued upon this petition an answer was filed by John M. Crosland and others, that they did not hold under John J. Crosland as was alleged, but as the heirs at law of Catherine L. Crosland, deceased. A hearing was had resulting in an issue as in an action of ejectment, wherein the petitioner was made plaintiff and the respondents defendants. The plea was, not guilty. At the trial on November 30, 1885, the plaintiff made out its case in chief by showing: On July 15, 1867, Harrison Hyland conveyed to John J. Crosland a lot, 40 by 50 feet, at the corner of East Norwegian and George streets, on which lot there were afterwards erected two contiguous dwellings, one of which with the portion of the lot on which it was. erected was the property in dispute. On November 29,1872, John J. Crosland executed a mortgage for $3,000, upon the entire lot, as conveyed to him by Hyland, to the Mutual Saving Fund, the lot then being subject to a prior mortgage to one Bertram for $600. A judgment in scire facias was obtained by the Mutual Saving Fund on April 26, 1880, upon which a levari facias was issued and the mortgaged property sold thereon in March, 1882, to the mortgagee, the plaintiff in this suit. The defendants’ case in substance was as follows: After his purchase from Ryland, John J. Crosland, proposing to build a double house upon the lot, had his mother Catherine L. Crosland advance him about $3,100 in money, under a parol agreement with her that the corner building, with a store room on the first floor was to remain his own, and the other one with the part of the lot on which it was to be erected (the property in dispute) was to belong to her. The buildings were erected, under this arrangement, both under one roof, but in other respects separate and without means of communication. They were finished in 1868, and Mrs. Crosland put a tenant into her dwelling and, as was claimed, received the rents therefor and had tenants therein until after the execution of the plaintiff’s mortgage. On August 5, 1872, a deed was executed and delivered by John J. Crosland to his mother, in pursuance of said -arrangement. This deed was recorded on September 1, 1877, and Mrs. Crosland died on October 13,1879, leaving the defendants as her heirs at law. It was claimed that the plaintiff had notice, by. direct information, of the deed to Mrs. Crosland of August 5, 1872, at the time when the loan secured by its mortgage was obtained. To impeach the defendants’ title, the plaintiff denied that it had notice, actual or otherwise, of the conveyance to Mrs. Crosland, and claimed from the facts elicited on the cross-examination of the defendants’ witnesses and in its rebuttal, that there was collusion between Mrs. Crosland, John J. Crosland and Johii M. Crosland, his father, to defraud the plaintiff; that when the loan of 1872 was obtained the property offered as security by the borrower was a double threesstory brick store and dwelling; that the entire property was assessed in 1869-77 to John J. Crosland; that on May 29,1874, John J. Crosland obtained an additional loan for $1,400, negotiated for by John M. Crosland, his father, the security offered, accepted and embraced in this second mortgage being the same property with the same double brick house: That this last mortgage was acknowledged before John M. Crosland, who was a justice of the peace; that on February 5, 1875, as further protection upon the loans, John J. Crosland obtained ah insurance for $2,000, “on a certain three-story brick tin-roofed store and dwelling house” and assigned the policy to the plaintiff, as security “for certain loans made by me on above described property,” and on the same day, Mrs. Crosland obtained an insurance for $1,500, and assigned it to the plaintiff as security “for certain loans made John J. Crosland, on the above described premises; ” that the transfer of this policy was witnessed by said John M. Crosland, and approved by him as agent of the insurance company. John J. Crosland, a witness for defendants in chief, on cross-examination: Plaintiff’s counsel propose to show by this witness on cross-examination that in 1874 he procured a second loan upon the property in controversy and the adjoining property; that he represented at that time that he owned both properties; that he took the committee, not only at the time the first loan was required but at the time the second loan was required, either took them or sent them, to this property for the purpose of examining, and either by himself or his agent made representations as to the value of the property in controversy, and that it was unencumbered except as to the Bertram mortgage; that the committee went and examined the property at either his or his agent’s instance and reported favorably, and he exeeuted a mortgage upon both properties, the property in controversy and the other property adjoining for $1,400, and obtained the money from this association on the seven shares bought out: For the purpose of laying ground for contradiction, and for the purpose of showing that the representations made in 1874 as well as in 1872 are inconsistent‘with the allegations that he notified this company that he had conveyed to his mother. Objected to: (1.) That it is not a cross-examination. (2.) As it relates to another and a different transaction made at another and different time, it is immaterial and irrelevant. (8.) That it does not contradict, impair or impeach the declarations that were made at the time the mortgage was given on which this property was sold. (4.) There is no evidence of any $1,400 mortgage. If there is such a mortgage it necessarily must be in writing. It must speak for itself, and it is incompetent to prove by parol evidence the existence of sudh a mortgage and its contents or any part of it. By the court: Evidence admitted.4 The same witness: Q. Was not this mortgage of 1874 read to you before you signed it ? Objected to. Plaintiff’s counsel: It is for the purpose of showing that he signed it understandingly and knowing exactly what its contents were. By the court: A long while ago this witness answered this question, saying “ I do not remember,” etc. They may repeat the question and you may state your objection to it.5 Plaintiff’s counsel propose to prove that he made a second loan in 1874 of $1,400 upon the same property, covered by the first mortgage, under the same representations upon which he procured the first loan. Objected to, as not a cross-examination, and as irrelevant for any purpose. By the court: We think we will allow him to answer the question and give you an exception.6 Plaintiff’s counsel offer in evidence mortgage dated May 29, 1874, for $2,800 conditioned for the payment of $1,400; also on condition that he pay monthly on each and every share of stock now held by him or that hereafter may be held by him, until the said association shall terminate and cease to exist, the interest at the rate of one half per centum on the sum of $1,400 loaned him as aforesaid, etc., on the property on George and Norwegian streets, 40 feet front on Norwegian and 50 feet in depth, being same premises described in previous mortgage: acknowledged before John M. Crosland, J. P.: Offered as a circumstance bearing upon the question of notice having been given to this association of the title of Catherine Crosland: also as evidence going to contradict the evidence of John J. Crosland that he gave notice to the committee to examine and report upon this loan. To be followed by evidence by the members of the committee and the board of directors that no such notice was ever given by the defendant, John J. Crosland, and that they never had any knowledge, notice or information of any such outstanding title until it was communicated to them some time in the year 1878, when proceedings were about to be commenced upon this mortgage; and as a circumstance, to be followed further by the evidence that John J. Crosland and John M. Crosland, with the intent to cheat and defraud this association, conspired to execute this deed and obtain this loan by suppressing the facts, and without putting their deed upon record until three years after these loans were procured, and until after John J. Crosland had defaulted in his payments to the association, and until proceedings could be commenced under the mortgage. To be followed by further evidence that the deed to Mrs. Crosland was not executed on August 5,1875, or, at all events, never delivered, and that it was never used nor claimed under, until after default was made upon this mortgage, and then only for the alleged purpose of allowing John M. Crosland as terre-tenant to ask to open this judgment. To be followed further by evidence that John M. Crosland as the agent of John J. Crosland applied for this second loan in writing, and expressly stated that this loan was to be secured upon both of those brick houses, and that it was free and clear of all incumbrances except the prior mortgage of this association and the $600 Bertram mortgage. Defendants’ counsel objects: All of the offer, except that portion which proposes to show that the deed which the defendant has put in evidence from J. J. Crosland to his mother was not delivered and was not founded upon a valid consideration, is objected to as not rebutting evidence, not contradicting or tending to contradict the fact of notice conveyed to Doman, and therefore incompetent. By the court: Admitted.8 J. J. Cake, for the plaintiff in rebuttal, testified that he was secretary of the plaintiff society. Q. When did John J. Crosland first become in arrear? Plaintiff’s counsel propose to show the time when Mr. Crosland'first became in arrear: that' soon after that the assessments were changed and, about that time or after about six months had elapsed when the mortgage could have been foreclosed, then they learned for the first time that Catherine L. Crosland had a claim to this property, for the purpose of fixing the date so as to bear upon the question of concealment of this title and deed until such time when they became in arrear and the mortgage was enforceable; that they changed the assessment in the books and changed the apparent ownership of the property, as bearing upon the question of fraud and mala tides of the transaction. Defendants’ counsel objects, that the testimony contained in the offer is not rebutting evidence; that it is immaterial when Crosland became in arrear. By the court: I suppose it appears from the record in evidence in this case, declarations and answer filed, which are all in evidence, when the parties came in default. If he knows the time when the defanlt began he may state it. Plaintiff’s counsel: I will alter my offer so as to call the witness’ attention to the first time he was informed in conversation with JohnM. Crosland of the transfer of this property from'John J. to his wife, and what was said at that time by John M. Crosland to him as representing John J. Crosland and about his ability to pay and abont his being in arrear. Objected to by the defendant as the declaration of a stranger, at this time, to the title. By the court: Admitted.9 I would like to have anything said as representing John J. Crosland. A. On September 24, 1878, at a regular meeting of the board of directors Mr. Crosland appeared and made the following statement. John J. Crosland had previously been notified of -his arrears and certain action of the board. Mr. Crosland stated that his son, John J. Crosland, was over six months in arrear for dues, interest and fines; that owing to the stringency of the times it had so far been impossible for him to make the payments required by the saying fund, neither could he confess judgment as required by the saying fund, as the property did not belong to John J. Crosland, but to his mother. He stated also that, if the association intended to push on the mortgage, they intended to employ a lawyer and contest the claim of the association. Q. Did Mr. Crosland at that time state when the title of Mrs. Crosland was acquired? A. No, sir; I think not, at least I do not know" of it. I have no record of it. He may have stated it. Q. Did you know or did you hear prior to that date of any transfer of this property to Mrs. Crosland? A. The first information I had. The court, Bechtel, J., after fully reviewing the evidence charged the jury as follows: John J. Crosland acquired title to the premises in question under a deed from Harrison Byland, dated July 15, 1867, which deed is recorded in deed book 101, page 439, on February 12,1868. The said John J. Crosland executed a mortgage to the Pottsville Mutual Saving Fund, under which the plaintiff claims title, dated November 29, 1872, which was recorded on November 30,1872, in book “ O. 0.,” page 59. His deed to Catherine L. Crosland bears date August 5, 1872, and is recorded on September 1, 1877, in book 148, page 69. From these dates, found in this last mentioned deed, and the mortgage, it appears that the mortgage, which was recorded the day following its date, was first recorded, and was of record nearly five years previous to the recording of the deed of Catherine Crosland. Deeds and mortgages are both wdthin our recording act, and when two different parties purchase from the same grantor, he who purchases first must record his deed within six months, in order that he may protect himself as against the second or subsequent purchaser, in the absence of actual or constructive notice to the second purchaser, of the title of the first purchaser at the time that he, the second purchaser, made his purchase or obtained his deed. We say, therefore, to you that the record of these two instruments to which we have directed your attention, is such, that in the absence of actual or constructive notice to the plaintiff of the existence of the deed of Catherine L. Crosland, at the time the mortgage was given, or prior thereto, the mortgage would be prior in right by reason of the failure of said Catherine Crosland to record her deed in time. But the defendants claim that the plaintiff had actual or constructive notice, or both, at the time it received the mortgage, and that therefore the plaintiff’s position is the same as it would be had Catherine Crosland recorded her deed within the time mentioned in our recording act. This makes it necessary that we should instruct you upon these subjects. Distinct, unequivocal and actual possession is sufficient to put a purchaser on inquiry, and amounts to constructive notice. A purchaser is bound by the fact of such possession to make inquiry as to the state of the title, and is chargeable with notice of the actual condition of the title, which such inquiry would have developed. Actual notice may, of course, be given by direct information to the party about to become the second purchaser, or by information to the authorized agent of the party about to become the second purchaser, of the existence of the first deed. [We are disposed to think that notice to the attorney of the saving fund, if given to him as such attorney, would be equivalent to notice to the saving fund, for it would be a part of his duty to examine the title to the property offered as security for loans, and such information or notice would bear upon the question of title.] 10 [Keeping this in mind, inquire, is the deed from John J. Crosland to Catherine L. Crosland an honest, bona fide conveyance of the land it describes, and not. intended by the grantor and grantee to hinder and delay or cheat and defraud the Pottsville Mutual Saving Fund; for, if it was intended by these parties to hinder and delay or cheat and defraud this plaintiff, then it passes no title to the property it describes, as against the mortgage of the plaintiff, and in case you so find, the plaintiff would be entitled to your verdict for the premises in controversy.] 11 [If you find it was not intended to hinder and delay or cheat and defraud the plaintiff, and was executed and delivered to Catherine L. Crosland or to any one for her prior to November 29,1872 (the date of the plaintiff’s mortgage), and further find, that said Catherine Crosland was in the actual, distinct and unequivocal possession of the house and lot which her deed describes, in pursuance of her deed, prior to and at the time the saving fund obtained its mortgage, to wit, November 29, 1872, then we say that such possession was constructive notice to the saving fund of her title and made it the duty of the saving fund to inquire as to her title; and, therefore, if you thus find, the defendants would be entitled to your verdict.] 13 [If you find that Catherine Crosland's deed was honest, bona fide and not intended to hinder and delay or cheat and defraud the plaintiff, and further find that notice was given to the saving fund at or before the time the mortgage was given to it, that such deed was in existence and that said Catherine L. Crosland claimed the premises under such deed, then we say, such notice served the same purpose that the recording of the deed within the time required by law would have served, and in case you so find, the defendants would be entitled to the verdict.] 13 [If you find that Catherine Crosland’s deed arises out of an honest transaction and was not designed by the parties thereto to cheat and defraud or hinder and delay the plaintiff, but further find that she did not have such actual, distinct, unequivocal possession as we have heretofore directed your attention to, and that no actual notice of her title was given to the Potts-ville Mutual Saving Fund, or to its authorized agent, at or before the time John J. Crosland executed and delivered the mortgage to the saving fund, then in case you so find, the plaintiff had neither actual nor constructive notice of Mrs. Crosland’s title, and the title passed by virtue of the sheriff’s sale to the plaintiff under the mortgage and you should find for the plaintiff.] 14 The defendants request us to instruct you as follows : 1. If the jury believe that Catherine Crosland the deceased mother of the defendants, with money, her own separate property, gave to John J. Crosland about $3,100 with which to erect the house upon the lot in question, with an agreement that she should own it, and that after the erection of the same, the said John J. Crosland executed the deed dated August 5, 1872, to the said Catherine Crosland, such deed vested a good title to the property in the said Catherine Crosland which passed by her death to her heirs, defendants on the record. Answer: To' prove a parol sale of lands the proof should and must be clear, precise, distinct and satisfactory. Keeping in mind what we have said to you concerning the consequences of the failure to record the deed from John J. to Catherine Crosland, and the effect of actual, distinct and unequivocal possession in her, and of actual notice to the plaintiff or its authorized agent of the existence of her deed, as well as that which we said touching the bona fides of her conveyance, we affirm this.15 3. If the jury believe that Catherine Crosland took possession of the house and lot in suit, in the latter part of the winter or early in the spring of 1868, by her tenant, under a claim of title, and continued the possession by her tenants, up to and at the time the mortgage was given, under which the plaintiff claims title, the plaintiff had notice of the title of Catherine Crosland, and her title was not affected by the sheriff’s sale, under which the plaintiff claims; and if the jurjr find her deed from John J. Crosland to have been founded upon a consideration and a bona fide transaction, the verdict must be for the defendants. , Answer: The possession of tenant is notice of his own title as tenant, and also of that of the landlord under whom he holds; and a purchaser is bound by the fact of such possession to make inquiry as to the state of the title, and is chargeable with notice of the actual condition of the title which such inquiry would have developed. If, therefore, you find the facts to be as they are here stated in this point, we affirm. On the part of the plaintiff we are requested to instruct you as follows: 1. The defendants being the holders of an unrecorded title, in order to prevail against the plaintiff’s mortgage for value, they must show affirmatively that the plaintiff had actual or legal notice of the prior right when it made the loan and took the mortgage in 1872; and defendants must show it clearly, for they are endeavoring to escape from the recording acts by an equity ; the defendants cannot ask a jury to find or assume that the plaintiff had notice without positive evidence of the fact. Answer: We allirm this.17 2. The plaintiff was not bound to inquire of occupants, if there were any, of the premises in dispute, unless there was such a visible state of things as was inconsistetit with the right iñ John J. Crosland to mortgage the premises ; and to affect the plaintiff with constructive notice or to make it a duty to inquire, the possession must have been clear, open, notorious, unequivocal and actual, such as would suffice to constitute a disseizin or adverse possession. Answer: This point states the rule substantially as given to us in the case of Meehan v. Williams, 48 Pa. 240, which has been approved in late cases, and we therefore affirm it.18 8. If the property in suit was built with the building occupied by J. J. Crosland and is a part of the same building under one roof, commonly denominated a double house, one of which was during 1872, at the time the first loan was made by Crosland, occupied by John J. Crosland, and the other if occupied was by a tenant, and at the time of the making of the first mortgage there were no front porches to the house in suit, and it was otherwise apparently unfinished, and the rents of the tenants were sometimes paid to John J. Crosland, and if the facts were such as to appear to an observer that the two houses were one property, there was not such clear, unequivocal evidence of possession in Catherine L. Crosland as to make it a duty of the plaintiff to inquire of the occupants, if, any, of said premises, and the plaintiff is entitled to a verdict for the whole of said premises. Answer: We have heretofore instructed you as to the character of possession that would be sufficient to put the plaintiff upon inquiry, and we say, keeping that in view, if you find the facts in this respect to be as they are here stated, we affirm it.19 The verdict of the jury was in favor of the plaintiff, and when judgment was duly entered the defendants took this writ specifying as errors, inter alia: 4-6. The admission of plaintiff’s offers.410 6 8-9. The admission of plaintiff’s offers.8 9 ,, 10-14. The parts of the charge embraced in [ ]10 t014 15. The answer to defendants’ 1st point.15 17, 18. The answer to plaintiff’s 1st and 2d points.17 18 19. The answer to plaintiff’s 3d point.19
121 Pa. 84Heffner v. Chambers (1888)
No. 378 January Term 1887, Sup. Ct.; court below, No. 49' July Term 1884, C. P. On May 9,1884, an action was brought by Harman A. Chambers against Samuel Heffner to recover commissions claimed for services alleged to have been rendered in the sale of a tract of coal land for the defendant.
121 Pa. 97Goulden v. Scranton City (1888)
A court of equity will not restrain a municipality from the reconstruction and enlargement of a culvert across a street, upon the bill of a property owner alleging that the proposed work will cause injury to his lot by the increased force and volume of water east upon it.
121 Pa. 109Commonwealth v. Fitzpatrick (1888)
ERROR TO THE COURT OP OYER AND TERMINER OP LACKAWANNA COUNTY. No. 294 January Term 1888, Sup. Ct.; court below, No. 4 October Term 1886, O. & T. On September 28, 1886, the grand jury returned as a true bill an indictment of Peter Fitzpatrick, F. W. Fiedler, F. L. Ross, Bernard McCabe and John J. Keefe, charging them, in the first count, with the murder, and in a second count, with the voluntary manslaughter of James W. Baird on the night of August 31.1886. At the trial on January 31, 1887, the defendants were formally arraigned, and pleaded not guilty, when a jury were empaneled and sworn. At the close of the case, on February 1st, the defendants’ counsel requested that the 'jury should be instructed that the evidence was insufficient to warrant a conviction of the defendants. This instruction was refused, the court, Hand, P. J., charging, inter alia: First: As to the question of murder: The commonwealth does not press for a conviction of murder in the first degree, and we say to you that the evidence does not show such a premeditation, in this case, as would warrant a conviction of murder in the first degree. But was there murder committed there that night? If there was, it would be murder in the second degree..... As we have said, there is not sufficient evidence to find murder in the first degree. If you find the blow was unlawfully inflicted by any, with all of these defendants aiding and abetting, in a fight, in heat of blood, then for such a defendant as you find implicated in this killing, your verdict should be guilty of manslaughter. You may find the evidence warrants you in convicting one, or two, or more of the defendants, and •in acquitting the rest; if so, you will render your verdict in that manner..... On February 2, 1887, the jury came into the court and through their foreman stated that it was not possible for them to agree, and asked to be discharged. The court refused the request and gave additional instructions, when the jury again retired. A like statement and request were made on February 4th, and a discharge refused, the court saying: “ Of course w'e will have to keep you together as long as the term lasts, and then the question will come whether we can discharge you or not. The responsibility may then be placed upon the court; but until the term expires there is no responsibility upon the court, and we have no authority to discharge you. It is a right that is given to the defendants, and of course we cannot interfere with it; the jury must agree.” On February 5, 1887, the jury again came into court: By the court: Gentlemen, you have made every possible effort to agree ? Foreman: I think we have, your Honor. By the court: Is it the opinion of all of you that you cannot agree if kept together longer ?.....We so understand the jury to say, unless some one thinks they can agree by staying longer. Now, to wit," February 5, 1887, the jury in this case having come into court repeatedly, and affirmed that they could not agree, and that they had made every possible effort to agree, and that they still cannot agree, the term of the court now expiring, the court being satisfied it is useless to detain the jury longer, the jury are discharged from the further consideration of the case, to which order and discharge the defendants except, at whose request a bill is sealed. On May 5, 1887, the cause was again called for trial when the defendants’ counsel filed a special plea, in which were set forth at length the proceedings had after the arraignment and general plea, and, averring that the defendants then pleading were the same identical persons tried upon said indictment, prayed to be discharged from the same. To this plea the commonwealth demurred, and prayed judgment. After argument, the court, Hand, P. J., filed the following opinion, to wit: The important facts in this case are as follows : Defendants were indicted on the charge of murder, the second count for manslaughter. After the evidence was in, the district attorney announced that the commonwealth did not press for a conviction of murder in the first degree'. The court charged the jury that “ the evidence does not show such premeditation as would warrant a conviction of murder in the first degree.” Of course, under our pleadings, the count for murder could not be withdrawn from the jury, for they pass upon the degree under one count. After the jury had been out parts of five days and four nights, they were discharged from the case and the defendants held for a new trial. The jury had repeatedly come in and stated to the court that they could not agree and it was useless to keep them together. The court kept them together until the term was about to expire, and then on their reiteration that they could not agree, the case not involving, in the view of the court, a capital offence, the court being convinced that they could not agree, against the protest of defendants, discharged the jury. It is not necessary for us to go into a learned discussion of the question of law involved. The decisions of a large number of states of the Union, would justify the discharge of the jury, after it appeared to the court trying the case that it was useless to continue the term for the purpose of forcing an agreement. There is no doubt the court could continue the term, and would always do so for any sufficient reason. The only question now is, under our Pennsylvania decisions had the court power to discharge the jury? A review of our decisions in the light of Hilands v. Commonwealth, 111 Pa. 1, satisfies us that we had not. Whether in our judgment, the reason of the strict rule of law recognized in that case and cases there cited having in our enlightened age fallen, the law ought to fall, is of little moment. Whether as between the court and the prisoners at the bar there is an issue in this matter, that at the present day is a vital one, as has been the case in past history, which gave reason for the rule and for the clause in our constitution, we have ij,o ambition to discuss. As we read the decisions of this state reaffirmed in Hilands v. Commonwealth, the inability of the jury to agree is no cause for their discharge, no matter how long they have been kept together. No discretion is left with the trial judge. No humanity for the juiy, no plausible doubt in the testimony which part of the jury might discover, and part not able to discover; no question of forcing the conscience of the court, is allowed to enter into the case and permit the judge to discharge the jury without discharging the prisoner. At the trial of this case, with the decisions of other states before us, we were not prepared to take this 'position. At the present time we conclude that, as a matter of law in Pennsylvania,' we took an erroneous view of the law. If the unbending rule of Commonwealth v. Cook, 6 S. &R. 578; Commonwealth v. Clue, 3 R. 498, is to be modified in view of the language used in Hi-lands v. Commonwealth, we are of the opinion that it should come from the higher and not the lower court. In view of the responsibility resting upon us, it is better to declare the law as we find it, in a case in which the responsibility is one of discharging a prisoner, rather than in a case where- by holding the jury, we had possibly forced a verdict of conviction in the first degree by wearing out a portion of the jury. Upon a full, reargument of the plea and demurrer, we are of the opinion that the plea must be sustained and judgment entered for the defendants on the demurrer, and they should be discharged from further trial under this indictment. Exception is noted for the commonwealth and bill sealed.— Judgment having been entered in favor of the defendants on . the demurrer, the commonwealth then took tins writ, specifying that the court erred in sustaining the defendants’ special plea and in entering judgment for the defendants on the demurrer of the commonwealth.
121 Pa. 118Albright v. Van Nort (1888)
FROM the decree of the court of common pleas of LACKAWANNA COUNTY. No. 23 January Term 1888, Sup. Ct.; court below, No. 5 October Term .1887, C. P. in Equity. On June 28, 1887, Joseph J. Albright, a citizen residing in the Ninth ward of Scranton, filed a bill in equity against Charles F. Van Nort, collector of taxes in said ward, averring in substance: That the complainant had made no return to the assessor of said ward of property to be assessed to him for state purposes for the year 1886, and thereupon it became and was the duty of said assessor to make a return for the complainant, estimating the amount from the best information at his command, according to the provisions of § 9, act of June 30, 1885, P. L. 193, which act was made a part of the bill. That the county commissioners furnished to said assessor a certified list of mortgages standing unsatisfied upon the records of Lackawanna and Luzerne counties, wherein the complainant was mortgagee, and from which the assessor was to derive the best information of their existence. That upon said list, there appeared two mortgages, one by the Union Coal Co., for $259,919.41, dated September 18, 1867, and another by the Balt. Coal & Union R. Co., for $360,449.57, dated July 22, 1868, both to Joseph J. Albright, trustee, and given to secure certain bonds in which the complainant had no personal interest, and which said mortgages had in fact been paid many years before and had been satisfied of record; that the said assessor unjustly and illegally assessed the said two mortgages for taxation against the complainant, and thereupon the said commissioners upon such illegal return, assessed a tax of 3 mills for state purposes against the complainant on the full amount of said two mortgages, the levy amounting to $1,861.10. That the return of said assessment made by the assessor to the complainant was made in such a way that he was misled by it, and he had no knowledge that he. had been assessed with the amount of said two mortgages until after the day of appeal in his ward had passed; that, as soon as he was informed of the fact that such assessment had been made, he immediately applied to the commissioners to have said illegal assessment corrected and stricken off; yet the said commissioners, though having in their hands the evidence of the illegality of such assessment, refused to grant relief and placed said tax so illegally assessed in the hands of the defendant for collection, and that said defendant was about to seize and sell the personal property of the complainant to obtain payment of said tax. The prayers were for a preliminary injunction till final hearing, a permanent injunction thereafter, and for general relief. The preliminary injunction prayed for was awarded. From the affidavits read on the hearing of the motion to continue the preliminary injunction, on July 2, 1887, it appeared that said mortgages were of record as stated in the bill; that the bonds, to secure which the mortgages were given, had for many years before been fully paid, but through neglect the mortgages had remained unsatisfied «until after the said assessment ; that the assessor had handed to the complainant a slip notifying him of his assessment, but the figures thereon were so pointed off as to indicate an assessment of $642.08, instead of one of $642,088, about the amount of the mortgages; that not understanding the slip, he did not attend the commissioners’ court of appeals, and had no knowledge of the illegal assessment until the tax of 3 mills had been assessed, when he applied to the commissioners for relief which was refused. It also appeared from an affidavit made by one of the county commissioners, that the complainant had never made nor offered to make the return required by law of property taxable for state purposes for the year 1886; that after the notice of the assessment to the complainant, he had several times appeared before the county commissioners and applied to have the assessment stricken off, when he was requested to make the return provided for by the law, but this he had refused or declined to do. On August 31, 1887, the court, Abchbabd, J., filed the following opinion and decree: The plaintiff, who is a taxable of the Ninth ward of the city of Scranton, failed to make a return of his personal property as required by § 7, act June 30, 1885, P. L. 196, and the assessor thereupon made one for him, estimating his property as follows: Household furniture, $2,500; money due on mortgages, $642,088; money due on judgments, $9,579. Total, $654;127. It is undisputed that the amount as returned as due on mortgages, was obtained from the records of the county commissioners, and includes two trust mortgages, aggregating $620,000, in which the plaintiff had no personal property or interest, but merely stood as trustee for bondholders. At the time of the return, the bonds had been fully paid and the mortgages have since been satisfied of record. Does this showing to such extent invalidate the assessment ? The general rule in cases of this kind undoubtedly is that where the taxable has neglected or failed to make a return as required by the statute, if the assessor in the due exercise of his judgment makes an estimate of his property for him, this cannot be assailed by the taxable by showing that he has not the amount of property so returned. This would be merely a matter of excessive valuation, which the courts do not undertake to adjust: Hughes v. Kline, 30 Pa. 231. But the important part of this rule is, that there must have been a due exercise by the assessor of the discretion committed to him, and this suggests the limits to which the rule itself may alone be properly carried. Thus, if the assessor injudiciously discriminates against a taxable or makes a purposely oppressive assessment, this is such an abuse of his discretion as avoids the assessment: Cooley, Taxation, 157; Merrill v. Humphry, 24 Mich. 170; Lefferts v. Calumet, 21 Wis. 688; Milwaukee Iron Co. v. Hubbard, 29 Wis. 51. He does not in such case bring his judgment to bear upon the question submitted to him, but exerts it arbitrarily and capriciously, defeating the purpose of the laws. Similarly, it has been held that the assessment will be avoided if made in disregard of the actual and well known facts, as where the lands of one person are assessed to another who has no connection with their title or occupancy: Whiting v. Thomas, 23 N. Y. 281; Buffalo, etc., R. Co. v. Erie Co., 48 N. Y. 98; State v. Millston, 20 Wis. 228; People v. Castro, 39 Cal. 65. With regard to this it is said in People v. Castro, supra : “It was distinctly proved on the trial that the defendant was not the owner of about fifteen hundred acres of the land assessed to him, and that this land was in the actual occupation of other persons holding title under recorded deeds. This fact of itself established a legal fraud which vitiated the entire assessment. No citizen would be safe from illegal and onerous exaction, if assessors are to be permitted thus flagrantly to violate the laws by assessing large and valuable estates, not to the owners in the actual and visible possession under recorded titles, but to others, who claim no interest in the property, and are not in possession.” The present ease in my opinion, falls within the decisions last cited, and the exception to the rule which they sustain. The assessor here, has not only not estimated the amount of the plaintiff’s taxable property from the best information at his command, as directed to do by the statute, but he has actually disregarded his information and drawn into and made part of his estimate what the record of the commissioners’ office showed did not belong to the plaintiff but to others. This did not constitute a due exercise of the discretion with which he was invested. It was either a sheer abuse of his authority, or if made in mistake, was such a mistake as amounts to a legal fraud, and to such extent avoids the return. If this assessment is invalid, the plaintiff has a right to have it so declared, and the collection of the tax restrained regardless of the existence of the remedy by appeal. This is not simply an irregularity, nor matter of overvaluation, to be so corrected. It is an illegality which vitiates the whole proceedings: Harper’s Appeal, 109 Pa. 9. The mere circumstance that it might be corrected upon appeal to the county commissioners will not legalize it. Moreover, the right of appeal is not absolute. The plaintiff must excuse his default to the satisfaction of the commissioners. Suppose he should not be able to do this, 'must he still be subject to the return as made? The fact is, that the failure of the taxable to make a return, does not authorize the assessor to make» any return he pleases for him. The discretion of the assessor must be duly exercised. If it be shown that it has not been, the return is not legal, and the taxable is not thereby subjected to the provision of the statute. He stands without it, and until brought within its pale by a proper return, is not bound to pursue the remedies which it provides: Harper’s Appeal, supra. In reaching these conclusions, I am not unaware of the decisions in Osborne v. Danvers, 6 Pick. 98, and Lincoln v. Worcester, 8 Cush. 65, but I cannot accept them as ruling this case. The statute under which the former was decided provided that whenever any person shall be aggrieved by being overrated in the assessment of any tax, he may apply to the assessors to make a reasonable abatement, and if they refuse so to do, complaint was to be made in the nature of an appeal to the court. The tax in that case was resisted on the ground that the property for which the plaintiff was assessed was not liable to the tax. The court held that this was mere matter of overvaluation, and that the remedy provided by the statute must be pursued. The provisions of this statute, it is to be noted, are considerably different from those of that which we are considering, and the decision cannot therefore be safely taken as a guide. So far also as it denies the right to show in avoidance of a tax, that the property assessed is not liable, it runs counter to the decisions of our own courts. In either case I must decline to follow it as an authority ruling the case in hand. The decision in Lincoln v. Worcester is based upon that in Osborne v. Danvers, and does not add particularly to it. In conclusion, it may be remarked that the act of 1885 has not without difficulty been sustained by the Supreme Court: Fox’s Appeal, 112 Pa. 337. It is not therefore to be oppressively administered or construed. A construction, which fairly regards the right of the individual tax payer, and does not unduly interfere with the collection of the revenues of the state thereby provided for, has at once the sanction of common judgment, justice and equity. I think the plaintiff has presented a case which calls for the restraining power of the court, and the rule to continue the preliminary injunction is therefore made absolute. Thereupon the defendant took this appeal, and assigned as error: 1. The order granting the preliminary or special injunction. 2. The order continuing the injunction granted.
121 Pa. 130Green v. Rick (1888)
No. 278 January Term 1888, Sup. Ct.; court below, No. 63 February Term 1887, C. P. On February 4, 1887, a summons in debt was issued in an action wherein John S. Rick, for use of Richard Wenrich, executor of Magdalena Peiffer, deceased, was plaintiff, and Albert G. Green, Josbna Keely and Fannie A. Keely, his wife, were defendants.
121 Pa. 143West Br. Boom Co. v. Penn. Joint L. & L. Co. (1888)
EBJROB TO THE COUBT OE COMMON PLEAS OE LYCOMING COUNTY. No. 89 January Term 1887, Sup. Ct.; court below, No. 538 March Term 1885, C. P. On January 12,1885, a summons in case was issued by The Pennsylvania Joint Lumber .& Land Co. against The West Branch Boom Co., to recover damages for the detention of logs in the boom of the defendants and for the resulting deterioration in their value. The defendants pleaded, not guilty. The plaintiffs owned and operated a saw-mill at Williams-port, twenty two miles below the defendants’ boom at Lock Haven, and also owned and operated extensive timber lands at the head waters of the West Branch of the Susquehanna, upon which river the defendants’ boom was constructed. The defendant company was incorporated by the act of March 29, 1849, P. L. 245, followed by the supplementary act of May 8, 1854, P. L. 666. At the trial on October 4, 1886, the plaintiffs showed in substance that on January 30, 1883, and on the same date in 1884, they had given notices to the defendant company, as. provided by § 7 of the incorporating act, that they required them to pass through their boom logs with certain marks upon them which would be put into the river the springs following' the notices; that the logs were put into the river as notices had been given, and should have reached the boom of the Susquehanna Boom Co., at Williamsport, on the spring floods, but they were detained in the boom of the defendant company, causing loss by the delay and deterioration, which was reckoned in damages. The plaintiffs then rested. The defendants then made the following offers: Defendants’ counsel now propose to prove by this and other witnesses, that shortly after the West Branch Boom Company was incorporated, a company was regularly organized and proceeded to erect and construct in the West Branch of the Susquehanna river, at and above the city of Lock Haven a boom with cribs and piers, in the usual and ordinary manner in which booms arc constructed upon the West Branch of the Susquehanna river, for the purpose of catching logs; that that boom has been regularly maintained from the year 1850 to the presént time; that the length of the boom is about one mile, and its capacity is from twenty-five to thirty millions of feet of lumber in an ordinary flood. That in the year 1883 there were five saw mills in Lock Haven, the owners of which received logs from the West Branch Boom; that their logs were put in the river above the boom and were driven into the boom on the early spring flood of that year; that during the first flood in 1883 a very large amount of logs were put into the West Branch of the Susquehanna river and its tributaries, part destined for the West Branch Boom, to supply the saw mills of Lock Haven, but by far the larger part destined for the Susquehanna Boom at Williamsport, about twenty-two miles below the West Branch Boom; that these logs, destined both for Williamsport and Lock Haven, were thrown indiscriminately into the river at different points on the small streams and on the main river; that they were marked with several hundred different kinds of marks, some of which were letters, some figures, and some emblems of various kinds, all the marks being on the ends of the logs; that when these logs came into the West Branch Boom they completely covered the surface of the water, and filled up the West Branch Boom, partly with logs destined to Lock Haven and partly with logs destined to the Susquehanna Boom at Williamsport; that this flood was late in February or early in March, 1883, and the West Branch Boom Company proceeded at once and put on a large force of men for the purpose of rafting out the logs intended for the Susquehanna Boom at Williamsport; that they employed from sixty to eighty men, and worked always ten hours a day, and sometimes at night and sometimes on Sundays, for the purpose of delivering the logs at Williamsport, below the West Branch Boom; that all the logs were rafted out of said boom on March 31, 1883; that shortly after another flood came and the boom was again filled, and on April 21st, the West Branch Boom Company commenced with the same force, and with the same activity, to raft out those logs, and that they finished rafting and cleaned out the boom on May 19th; that subsequently another flood came and filled or partly filled the boom, and the boom company proceeded to raft out those logs in the same manner, and cleaned the boom entirely of logs on August 11, 1883. That subsequently, or immediately after the boom was emptied, another small flood came, and the boom company proceeded in the same manner, and cleaned out the boom on September 6,1883 ; that all the logs destined for the Susquehanna Boom at Williamsport were delivered into the river below the works of the West Branch Boom Company prior to September 8, 1883. That in the year 1884 another very large amount of logs were placed in the West Branch of the Susquehanna river, above the boom of the West Branch Boom Company, comprising an equal number of marks and as large a quantity of logs as the year before, and driven in the same way, and filling the boom as it had been filled in the year 1883; that the Boom Company defendant immediately commenced with the same force of men, working the same number of hours, to raft out the logs and deliver those destined to Lock Haven to the owners there, and those destined to Williamsport into the river below the boom; that thejr finished and cleaned out the boom on April 26, 1884; that another flood came early in June of that year, and the defendants commenced on June 7th, with the same force, and cleaned out the boom and delivered all the logs destined for the Susquehanna Boom, and finished delivering all the logs intended for the Susquehanna Boom on August 21, 1884. That this boom of the West Branch Boom Company is constructed of wooden piers filled with stone, connected by sticks of square timber extending up the river, and at its end a shear boom projects from the northern shore. That the river is narrow at the upper end of the boom and for some distance above it, and the logs run into the boom in large quantities, and it is an actual and physical impossibility to deliver the logs below the boom faster than they were delivered by the defendants in the years 1883 and 1884; that the defendants used every appliance and means, expended large sums of money, employed a great many men and did everything in their power that it was possible to do by human ingenuity and skill to deliver the logs of the plaintiffs below the boom, so that they could be driven into the Susquehanna Boom; that the marks of the logs are invariably upon the end, and it is impossible to ascertain to whom those logs belong until the mark can be seen, and that can only be done when the boom is opened and the logs passed out; that it is impossible to open the boom on a high stage of water, because all the logs, both those destined for Williamsport and those intended for Lock Haven, would go out together, and no human power could stop them; that the only delay in the years 1883 and 1884 arose in waiting for the water to subside so as to enable the men to work on the boom. This for the purpose of showing: (1) That under the charter of the West Branch Boom Company, it had a right to erect and maintain its boom in the West Branch of the Susquehanna river at Lock Haven, in the county of Clinton. (2) That it did not detain the logs of the plaintiffs in either of the two years, but delivered them below its boom as rapidly as it was possible to deliver them. (3) That the defendants, having a right to erect and maintain their boom, and the plaintiffs having delivered their logs into the river with the knowledge of the boom structure at Lock Haven, were bound to take all their logs as soon as they were delivered below the boom of the West Branch Boom Company and do as they pleased with them, and they cannot make the defendants liable for any delay occasioned by the action of the river. Plaintiffs’ counsel object: (1.) Because the defendant company" is required by law to stop no logs destined to Williamsport, and it is no excuse in this suit, that having stopped them the defendants used their best efforts to turn them loose. The act being in violation of law, the defendants are responsible in damages occasioned by the detention, without regard to the skill or diligence employed to sort the logs; nor is it any difference that the boom structure is erected as other boom structures are, it being only lawful for them to stop such logs as are destined for Lock Haven. (2.) Because as to the owners of logs designed to be driven below the boom at Lock Haven, as in the case at bar, the defendants are bound to see that the passage of the logs is not obstructed by the boom, and the company is not justified in stopping by their boom any lumber excepting rafts designed to be stopped there. (3.) Because there is no offer on the part of the defendants to show that the logs of the plaintiffs were not detained, as averred and proven in this case, the substance of the offer being merely to excuse an unlawful act. (4.) Because, as to all logs destined for points below Lock Haven, the erection of the West Branch boom structure in the West Branch of the Susquehanna river is an unauthorized and illegal obstruction, and as to all owners, excepting those desiring their logs to be stopped at Lock Haven, a public ■nuisance. (5.) Because the evidence is impertinent, irrelevant and immaterial to the issue trying. By the court: The objections, except the fourth, are sustained and the evidence excluded.1 Defendants’ counsel now offer to prove by this and other witnesses that in the years 1883 and 1884, there were cut and put in the West' Branch of the Susquehanna river, in each year more than two hundred millions feet of saw logs above the city qf Lock Haven and above the West Branch boom; that these logs were intended partly for Lock Haven and partly for Williamsport; that the owners of the saw mills at Lock Haven received their logs from the West Branch Boom Company, and those at Williamsport from the Susquehanna Boom Company; that these logs came in together upon the floods each year; that they filled up the boom of the West Branch Boom Company, and it was impossible to separate the logs and deliver those intended for Lock Haven and those intended for the mills below, any faster than they were delivered in the years 1883-4. That the said logs were not detained in the West Branch boom by any act of the boom company except by closing their boom, and the logs ran into the boom by the power of the water. This for the purpose of showing that the logs were not detained, but were all passed through the boom as fast as it was possible to pass them. Counsel for the plaintiffs object to the offer, and recite the first three objections to the last preceding offer, and object, (4.) because the offer itself admits a detention of these logs by the closing of the boom at Lock Haven. (5.) Because the evidence is impertinent, irrelevant and immaterial. By the court: The objections are sustained, and the evidence excluded.2 Defendants’ counsel now propose to prove by this and other witnesses that the franchises granted by the legislature to the West Branch Boom Company, by the act of incorporation, can be exercised in no other way and in no other manner than they have been exercised since the year 1850 and up to the present time, as proposed to be proved by the two offers already excluded. Counsel for the plaintiffs object for all the reasons stated to the last preceding offer, and recite them here. By the court: The objections are sustained, the evidence excluded.8 The case was then closed on the evidence, when the court, Cummin, P. J., charged the jury and answered the points presented as follows: The plaintiffs are the owners of extensive tracts of timber lands upon the head waters of the West Branch of the Susquehanna river. They own and operate a mill in this city. Their business is carried on by cutting this timber in the woods, putting their marks upon it and then casting it into the streams in the spring, and it comes down on the floods in the river. The plaintiffs allege that, while they did this in 1888-4, and put in very large quantities of logs each year, when these logs came to near Lock Haven, where the West Branch Boom Company have a structure in the river, they closed their boom and caught a large quantity of them, not only once but at different times during the year, and thus detained them on their passage down the river; and that the plaintiffs had given the notice required by law each year, as follows: [Court here reads notice] : that this continued to such an extent, that when it came to the fall of the year there still remained back a large quantity of their logs which- had been caught in this boom, and they were obliged to expend large sums of money in bringing them down; all their other logs on the same drive having come through except these that were detained; that they commenced to bring their logs down, but did not succeed in getting them in their harbors until Thanksgiving Day of each year, both dates being after the sawing season, and that they were therefore required to keep them over winter. They claim here that if the defendants had not detained these logs they would not have suffered damage. They say that in 1883 they were compelled to bring these logs down, and that to drive them down from Lock Haven it cost $1,112.70, which was one dollar per thousand on 1,112,706 feet. In 1884 they were required to bring down the same way 791,603 feet, but that year had to pay but forty-five cents per thousand, amounting to $356.22. They claim here that by reason of this delay these logs did not come into their actual possession until after the sawing season. By reason of that they lost a considerable quantity of this lumber; by being exposed to the weather that length of time the sap was lost in the measurement of the lumber. This is put by some of the witnesses at such a per cent; some at two dollars per thousand. I think one witness, said one and one half to two dollars a thousand. Others put it at so much per cent, amounting to about the same. The defence set up in this action is that these defendants had a right to stop these logs, and their duty was to turn them through the boom as rapidly as they could do it. They offered to show this, and to show that there was no negligence, [but, as you may remember what was said at the time the motion was made when the plaintiffs closed their case, this court is of the opinion that we are bound by the decision of the Supreme Court in the case of West Br. Boom Co. v. Dodge, 31 Pa. 285, and in this case our present step is taken relying solely upon that decision. It is of no importance what our views may be about this charter. The decision is binding upon the court and jury, and so we receive it, as we have no power to review the decisions of the Supreme Court. We accept that as the law and go by it. And so we are of opinion that the defence was not valid, because it was held in that case that they had no right to stop the logs at all, and that is the point on which the plaintiffs claim in this case. For, under their charter, they are bound to allow a free passage to all logs destined below their boom and to stop none except those destined and intended to be stopped at that place. That is the view we have taken. There is no other defence except the one which I have stated. It leaves nothing then but the amount for you to ascertain that these plaintiffs are entitled to recover].8..... Defendants’ counsel request the court'to charge the jury: 1. That the said defendants having been incorporated by an act of the general assembly of this commonwealth, approved March 29, 1849, and its supplements, and by said act having been authorized to erect a boom at Lock Haven, said charter should be so construed as to best effectuate the intention of the legislature, though such construction may seem contrary to the letter. Answer: Affirmed. I must presume that the Supreme Court had that in view when they ruled the former case.4 2. That by the terms of the said charter the said boom company was authorized to erect a boom at Lock Haven of cribs and piers and shear booms, and they did so erect said boom, and if the logs of the plaintiffs came into the boom so erected by legislative authority, they cannot recover by merely proving that they were detained in said boom, but they must show some negligence or omission or misuse of power by the boom company, and’having failed to show either in this case the plaintiffs cannot recover. Answer: That point is refused.3 3. That the charter of the company defendant provides, in § 3, that if any person or persons shall suffer damage by the exercise of the powers therein granted, the person aggrieved shall apply to the Court of Common Pleas of Clinton county, by petition, for the appointment of three disinterested freeholders to ascertain said damage; and, as this action is a common law action, it cannot be maintained, and the plaintiffs’ only remedy is under the charter of the boom company. Answer: That point is also refused.6 4. That under all the evidence in this case the verdict should be for the defendants. Answer: That point is also refused. As I have said, there is but one thing for you to do, and that is to ascertain the amount which your verdict should be for the plaintiffs.7 Take the figures I have given, and the injury to the logs, which if you compute at two dollars per thousand, would be 15,277.53, to which interest should be added. The verdict of the jury was in favor of the plaintiffs follé,950, upon which judgment was entered. The defendants then took this writ. The errors assigned were: 1-8. The refusal of defendants’ offers.1 to 3 4-7. The answers to defendants’ points.1 to 7 8. The part of the charge embraced in [ ] 8
121 Pa. 165Tiffany v. Commonwealth (1888)
ERROR TO THE COURT OF OYER AND TERMINER OF SUSQUEHANNA COUNTY. No. 379 January Term 1887, Sup. Ct.; court below, No. 1 August Term 1886, O. & T. On August 9, 1886, Judson E. Tiffany on arraignment pleaded not guilty to an indictment, returned a true bill, charging him with the murder of Samuel Hocum on July 15, 1886. The facts appearing on the trial, were in substance that Lafayette Crandall and Samuel Hocum, on the day of the homicide, were in a field belonging to the prisoner and were there engaged iu picking berries, when the prisoner ordered them out of the field. As they were on the way toward the public road, an altercation occurred with the prisoner who was following them, when the latter drew a revolver and shot Hocum. The accounts of the matter in the testimony upon both sides are clearly stated in the early part of the charge of the court below. In the prisoner’s behalf, J. K. Aldrich was called: Q. Are you acquainted with Lafayette Crandall? A. Yes, sir. Q'. Do you know what his general character and reputation is, as to being quarrelsome, — from the speech of the people ? Objected to. Mr. McCollum: We offer to prove by this witness and twenty-five others that Lafayette Crandall has a notoriously bad reputation as a quarrelsome, bad-tempered, dangerous man, and that all this was known to Judson Tiffany on July 15, 1886, at the time of the shooting. Objected to, that it is irrelevant and immaterial. By the court: Objection sustained, and offer refused.6 At the close of the case on the evidence, the court, McCollum, P. J., charged the jury and answered certain points presented as follows : On the 15th day of July last, Samuel Hocum was slain by the prisoner at the bar. The evidence establishes this, and it is admitted by the prisoner. There are two versions of the circumstances accompanying and surrounding this homicide. The case as presented by the commonwealth, in the evidence of Lafayette Crandall, is briefly and substantially this: On July 15, last, Crandall and Hocum were living together in a house not far from Stephen Tiffany’s. Crandall had married Hocum’s daughter. Not far from one o’clock in the afternoon, they went to Stephen Tiffany’s, where they remained until near three o’clock, when each took a small pail, and together they went into the field of Judson Tiffany, to pick berries. When they got to the upper side of the field, near the brush, they saw Judson Tiffany, who ordered them out of the lot, when they came within a few feet of him. Hocum was nearer to the prisoner than Crandall was. Crandall heard no talk between Hocum and the prisoner until they were ordered out of the lot by him. Crandall and Hocum started to leave the lot, Crandall saying to Hocum, “ this is no place for us, let us get out.” And as they started to go out of the lot, Crandall was ahead, Hocum following him, and the prisoner following Hocum. Crandall got nearly to the road, and some 80 or 40 feet below where Tiffany and Hocum were, when he heard Tiffany say, “ Hurry up, get there damn you, or I will hurry you with a bullet; ” and Hocum then turned around and replied, “You have got to give me a reasonable time to get out, and if you want to shoot, why shoot; ” and Tiffany got up close enough and slapped him once or twice in the face, with his fist or his flat hand, and he threw his hand up to ward the blow off. Then Crandall started back towards them, and when he came within six or ten feet of Tiffany, he hauled out a revolver and shot, and Hocum fell. And Crandall then seized Tiffany by the right wrist and by the neck and brought him to the ground. Tiffany said to him, “ Let me up, I Avont shoot you,” and Crandall said to him, “ Give up your revolver,” and Tiffany replied, “I will never do it.” Crandall then choked him until he gave it up, and then got off from him and went to Hocum, and turned him over to see how badly he was hurt, and he only gasped tAvice, and Tiffany was then running toAvards the orchard, by a downward course, towards the road. This is substantially the evidence of Lafayette Crandall, in chief, as to the circumstances attending and illustrating this homicide. It is the evidence of the only witness on the part of the commonwealth, Avho was present or very near the place or scene of the homicide. In the cross-examination of Crandall, there may be some modifications of this statement, but not in any very material matters. I have selected this witness, Crandall, and his evidence, as affording the most complete exposition of the case as claimed by the ■commonwealth. The version of the defence, as presented in the evidence of the prisoner, is briefly and substantially this: Tiffany, on the afternoon of the fatal occurrence, went to his own lot to pick berries, and while there, engaged in picking berries, Crandall and Hocum came where he was and said to him “ How do you do.” He replied to them, pleasantly, “ How do you do,” and noticed that they had been drinking. Hocum said to him, “ Why don’t you let Steve alone ? Why do you meddle with his distillery ? ” To this the prisoner replied “ That is my business ” and Hocum said “We will make it ours, and if you don’t stop informing against him we will fix you in a way that you will wish you never had.” That Tiffany said in reply “ Gentlemen, get off from my premises, I willnotbe abused on my land. You shall not pick berries here.” And Crandall said “ Lick him, Sam, you can do it without my help, and I will go and sit down and see the fun.” And Crandall then started away, slowly, and Hocum called the prisoner names,' and used hard language ; that the prisoner told the deceased to get off, and that the deceased put his hand in the prisoner’s face, and then the prisoner told him that he didn’t want any quarrel, that he had never struck a man in his life ;• that the deceased then struck the prisoner on the stomach and on the right cheek; that the prisoner requested to be let alone; that he told the deceased that if he wanted to quarrel he could have his drunken quarrels with his son-in-law, as he did the other night, when he got his face marked; that the deceased picked up a stone and struck the prisoner on the left side, stunning him; that the deceased then, with a stone in his hand, sai,d “I will smash your brains out, you son of a bitch,” and at that moment the prisoner saw Crandall running towards him, with his fist doubled up; that the prisoner was frightened and called “ Help; ” that Hocum said, “ I will help you with a bullet,” and Crandall said, “Shoot him, Sam, shoot him;” that Hocum, with a stone in one hand, put his other hand towards his hip pocket and stepped towards the prisoner; that the prisoner, having heard that Crandall and the deceased were desperate characters and quarreled among themselves and 'threatened to shoot each other, and threatened to kill each other, suddenly thought of his revolver that he had in his pocket, and jerked it out, and was so excited and scared that he could hardly realize when the revolver went off and killed Hocum; that just then Crandall caught hold of him, and jerked him down, and placed one hand upon the prisoner’s throat, and the other on the revolver; that then the prisoner heard a voice saying, “ Keep the revolver, Lafe,” and that Crandall then let the prisoner go, and he got away, and that he can hardly tell how he got home. Now, in the evidence of these two witnesses the leading features of the case as claimed by the commonwealth, and the case as claimed by the prisoner, are presented. I shall not stop at this time to refer to the other evidence in the cause bearing upon these respective statements, corroborating either. I have deemed it proper to call your attention to these distinguishing salient features of the case, as claimed by each side, preliminary to the instructions which I will now give you as to the law of the case; and after that I shall take occasion to call your attention to some other evidence in the cause as it bears upon this issue. Under the indictment upon which this issue is joined, tbe prisoner at the bar may be acquitted of all crime ; he may be convicted of voluntary manslaughter, he may be convicted of murder in the second degree, or he may be convicted of murder in the first degree. So that it becomes necessary for the court to instruct you fully as to the law respecting the degrees of murder, as to the law of voluntary manslaughter, and as to the law of self defence; and this we will now proceed to do..... Insulting or scandalous words are not sufficient cause of provocation, nor are actual indignities to the person, of a light and trivial kind. Whenever the act evidences a deadly revenge, and not the mere heat of blood; whenever it is the result of a devilish disposition, and not merely the frenzy of rage, it is not manslaughter, but murder. To excuse homicide by the plea of self defence, it must appear that the slayer had no other possible, or at least probable, means of escaping, and that his act was one of necessity. The act of the slayer must be such as is necessary to protect a person from death or great bodily harm, and must not be entirely disproportionate to' the assault made upon him. If the slayer use a deadly weapon, and under such circumstances as the slayer must be aware that death will be likely to ensue, the necessity must be great, and must arise from imminent peril of life or great bodily injury. If there be nothing in the circumstances indicating to the slayer, at the time of his act, that his assailant is about to take his life, or to do him great bodily harm, but his object appears to be only to commit an ordinary assault and battery, it will not excuse a man of equal, or nearly equal strength in taking his assailant’s life with a deadly weapon. In such cases it requires a great disparity of size and strength on the part of the slayer, and a very violent assault on the part of his assailant to excuse him. The disparity, on the one hand, and the violence on the other, must be such as convinces the jury that great bodily harm, if not death, would follow, unless the slayer had thus defended himself, or that the slayer had reasonable ground to think it would be so. The burden lies upon the prisoner in such a case, of proving that there was an actual necessityfor taking life, or a seeming one, so reasonably apparent and convincing to him as to lead him to believe he could only defend himself in that way. This principle and right of self defense applies although it should afterwards appear that the apprehended imminent danger was not actual. When one who is without fault is attacked by another in such a manner, or under such circumstances, as to furnish reasonable ground for apprehending a design to take away his life oído him great bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, he may safely act upon appearances and kill his assailant, if that be necessary to avoid the apprehended danger, and the killing will be excusable, although it may afterwards turn out that the appearances were false and that there was in fact neither a design to do him serious injury, nor danger that it would be done. It is the reasonable apprehension of imminent danger to life, or of great bodily harm, based upon the appearances existing at the time, that the law regards as sufficient, when acted upon, to excuse a homicide..... It is a general rule that all homicide is presumed to be malicious, that is, murder of some degree, until the contrary appears in the evidence. Therefore, the burden of reducing the crime of murder to manslaughter, where it is proved that the prisoner committed the deed, lies on him. He must show all the circumstances of alleviation or excuse, upon which he relies to reduce his offence from murder to a milder .form of homicide, unless the facts already in evidence show it. But though the homicide without circumstances of alleviation or excuse is presumed to be murder, it is not presumed to be murder of the first degree. The presumption against him rises no higher than murder in the second degree, until it is shown by the commonwealth to be murder in the first degree. It therefore lies on the commonwealth to satisfy the jury of those facts and circumstances which indicate a deliberate intention to kill, and the cool depravity of heart and conscious purpose which constitute, as before stated, the crime of murder in the first degree.....In deciding upon the case or any material part of it, it is the duty of the jury to give the prisoner the benefit of any reasonable' doubt arising out of the evidence, which prevents them from coming to a satisfactory conclusion.. But this doubt must fairly arise out of the evidence, and not be merely fancied, or conjured up. The jury must not raise a mere fanciful doubt, to escape the consequences of an unpleasant verdict. It must be an honest doubt, such a difficulty as to fairly strike a conscientious mind and cloud the judgment. [If there be a reasonable doubt that any offence has been committed by the prisoner, it operates to acquit. But if the evidence clearly establishes the killing by the prisoner, purposely, with a deadly weapon, an illegal homicide of some kind is established, and the burden then lies upon the prisoner to show that it w'as excusable, or an act of self defence.] 4 In connection with these general instructions 1 will read to you the points submitted in behalf of the prisoner, and answer them. The counsel for the prisoner have asked us to charge you: vfi -fj & * 4. To convict of, murder in the second degree, the jury must be satisfied beyond all reasonable doubt of the absence of a sudden quarrel, from sufficient provocation, and done in the heat of passion, and of the presence of malice aforethought. Answer: This point is refused.1 12. That in order to convict of murder in the second degree the jury must be satisfied beyond a reasonable doubt that the killing was with malice aforethought, to wit, either express or implied, which is defined to be from a wicked and depraved heart, regardless of all social law, and not from a sudden quarrel, from sufficient provocation; and this is not to be implied in this case, where the facts and circumstances are in evidence, and the prisoner bears marks of violence upon his body, but it is to be proven that such malice aforethought actually existed, beyond all reasonable doubt, before they can even convict of murder in the second degree. Answer: This point is refused.8 16. That the jury must take into consideration the place where the difficulty occurred, that it was on the prisoner’s land, and he had the superior right; that he had a right to order the deceased off, and if he resisted, or hesitated, or struck the prisoner, he had a right to oppose it by force, and to follow him up until an attack was made upon him so fierce as to put him on self defence, and then if the attack which endangered seriously his life, or great bodily harm, or reasonably appeared so, was so sudden and fierce that by attempting to retreat he might lose his advantage of self defence, or place him in more danger, or that it reasonably appeared so from the facts, he had a right to stand on his defence at once, and shoot his assailant, and could not be convicted of any offence, but must be acquitted. Answer: It is true that the prisoner was upon his own land. It is true, so far as this evidence discloses the situation, that he had the superior right there. But I am not prepared to say that he would be acquitted of all crime upon the facts or state of .things or conduct described in this point.6 * * $ & ifc # ifc [You observed, gentlemen, -that I refused to affirm two of the prisoner’s points, with reference to the crime of murder in the second degree. I refuse to say, as requested iii those points, that if the circumstances in evidence, put there either by the commonwealth or the prisoner, raised a reasonable doubt of that crime, that those facts and circumstances would operate to acquit of it. And perhaps, that you may clearly understand the position taken, we should explain again here, how the law is upon this subject. As we have already said to you in the general instructions, where a homicide is committed, and an unlawful killing is shown, it is presumed by law to be murder. But under our statute that presumption rises no higher than murder in the second degree. To convict of murder in the first degree the burden is upon the commonwealth, all the time, to show beyond a reasonable doubt that that crime was committed. Not so the second degree, in the case and under the circumstances stated. The law presumes, upon those facts, that offence, and then the burden is upon the prisoner to -reduce the crime from murder in the second degree to a milder form of homicide — to voluntary manslaughter, unless those facts and circumstances appear in the evidence of the commonwealth. If the facts and circumstances are in evidence, no matter by whom produced, which make the extenuation that reduces it, they have the effect to reduce it; but those facts and circumstances must be more than sufficient to raise a reasonable doubt.]3..... The jury returned a verdict that the defendant was guilty of murder in the second degree. On March 7, 1887, a rule to show cause why a new trial should not be granted was discharged, and on the same day the defendant was sentenced to undergo an imprisonment by separate or solitary confinement in the penitentiary for the Eastern District of Pennsylvania for the term of eight years from the date of sentence; thereupon he took this writ. On April 1,1887, this court, on application made, directed that the defendant be admitted to bail in the sum of $8,000, whereupon he was released from custody. The errors assigned on the argument of the writ of error were, inter alia: 1. The answer to defendant’s 4th point.1 2. The answer to defendant’s 12th point.3 8. The part of the charge embraced in [ ] 3 4. The part of the charge embraced in [ ] 4 5. The answer to defendant’s 16th point.5 6. The refusal of defendant’s offer.6
121 Pa. 182Jackson v. Lambert (1888)
ERROR TO THE COURT OF COMMON PLEAS OF SULLIVAN COUNTY. No. 73 January Term 1888, Sup. Ct.; court below, No. 32 September Term 1884, C. P. On June 28,1884, B. W. Jackson and George C. Jackson, executors of the will of George D. Jackson, deceased, and B. W. Jackson, brought ejectment against William Lambert, to recover possession of a tract of 80 acres and 52 perches in Forks township. The plea was, not guilty. At the trial on September 28, 1886, the plaintiffs put in evidence a warrant in the name of Nathan Fields, Jr., dated March 11, 1785, returned as surveyed on April 8, 1785, for 401 acres and 142 perches. This was followed by evidence of an assessment of taxes upon a portion of this land, as unseated land, and of treasurer’s deeds, dated September 1, 1858, and August 5, 1876, respectively, and other mesne conveyances vesting the title to tbe land in dispute, as was claimed, in the plaintiffs. The defendant claimed title under a warrant and survey, followed by patent issued on March 30, 1860, to T. P. Wilkinson, the title passing eventually to tbe defendant. This survey lay on the south of the Nathan Fields, Jr., survey. The diagram above, taken- from the official connected draft in evidence, will illustrate the question in controversy. The facts from which it arose, sufficiently appear in the charge of the court below. In the plaintiffs’ case in chief, C. D. Eldred called. The witness was a practical surveyor, and had testified to surveys made by him in the examination of. the lines in dispute: Q. You have stated that the line running from the beech at the corner of Wm. Atmore, across to the beech at the corner of the Henry White, is a line of 1784? Yes, sir. Are you able to state positively whether that line was run in 1784 or 1785? Only from this fact: a line of 1784 run in the Fall, and one in 1785, before the growth of that year, would count the same date precisely; but from the actual work of surveyors done and returns made by them, it is shown that this line continued, and there was a block of surveys of 1784 located on it further west, and therefore there was such a hue run in 1784. Counsel for defendant object to the answer, it being what the court has already excluded, and ask that it be stricken out. By the court: When a surveyor testifies that he has counted the rings upon the block, and that it counted to 1785, we understand that he means by that that the mark upon that tree in 1785 would count, as he has counted it, a mark put upon it in the spring. Now, if there is any misunderstanding and difference of opinion upon that subject, you can examine surveyors upon it. Here is a fine, and the surveyors say it counts to 1784. What do they mean by that? Do they make an allowance for the one year — that is, do they count 1783 rings, and then allow one for the year in which it was counted, or do they count the full number of eighty-four years ? Let the surveyor explain that, and then the jury will be able to understand all that the marks show, and all that can be legitimately inferred from the marks. We sustain the objection and strike out the answer.8 The same witness, continued: Counsel for plaintiffs propose to show that the line extended westward from the Atmore beech and counted back to 1784, is a continuous line for many miles west and north, to be followed by proof tliat the warrants are located upon this line with surveys returned into the land office bearing date of September, 1784. This for the purpose of fixing the date of the line from the Atmore beech to the White corner. Counsel for defendant, renewing former, add the further objection: That two of the tracts, the Thomas Poultney and the David Lownes, themselves show a return of survey of October, 1784. By the court: The objection is sustained.3 The same witness had been examined as to the John Poultney survey and others, located north of the Nathan Fields, Jr.: Q. If the block of surveys, of which the Hugh Roberts, as far east as Black Creek, the John Kaighn, the William Atmore, the David Lownes, the Caleb Lownes, the Nathan Fields, Jr., and other tracts as far north as the John Poultney, are part, are not located by the lines of 1777, can they be located by any other lines found of the dates of the surveys or older ? Counsel for defendant object: He is now asking the opinion of the surveyor as to the location of a number of tracts of land which are not in question, have not been questioned so far, and will not be questioned in this case. By the court: We sustain the objection to that question.4 The same witness: Will you state as a surveyor whether you consider the John Poultney to be a well located warrant upon the ground? Yes, sir. Counsel for defendant object, that the question is leading the witness to express an opinion as to the location of one of the surveys, which is claimed is in the block of surveys with which the land in dispute is connected, is a legal conclusion and not a matter of fact. By the court: The question for the determination of the jury in this case is where the Nathan Fields, Jr., tract is located; and, in order to ascertain the location of that tract, it may be necessary to ascertain the location of other tracts, and that is for the jury from the evidence in the case. A surveyor is put upon the stand, and he is asked to give his opinion as to the true location of the tract. That is the question for the jury to determine from the evidence in the case. And by putting the question and getting an answer from an expert you get the expert in the place of the jury. Now the question is a question purely for the jury, and you can bring before the jury all that the expert has seen and found upon the ground; every fact that will assist the jury in determining the question, we can draw from the expert, but we cannot draw from the expert the determination of the question itself. We sustain the objection. This question is whether the tract is well located upon the ground; that is rather a different question from the one we have done arguing, but we think it probably falls within the same reason, and we sustain the objection.5 At the close of the evidence, the court, Sittser, P. J., so far as material to the cause as decided, charged the jury and answered the points presented as follows: The main dispute between the parties to this case, is as to the true location of the Nathan Fields, Jr., warrant and survey. Two surveys have been given in evidence, and one of them shows a beech at the southeast corner and none at the southwest corner. The other, which is the older copy, shows a beech not only at the southeast corner, but also at the southwest corner. This, I believe is the only difference between the two copies which have been given in evidence. A surveyor, with this warrant in his hands, going upon the ground for the purpose of locating it, would of course, examine it to see what its calls were; examine it to see what marks upon the ground were called for, or what the adjoiners were. ■ And you, endeavoring to determine what was the true location of this warrant, will also examine it, see what it calls for by way of marks upon the ground, such as trees or lines, by waters put upon it, by its calls for adjoiners, and then apply it to the facts in this case, as testified to by the surveyors and by the witnesses that have been called, and make up your minds as to its true location. Upon the northern line, at the northeast corner, a post is called for: at the northwest corner a post is called for. This is not an indication that the north line of the tract was run npon the ground; it is rather an indication that it was not run. Upon the south line a beech is called for at one corner, and a beech at the other corner. This is an indication that the line was actually run upon the ground by the surveyor. And the question would arise, whether any marks have been found to indicate such a line as called for by the survey. Has the beech at the southwest corner been found, such as described in the return ? Now there are certain rules of law which apply to the location of surveys. The first is, that the survey is to be located by marks upon the ground; next, by calls for adjoiners; and next and ,lastly, by courses and distances. If you can find upon the ground marks of lines, or corners, corresponding with the date of the survey, which the evidence satisfies you were intended by the surveyor who located the warrant, made by the surveyor who located the warrant, for the lines of the tract, that settles the location of that tract. If the lines marked upon the ground conflict with the calls for ad-joiners, you must be governed by the marks upon the ground; if the marks found upon the ground conflict with the calls for adjoiners and with the courses and distances, you must still be governed by the marks upon the ground. So the important question for you in this case, is, have they discovered any marks upon the ground, of lines upon the Nathan Fields, Jr., warrant, corresponding with the date of the survey, which you are satisfied from the evidence in the case, were made by the surveyor at the time he located that warrant, and intended for the lines of. it? The fact that the north line calls for a post at its corners, would indicate, as 1 have said to you, that that line was not run. Therefore, when you look for a line, you will look for a line to answer the call marked upon the ground, on the south side of the warrant. If you fail to find any lines marked upon the ground, and the evidence fails to satisfy you that these lines were intended for the east line of the survey, then you will have to look to the calls for adjoiners to settle the location of this tract. It calls for the Thomas Poultney on the west and for David Lownes upon the east. You will then take up the Thomas Poultney or the David Lownes, and you will proceed to settle their location, and you will settle their location by precisely the same rules that I have laid down for the Nathan Fields, Jr.; you will examine all the evidence connected with these tracts; calls for adjoiners, courses and distances; marks upon the ground, and if you can find marks, which you are satisfied from the evidence in the case, were intended as a line of the Thomas Poultney, then you will locate the tract by the marks upon the ground, being governed by them, although the marks upon the ground may compel you to disregard the calls for ad-joiners of the Thomas Poultney, and the courses and distances. And so with the David Lownes. When you come to the David Lownes you will find that the survey of that tract calls, at its southwest corner, for a beech, at its southeast corner for a post by a beech; and then run the easterly line on a course of north 80 east, you will find at about the middle of the tract it calls for a beech. On the east side of the David Lownes tract, until you get to this beech, it is marked as vacant land. Upon the other side, going further to the north, the William Atmore is marked. If that beech has been found in the center of the tract, it would be a mark of importance to determine its lotíation. As I understand the evidence in this case, that beech has not been found; and you have its calls for adjoiuers, and the calls for adjoiners, as I have already explained to you, are to be used, if they do not conflict with marks found upon the ground which you are satisfied were made by the surveyor in locating the warrant. There are two drafts when we come to the William Atmore, which is called for, and to which you can look to assist you in the location, in the event of your not finding satisfactory marks upon the ground. You will find that the draft calls for the David Lownes upon its west, and that as marked upon that draft the William Atmore extends along the whole eastern boundary of the David Lownes; that is a discrepancy which we cannot undertake to reconcile. The Thomas Poultney lies immediately upon the west of the Nathan Fields. That survey calls for the Hunt .Downing upon the north. The Hunt Downing calls for another tract, and that for another, and the names of tiróse tracts will appear upon maps sent out with .you, and so from one tract to another until they reach the John Poultney. The John Poultney is described by courses and distances. The warrant of survey calls for marks upon the ground and shows certain streams of water upon it; you remember the evidence that has been given as to the waters which have been found, and as to the correctness with which the waters have been laid down upon it. Now as to streams of water, tlie rule of interpretation seems to be this: that if the surveyor actually went upon the ground and ran the lines, we would expect the streams to be laid down with a reasonable degree of accuracy where the streams cross tlie lines. If the surveyor did not go upon the ground to run the lines, then but little weight can be given to the location of streams' as put down upon the survey. Counsel upon the part of the plaintiffs and the defendant have furnished us with certain points, and the answers to these points, we believe, will be all the instruction that it will be necessary to give, you to enable you to determine this case. On the part of the defendant we are asked to say to you: % -*■ ♦ •$£ 23. That the warrant to Thomas Poultney calls for land bounded to the “ northeastward by land this day granted to Hunt Downing, to the westward by a line of marked trees which runs south thirty degrees west and to extend southwestward along the same.” If it appears that the line of marked trees mentioned in the warrant did not extend southwestward of the old beech near Lick creek on the line of 1784, it affords an inference that the surveyor did not" locate the warrant southwestward of that line. If that inference is supported by all the evidence in the case, the jury should find that the Thomas Poultney survey did not extend southwestward of the old beech near Lick creek, and their verdict should be for the defendant. Answer: This is affirmed.15 ********* The jury returned a verdict for the defendant. On September 19, 1887, a rule for a new trial was discharged; the same day, the death of the defendant was suggested, and John W. Lambert and George Lambert, his heirs at law, substituted. Judgment having been entered upon the verdict, the plaintiffs took this writ, assigning as error, inter alia: 2. The striking out the testimony of Eldred.3 3-5. The refusal of defendant’s offers.3 t0 5 15. The answer to defendant’s 23d point.15
121 Pa. 192Appeal of Hacker (1888)
from THE DECREE OE THE ORPHANS’ COURT OE PHILADELPHIA COUNTY. No. 318 January Term 1888, Sup* Ct.; court below, No. 524 October Term 1877, O. C. Oil December 31,1887, the account ol Edward Wain, trustee under the will of Jacob S. Wain, deceased, was filed. By the will of Jacob S. Wain, his estate was vested in trustees for the use of his wife for life, and at her death, the estate was to'be divided among the children, except S. Morris Wain, living at their mother’s death, and the children of any deceased child per stirpes; the trustees were directed “then to convey by absolute deed or other requisite assurance, the share allotted to my sons Henry and Edward, to each, or his issue, their respective shares in fee simple, but to retain in trust che share of each of my daughters whether covert or single, and to pay to each of them the net income and profits thereof for their support and maintenance, free from the debts, control or liability of any present or future husband, in such sums as the same may be received; and if any of my daughters die leaving lawful issue to give the share of such deceased mother to her children after the death of her husband who-shall have his life estate as tenant by the curtesy therein, and to convey the share of any unmarried daughter, or of a daughter dying married and without children, as she may by writing-under her hand and seal, in nature of a last will and testament,, executed in the presence of two witnesses, designate and appoint, and, in default of such appointment, to their or her brothers and sisters living, or if dead leaving issue, then to the said issue share and share alike. The widow afterwards died, and on May 28, 1887, Ellen Wain, one of the unmarried daughters, died, leaving a will dated August 25, 1886, which was in her own handwriting and, omitting irrelevant dispositions, read as follows: 19. After all the above named or mentioned legacies shall be paid, I leave the whole of the residue of my property, all from the undivided-estates of my father, Jacob S. Wain, & all from the estate of my brother, S. Morris Wain, divided or undivided, real or personal to the following named persons, to be equally portioned among them, share & share alike, to be held in trust for them — These are the names of my residuary legatees, viz — Sally M. Wain, my niece — Meeta Yaux, my niece — Elizabeth Wain' Yaux my niece — -Sally Yaux Connelly my niece J. Wain Yaux, my nephew— 20. I appoint William Hacker, my Executor— ********* 22 — I have refrained mentioning names of trustees, preferring my residuary legatees should choose for themselves conjointly or separately, as they shall elect— ********* In Witness, thereof I have Witnesses. hereunto set my hand and seal, William E. Moeeis Ellen Waln— B. Wistae Moeeis Novem. 25th 1886. At the adjudication of said account, on January 11, 1888, it was shown that by deed poll, duly executed and acknowledged, and following the testamentary directions of the testatrix, the lifetenants and the residuary legatees constituted William Hacker to be their trustee, to act in and under the trusts declared by the will. The auditing judge, Ashman, J., against the contention of R. W. Clay, the executor of Edward Wain, deceased, the accountant, and discussing Pepper’s Will, 1 Pars. 436; Porter v. Turner, 3 S. & R. 108; Hellerman’s App., 115 Pa. .120; Sidney v. Shelley, 19 Ves. 352, ruled that the power in the will of Jacob S. Wain had been well executed by the will of Ellen Wain, and made a distribution accordingly, awarding the principal of the fund to William Hacker, trustee as aforesaid. To this .adjudication, R. W. Clay, executor of Edward Wain, deceased, accountant, excepted. On February 4, 1888, after argument, the court in banc sustained the exception, Penrose, J., filing the opinion and decree: We have earnestly desired to sustain the appointment in this case, but the^. principles with regard to the execution of powers are so well settled, and the authorities so uniform, that, to our great regret, we find ourselves unable to do so. The power of the tenant for life is derived solely from the will of the testator, her father; and the estate which it gives in default of appointment is vested, subject to being divested by nothing short of an appointment hi strict compliance with the directions of the donor of the power as to the manner of exercise. These directions may have been purely formal and suggested simply by caprice, but they are no less essential on that account. He was dealing with his own estate, and had the right to say precisely with what ceremonies it should be disposed of. If, as the cases show, the instrument is required to be signed in the presence of witnesses, the acknowledgment by the donee of the power, to the witnesses, of a signature not actually written in their presence, is insufficient: Sugden on Powers, 237. “ Whatever arbitrary terms the grantor of the power may impose upon the party executing it, or however absurd and unreasonable they may seem to be, they must be fulfilled; as if it were required that the instrument executing the power be witnessed by persons of a particular stature, or written on paper of a particular color: ” Farwell on Powers, 108; Rutland v. Wythe, 10 Cl. & F. 425 ; Hawkins v. Kemp, 3 East 410. Here the donor has required the donee, in the execution of the power, not only to sign but also to seal the instrument by which it is done, and the seal, therefore, is thus made as essential as the signature: Chance on Powers, § 908. Ordinarily, the seal is affixed on a line with and immediately after the signature; but the position is immaterial, if it be clear that there is a seal (and several persons may use the same seal), and that it was affixed as such, for the purpose and with the intention of sealing the instrument: Chance on Powers, § 910, where the ruling of Lord Kenyon in Sprange v. Barnard, 2 Bro. C. C. 585, is said to have been “ generally disapproved.” What constitutes a seal in Pennsylvania is well settled. In Duncan v. Duncan, 1 W. 322, Judge Kennedy delivering the opinion of the court, said: “ An impression upon wax, or something of the kind, or the wax itself, was the only kind of seal known to the common law of that country whence we have derived our common law. In addition to this, we have, by immemorial use and custom, adopted as a seal a scroll made with ink. It is in such general use that there are but few, I think, who are not intimately acquainted with its character and appearance, and it is therefore well suited to become part of our law on the subject. ... In using even a scroll for a seal, it would seem to be proper, or at least prudent, not to depart from the common form which is generally used in making it, so that no possible doubt may be raised of its having been intended for a seal; for, according to the principle laid down in Taylor v. Glaser, 2 S. & R. 502, unless a seal, such as is known to, and recognized by the law, be affixed to the name of the party, it will not be considered a deed, although some other device may be substituted for a seal, and the words ‘in witness whereof I have hereunto set my hand and affixed my seal ’ may be used in the attestation.” It was also decided in that case, that whether an instrument of writing be under seal or not, is a question of law to be solved by the court from inspection of the instrument. “It is,” said the judge, “highly important to the interests of society, that every man should be able to determine with certainty upon looking at an instrument, whether, if genuine, it is a deed or not; that is, whether it has what the law denominates a seal affixed to it or not; but it must be obvious that unless the true character of a seal is fixed by the law, which is uniform and certain, and may be known by every one, it will oftentimes be impossible to determine whether an instru ment of writing is a deed or not. If parties are permitted to substitute any mark or device, which their imagination may suggest for a seal, and it is to be made a question of fact to be decided by a jury whether it was so intended or not, it will not only introduce great confusion and uncertainty, but a principle which cannot be carried into effect without repealing some of the provisions of our statutes providing for the recording of deeds.” A seal is quite as essential to the execution of a power calling for it, as it is under the recording acts. In the present case, the donee of the power, as an inspection of the instrument shows, has used neither wax, wafer, nor scroll; and, unless the mark of punctuation known as a dash — a narrow line, perhaps a sixteenth of an inch in length, following her signature in the place usually occupied by a period is to be regarded as a seal, she has failed to comply with the requirements of the power in' this respect, and the. estate passes to, or, more properly speaking, continues in the persons entitled under the original.will, in default of appointment, just as if there had been no attempt to execute it. Conceding, notwithstanding what is said in Duncan v. Dun can, as to the mischief which would arise if it were permitted to substitute for a seal “ any mark or device which the im agination may suggest,” that a dash may take the place of the ordinary scroll, it must at least appear tnat it was used with that intention and for that purpose ; and here this is opposed by the fact, as the instrument itself shows, that the donee frequently, if not habitually, employs this character in place of a period, which the authorities on punctuation say should always follow the signature to a document, and not as a seal at all. Nor is the case aided by the concluding sentence of the will, “ In witness whereof I have hereunto set my hand and seal; ” for, as was decided in Taylor v. Glaser, 2 S. & R. 502, cited in Duncan v. Duncan, if in point of fact the seal has not been affixed, the assertion goes for nothing. In that case, a flourish under the signature was held, in spite of such assertion, not to be a seal, though, as is well settled, the position of the seal is quite immaterial: Liggett v. Long, 19 Pa. 499. It is not likely the decision would have been different, if, the body of the instrument showing the maker’s frequent use of a — - for a period, the signature had been followed by the same method of punctuation. Duncan v. Duncan goes still further. It was there held that a ribbon attached at the place proper for the seal, by being inserted in slits cut for the purpose, was not in law a seal, though Chief Justice Gibson, before whom the acknowledgment of one of the grantors had been taken, had used it as such and so declared in his certificate. This was not on the ground that it was not an official seal, for in such case an official seal is not required under any act of assembly, but that it was not a seal at all, and that calling it such did not make it one. It was argued that, as the last word in this will, at the conclusion of the sentence above quoted, was “seal,” and a seal might precede as well as follow the signature, the word so written, coupled with the declaration in which it was contained, must be accepted as the seal itself. The argument, which is similar to that urged in Taylor v. Glaser, is ingenious but not convincing. The words were written by the donee herself, and manifestly expressed an immediate intention to do something after they were written. The declaration was, that she had thereunto set “ her hand and seal; ” she certainly had not yet set her hand, because she immediately proceeds to sign the instrument, intending, perhaps, to set the seal also, but failing to do it. It is impossible to believe that this testatrix, who was a lady of great intelligence, and, it is reasonable to suppose, not unfamiliar with ordinary legal forms, believed or intended that the word thus used as part of the text of her will should take the place of a seal; and her incomplete intention to add one, cannot, under the authorities, be accepted as a compliance with the requirements of the power. In the late case of Miller v. Ruble, 107 Pa. 395, where the deed was sealed but not signed by the husband of one of the parties, it was sought to supply the omission by the concluding sentence, “In testimony whereof the said parties have hereunto set their hands and seals the day and year first above written,” and also by the fact that sealing, not signing, was the essential part of the execution of a deed; but it was held, though the husband had acknowledged the instrument before a justice of the peace, that the omission was fatal. It is true that equity will, in favor of a wife or children, charities, purchasers, or creditors, relieve against defects in the execution of powers, where the defect is only with regard to matters of form, and the omission of a seal is of this character ; but this relief is never granted in favor of mere volunteers, not dependent for support upon the donee of the power; and, if the appointment be to some who are within the protected class and also to others who are not, the relief given will not be extended to the latter. Nothing could be more technical than this branch of the law, nor, as applied to the circumstances of the present case, more opposed to our sense of what ought to be done. It may be that the Supreme Court, which in questions not arising under the constitution or the laws of the United States, is not restrained by the fear of any higher tribunal, may feel at liberty to do what in England required an act of parliament, and hold the absence of a seal no longer material. Judge Brackenridge, in Alexander v. Jameson, 5 Binn. 246, where he expressed the opinion that a seal was simply a relic of bygone days of ignorance, intimates that such a course would be proper; but the Orphans’ Court cannot make or unmake the law, and until the decisions in the cases referred to have been overruled, we are bound to follow them. Exception sustained, and adjudication modified accordingly. A dissenting opinion was filed by Ashman, J.: The argument of the majority opinion may be conceded to be sound, and yet its conclusion may be doubted. It is true that every form prescribed by the donor of a power must be respected by the donee, and that the latter may not object, by way of excuse for his neglect, that the formality is useless. It is also true, that where a writing is required to be sealed, an attestation clause stating that it is sealed, but without an actual seal, will not validate the instrument. In Taylor v. Glaser, 2 S. & R. 502, there was no pretence of a seal, and only a flourish under the name of the grantor. In Duncan v. Duncan, 1 W. 322, a ribbon had been inserted, but only as a preliminary to sealing, and it showed on its face that no seal had been impressed. In the present case the donee executed the power by an instrument which appeared to possess every requisite appointed by the donor. Her will contained all necessary disposing words, with a testimonium clause that she had affixed her hand and seal; and her signa-, ture was accompanied by a dash or straight line, in the place appropriated to a seal. Why may not this mark be regarded as a seal? The word “seal” itself, without any mark, when annexed to the grantor’s name, has been held a proper symbol: Whitely v. Davis’ Lessee, 1 Amer. Law Rep. 333; 1 Swan (Tenn.) 333. The majority opinion seems to intimate that because the stroke was only one sixteenth of an inch in length, it was too small; but surely this reason will not be pressed. But it is also argued that because the testatrix had elsewhere in the will used a dash in lieu of a period, the character cannot be accepted here as a seal. Why not? May not the same character be used for different purposes, just as the writer may intend it? The testatrix declared that she had sealed the will, and the will shows that in the place where a seal is always placed, she had made a dash. Must her declaration go for nothing, because she had in some places used the dash as a period ? The opinion says the rules of punctuation required that she should use a period after her name. But it is evident that the testatrix did not always obey the rules of punctuation. She placed the ordinary period at the end of some sentences and a dash at the end of others, and at the close of one sentence she made no mark at all. Neither of the witnesses to the will observed these rules; there was no period to their signatures, and there was none to the date which was written below. The will itself was written by the testatrix, and with the belief, it is fair to presume, after the declaration of Tilghman, C. J., in Alexander v. Jameson, 5 Binn. 241, “every man now takes what seal he pleases,” that any device would answer for a seal. The court, and this is said with great respect, have now gone beyond the limits reached by any reported case. In every instance, in which an instrument has been held' to be unsealed, the writing contained no mark or character whatever, where a seal should have appeared. Duncan v. Duncan was not an exception; a loose ribbon had been inserted, which is not said to have been even tied, and which the slightest friction might have detached from the paper; and the sole purpose of which was to form a background for the wafer or wax. On the other hand, a piece of paper, fastened by mucilage to an instrument, is a sufficient sealing: Turner v. Field, 44 Mo. 382. Without any approach to levity, it seems as illogical to say that the testatrix could not have intended this mark as a seal because it is sometimes used as a period, as to say that when she spoke of her “seal,” she must have intended a fish, because a “seal” is sometimes a fish. It will be found that when astuteness has been resorted to, courts have employed it to uphold and not to defeat the intention of a donee. Where the power directed an appointment by will under seal, Lord Kenyon held that a will written on stamped paper was a valid execution, for the reason that the stamp was equivalent to a seal: Sprange v. Barnard, 2 Bro. C. C. 585. And Mr. Sugden refers to a decision of Lord Eldon, that a deed attested to have been under seal and delivered, will, in the absence of contrary evidence, be presumed to have been sealed, although no impression appears upon the parchment: Sugden on Powers, 1 Am. ed., 236. The first of these cases has been criticised, but neither of them has been overruled; and they go far beyond what is required to sustain this will. From the decree of distribution as ordered by the court in banc, William Hacker, trustee, etc., under the will of Ellen Wain, took this appeal, specifying the said decree as error.
121 Pa. 205Mifflin v. Mifflin (1888)
FROM THE DECREE OE THE COURT OE COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY. No. 154 January Term 1888, Sup. Ct.; court below, No. 27 September Term 1885, C. P. No. 4, in Equity. On October 22, 1885, William Mifflin filed a bill in equity against James Mifflin, substituted trustee under the will of Sarah L. Mifflin, J. Sergeant Price, trustee under the will of James L. Mifflin, Theresa W. Mifflin, James Mifflin, Dorothea T. Frohock, widow, formerly Mifflin, and Thomas Mifflin, for 'a partition real estate and an account. Answers having been filed, and issue, the cause was referred to Mr. George Tucker Bispham, as examiner and master. The report of the master, as filed finally on June 9, 1887, so far as relevant to the 'questions in this case, showed that on June 9, 1818, John Large, of Philadelphia, by deed poll duly acknowledged and recorded, declared that he stood seized of certain real estate therein described in trust for his sister, Sarah L. Mifflin, wife of Thomas Mifflin: In Trust for the sole and separate use of her, the said Sarah Mifflin, during all the term of her natural life, notwithstanding her present or any future coverture, free from the intermeddling or control of her said husband or any future husband, which the said Sarah may have, and to be in nowise liable to his debts or engagements, and, from and immediately after the decease of her, the said Sarah Mifflin, In Trust for such uses, intents and purposes, and for such estate and estates as she, the said Sarah Mifflin, by her last will and testament, or any writing purporting to be her last will and testament, shall order, direct and appoint, and for want or in default of such direction, order and appointment, then In Trust for the use of all and every the child or children, which she the said Sarah may leave to survive her, in equal shares as tenants in common in fee, and the lawful issue of any such child or children of her, the said Sarah, that may then be deceased, such issue of any deceased child or children to take only such part or share thereof, as his, her, or their parent would have done, had he, she or they been living at the time of the decease of the said Sarah Mifflin. Provided Always Nevertheless, that, if the said Sarah Mifflin shall at any time during her natural life choose to sell and dispose of the same premises with the appurtenances, and by any writing under her hand order and direct the same to be absolutely sold and disposed of in fee simple and so converted into personal estate for her use, then In Trust to sell and dispose of the same absolutely in fee simple to any person or persons either at public or private sale for the best price or prices that can be obtained therefor, and by proper deed or deeds, conveyances or assurances in the law, to be duly executed, acknowledged and perfected, to grant, bargain, sell and convey all the said above described premises with the appurtenances to the purchaser or purchasers thereof, his, her or their heirs and assigns forever, free from all trusts, limitations and restrictions whatsoever; and, in case she, the said Sarah, shall at any time during her natural life choose or direct in manner aforesaid to raise or borrow any sum or sums of money on the same premises, then In Trust by indenture of mortgage to grant and convey in mortgage the same premises with the appurtenances for securing the payment of any such sum or sums of money that may be borrowed for the use of her, the said Sarah...... On March 19, 1816, Dorothy Large, widow, of Philadelphia, by indenture duly acknowledged and recorded, conveyed certain premises therein described, to Phoebe Morris: Upon this special trust and confidence, nevertheless, that she, the said Phoebe Morris and her heirs do and shall, at all times during the natural life of Sarah Mifllin, the wife of Thomas Mifflin, of the city of Philadelphia. merchant, permit and suffer her, the said Sarah Mifflin, to use, occupy, possess and enjoy the said premises and to receive and take the rents, issues and profits thereof to and for her own sole and separate use .and disposal, notwithstanding her coverture, and without being in anywise subject and liable to the debts, management, power and control of her present husband, or any husband she may hereafter take,.....and from and immediately after the decease of her, the said Sarah Mifflin, then to and for such person or persons, and for such uses and estates, as she, the said Sarah Mifflin, notwithstanding her coverture, by any deed or writing under her hand and seal, attested by two or more credible subscribing witnesses, or by her last will and testament or by any writing purporting to be her lastwill and testament, to be signed and attested as aforesaid, shall or may direct, limit or appoint, and, in default of such direction, limitation or appointment, then to the use of all the children of her, the said Sarah Mifflin, by her husband, the said Thomas Mifflin, that shall be living at the time of the decease of her, the said Sai'ah Mifflin, their heirs and assigns, in equal parts as tenants in common, and not as joint tenants, and, for want of any such child or children, then to the use of the righl heirs of her, the said Sarah Mifflin, forever: provided always nevertheless that it shall and may be lawful to and for the said Sarah Mifflin, notwithstanding her coverture, and whether she be covert or sole, to mortgage the aforesaid premises for securing the repayment of any moneys to be borrowed by her with interest for the same, and to contract and agree with any person or persons for the sale and purchase' of the premises and by deed or deeds of conveyance to grant and convey the same to the purchaser or purchasers thereof in fee simple; and the moneys, so to be borrowed, or arising from the sale of the premises, to receive, appropriate and apply in such way and manner as she may see fit: and to and for no other use, intent or purpose whatsoever. Sarah L. Mifflin became a widow and afterwards, on December 7, 1856, died, testate, leaving to survive her the following children born on the dates given: James L., June 26, 1800; Mary, December 26,1804; Martha, November 7,1807; Thomas, March 5, 1811; Phoebe M., March 12, 1814 ; John L., January 23,1817; William (the complainant), January 22, 1820. The provisions of Mrs. Mifflin’s will, dated June 23, 1855, so far as material to the questions raised, were as follows: All the rest and residue of the property and estate to me belonging or subject to my appointment I devise and appoint unto my brothers, John Large aud James Large, their heirs and assigns, In Trust for the sole and separate use of my children, James L. Mifflin, Thomas Mifflin, John L. Mifflin, William Mifflin, Mary Mifflin, Martha Mifflin and Phoebe Morris Mifflin, to receive and pay over to them or to permit and suffer them to take, receive and enjoy, each an equal seventh part of the rents, issues, interest and profits thereof, for and during their respective lives, but without liability to the debts or engagements of them, my said children or any of them; and upon the further Trust on the decease of my said children respectively, if leaving any children or child or the issue thereof to survive him or her, to grant, assign and convey his or her proportionate share of the said residuary property and estate to and among the children or child or the issue thereof, of my said children, if but one solely, if more than one, equally share and share alike, the issue of deceased children of my said children to take equally the share or shares his or her parent would have taken if living, in fee simple; but, if any one or more of my children shall die without leaving any child him or her surviving, then upon the further Trust to receive and pay over the rents and income of such share or shares of such decedent or decedents to and equally among my surviving children or the issue of them deceased leaving issue, ■share and share alike, such issue taking the share if more than one, equally, if but one, solely, which their parent or parents would have taken if living, such accruing shares to be regarded in all respects as part of their original shares, both as to the enjoyment and transmissions thereof; provided, that each of my children shall have power to limit and appoint by will in writing, to take effect after death, the rents and income of his or her share to any surviving widow or husband he or she may leave, to receive and enjoy the same until the death or marriage of such widow or husband, whichever may first happen; and provided that, as respects any of my children who may leave issue at his or her death, upon the further Trust to assign, grant and convey his or her share of said property and estate to and among his or her child, children or issue, as ho or she may limit and appoint by writing in the nature of a last will and testament, whether in fee simple or for any other estate, upon trusts or otherwise; and, upon default of any such will or appointment, upon the further Trust, after the decease of any of my children who shall leave issue to survive him or her, to hold the shares of any such issue who may be born during my lifetime upon the like trusts and with the same powers, as the shares hereinbefore devised or appointed in trust for my own children: provided, that it shall be lawful for any of my grandchildren or more remote issue, so born within my lifetime, to dispose of his or her share of said property and estate absolutely, and in fee simple, to whomsoever it may please him or her to give and devise the same; and provided, if any one of my children be the last survivor of my family without leaving any issue of any of my children him or her surviving, then upon the further Trust to assign and convey all the said trust estate and property, as he or she shall, by last will and testament, direct, limit and appoint, in fee simple or for any less estate. All the children of said Sarah L. Mifflin, except the complainant, having died before the filing of the bill, their interests • in the real estate embraced in said deeds had so passed by will and descent that, if the questions raised were decided in favor of the complainant, he would be entitled to a partition of the real estate and a division of the income fund between himself and the respondents, the beneficiaries under the will of James. L. Mifflin, deceased, in the proportion of five sixths to the complainant, and one sixth to the said beneficiaries. The master, in his conclusions of law, found that the determination of the general question depended upon the answers to be given to three questions: 1. Did the limitations by way of remainder, in the deeds or either of them, give Mrs. Mifflin a fee under the Rule in Shelley’s Case? Considering the deeds separately in their limitations, and discussing or citing Melsheimer v. Gross, 58 Pa. 412 ; Sheets’ Est., 52 Pa. 268; Guthrie’s App., 37 Pa. 23; Stewart v. Kenower, 7 W. & S. 288; Physick’s App., 50 Pa. 128, the master was of opinion that Mrs. Mifflin took but a life estate in the premises described in the deeds referred to. 2. Did the existence of the powers in said deeds, or either of them, enable her to dispose of the fee in the same way as if she had a seisin in fee ? The master, citing or discussing 2 Chitty’s Bl. Com., 108; 4 Kent, Com., 319; Second Ref. P. Church v. Disbrow, 52 Pa. 223; Ege v. Medlar, 82 Pa. 101; Lancaster v. Dolan, 1 R. 248; Drusadow v. Wilde, 63 Pa. 170, examined the contention of the respondents, that while the existence of the powers conferred might not absolutely vest a fee, yet that it gave to their possessor such attributes of ownership over the estate that she might be considered as enabled to make all dispositions thereof which could be made by the owner of the fee; and he was •of the opinion that the question was ruled by Smith’s App., 88 Pa. 492; and, studying that case and Sugden on Powers, Law Lib. ed., 495*; Lewis on Perp., 83*, 84*, 482*; Gray on Perp., § 524; Gray v. Hammersley, 3 Sim. 513 ; Barford v. Street, 16 Ves. 135; Irwin v. Farrer, 19 Ves. 86; Reith v. Seymour, 4. Russ. 263 ; Scott v. Joslyn, 26 Beav. 174; Hughes v. Wells, 9 Hare 749; Birdsall v. Richards, 18 Pa. 256; Dodson v. Ball, 60 Pa. 492, he did not find that there was any authority which justified him in holding that an unexercised power of appointment could be of any avail in supporting the dispositions made in Mrs. Mifflin’s will; it seemed to the master that she did not have an estate in fee simple, and that the mere fact that she was the donee of certain powers of appointment during her life, which she did not exercise, would not prevent the appointment, under the powers which she did exercise, from being, read into the original instrument under the rule. 3. ' Were the limitations in Mrs. Mifflin’s will good, as appointments-under her powers ? The master held: “ The answer to this question is to be found in Smith’s Appeal, 88 Pa. 492, already cited. It being conceded or demonstrated that the provisions of Mrs. Mifflin’s will are to be interpreted as if read into Exhibits A and B, the conclusion follows that by those deeds it was attempted to do what the rale against perpetuities forbids, viz., to limit an estate for the life of a person not in being. The case now under consideration is, indeed, a stronger case than Smith’s Appeal. In Smith’s Appeal the rule against perpetuities was held to have been violated, because the dispositions of the will then in question might have resulted in limiting an estate for a life not in being; here they actually did so result. William Mifflin, the complainant, was not bom until between six and seven years after the deed of 1813 was executed. Reading the provisions of his mother’s will into that deed, and the instrument will be a declaration by John Large (the trustee) that he is seized in fee of certain real estate in trust for Mrs. Mifflin for life, with remainder to her son, William Mifflin (born six years after the date of the deed), for life, with remainder to his children in fee, but with a power of appointment given to him to limit, by his will, the estates of his children upon the same trusts as those declared in his mother’s will in respect to himself. u To state the substance of this deed with the language of Mrs. Mifflin’s will incorporated in it, is to demonstrate that this case is upon this question ruled by Smith’s Appeal. I therefore think that the limitations in Mrs. Mifflin’s will, so far as they relate to property included in deeds A and B, are invalid, inasmuch as they cause those instruments to offend against the rule forbidding perpetuities. Mrs. Mifflin, therefore, is to be considered as having died without exercising her power of appointing by will, so far as these properties are concerned ; and her children, therefore, took remainders in fee which were not directed by her will, but which passed by their wills, if any, or if none, under the intestate laws. The trustee under her will, I suppose, took the dry legal estate by virtue of her devise to him, but he was seized thereof, as the trusts declared by her were invalid as to said properties, under the evidence in this cause, as to one sixth in trust for the defendant J. Sergeant Price, as trustee under the will of James L. Mifflin, deceased, and as to five sixths in trust for the complainant.” Considering next the question whether the rights of ■ the plaintiff had been affected by lapse of time, or by any family settlement, in the light of the facts in evidence as governed by the principles of cases discussed: Burkholder’s App., 105 Pa. 37; Wilen’s App., 105 Pa. 124; Follmer’s App., 37 Pa. 121; Hagerty v. Albright, 52 Pa. 274; Downes v. Bullock, 25 Beav. 54, affirmed in 9 H. of L. 1, the master concluded by recommending an interlocutory decree that the complainant was entitled to the five sixth interest in the premises described in the two assurances ; that a partition of said real estate be had and the share of the complainant set off to him in severalty ; that an account should be had between the parties, and that the plaintiff should be entitled to be recouped out of the trust fund the over-payments made to the defendants for the six years last past, by reason of the mistake in paying to them one half instead of one sixth of the rents, issues' and profits and income of said premises. It was alleged in various exceptions filed by the defendants that the foregoing report of the master was erroneous, for the reasons, inter alias: 1. Because the master erred in reporting in respect to the premises described in deed marked Exhibit A, and appended to this exceptant’s answer, that the same were not affected or controlled by the will of Sarah L. Mifflin, deceased, and that in respect to the same premises her will infringed upon the rule against perpetuities.2 2. Because the master has. erred in reporting in respect to the premises described in deed marked Exhibit B, and appended to this exceptant’s answer, that the same were not affected or controlled by the will of Sarah L. Mifflin, deceased, and that in respect to the same premises her will infringed upon the rule against perpetuities.3 3. Because the master has erred in awarding partition of the two parcels of realty referred to in the foregoing two exceptions, or either of them, in the' manner and form contained in his report.4 The said exceptions having been overruled by the master after due consideration, they were then renewed in court, and on the argument thereof, the court, Hare, P. J., on November 26, 1887, filed the following opinion and decree. By deeds dated June 9, 1813, and March 19, 1816, respectively, as annexed to the complainant’s bill, Sarah Mifflin took an estate for life in the premises in controversy, with a general power of appointment by deed or will. She devised the land to her children for life, with power to appoint the same by any instrument in the nature of a will, with remainder to their children; and the question is whether such an execution of the power conferred by the deeds is valid in favor of the grandchildren who claim under it, or fails as tending to a perpetuity, because they might have been, as some of them actually were, born after the delivery of the deeds. Agreeably to the view taken by Mr. Gray, a perpetuity is an estate or interest which, from its indestructibility and incapacity for alienation, if the law tolerated it, might be transmitted indefinitely, under the authority conferred by the original donor, without power on the part of the holders to treat it absolutely as their own, or blend it with the mass of property which each successive owner may dispose of as he thinks proper: Gray on Perpetuities, §§ 140, 141, 526. Such also substantially is the definition given by Chief Justice Gibson, in Hillyard v. Miller, 10 Pa. 334, and adopted in Smith’s Appeal, 88 Pa. 495. Reasoning from these premises we are led to a conclusion favorable to the defendants. In whatever words an estate is conferred, and although it be only for life, it cannot, agreeably to the above view, be a perpetuity, if the holder is clothed with power that will enable him to set aside the limitations imposed by the original grantor and confer an absolute interest on himself or on another person. Such a tenant is, so far as he himself is concerned, and in every essential particular, as much an owner as if he had the fee, and the property would descend at his death to his heirs. He can at any moment loose the bonds by which it is fettered and render it as available for the purposes of life and business as if there were no settlement. It is not therefore surprising that the English courts should have held that when property is settled on A. for life, with power to will and convey, he may make any disposition of it which would be valid if he were absolutely the owner; and, in determining whether the limitations which he creates contravene the rule against perpetuities, the computation will date from the period when the power is exercised, and not from the execution of the instrument by which the power was conferred. The rule came to us from England, and was formulated there by judges who, from Taltarum’s Case to the present day, have shown themselves indisposed to tolerate any scheme of settlement which would unduly extend the authority of an owner beyond the grave, and enable him to subject future generations to his caprice or wishes. We should not, therefore, deviate from the path which the English courts have marked out, unless some decision in this state points in a different direction. Smith’s Appeal, above cited, is said to be such a case. The testator, Lewis Ryan, there devised his property in trust for the sole and separate use of his daughters for life, and immediately on the death of any of them, to pay over the principal sum to such person or persons as such daughter might direct by any instrument of writing in the nature of a last will and testament. One of the testator’s daughters, Mrs. Smith, died some years afterwards, and her will gave all the residue of her estate, including that which she was authorized to appoint under her father’s will, in trust for her sons and daughters for life, and upon their deaths to assign the same to such person or persons for such estates as they should appoint by will. The question was, whether this execution of the power was valid. It seems to have been taken for granted, both by court and counsel, that the interest conferred by Ryan’s will was indestructible and would therefore be a perpetuity, if it could be prolonged, under the authority conferred by him, beyond a life or lives in being at his death, and twenty-one years after-wards. The' test consequently was to write the clause of Mrs. Smith’s will when executed, into the will of Lewis Ryan, when it -would clearly be bad, as including children -born after his death. This conclusion would seem to be sound from whatever point of view it may be regarded. The power conferred on Mrs. Smith was to be exercised by an instrument which could not take effect until after her death, and did not take the case out of the rule that nothing can be done under a power which could not have been done by the donor. The reason is so clearly stated by Mr. Gray that I will not attempt to put it in other words. “If a man who has a vested limited interest in property has the present unconditioned right to turn that limited interest into an absolute interest, and thus to acquire the present unconditioned, absolute interest, he is regarded by the rule against perpetuities as already having such interest. A tenant in tail is such. A life tenant, with a general power exercisable by deed is also such a person. To this extent, the rule sacrifices form to substance, but the substance must be there. There must be a person with a vested limited interest, who has the immediate right to become the present absolute owner. Such is not the case when a life tenant has a power which he can exercise only by will. The general rule must govern unless the exception is made out, and the exception is not made out, unless there be a present right to acquire the present absolute interest.” If the above reasoning is correct, and it is not easy to discern a flaw, the life tenant in Smith’s Appeal was, and the life tenant in this case was not, within the rule of perpetuities. The deeds under which the testatrix, Sarah Mifflin, acquired the property in dispute, authorized her to agree with any person or persons for the sale and purchase of the premises, and by deed or deeds of conveyance to grant the same to the purchaser or purchasers thereof in fee simple, and the money so derived to apply in such manner as she may see fit. The deed set forth in Exhibit A is to the same effect. Although the power so conferred on Mrs. Mifflin was “to sell and convey,” there is, I think, little doubt that she might have executed it by a deed of bargain and sale for a nominal consideration, in trust to reconvey to herself; because she was authorized to apply the purchase money as she saw fit, and whether this was much or little, concerned no one but herself. If this inference is just, she liad an immediate right to become the present absolute owner, and even if a trust to reconvey would have been beyond the scope of the power, she could undeniably have vested an absolute interest in the buyer, and so put the property beyond the scope of a rule which only applies where the holder’s estate is indestructible. A power to sell, and re-invest the purchase money for the same uses, would stand on a different footing; but that cannot well be a perpetuity which may be converted at any time into a fee simple, and, together with its proceeds, given, sold, or otherwise disposed of, as the parties interested may desire. We may therefore infer that the judgment in Smith’s Appeal is consistent with the rule against perpetuities as therein defined, and the conclusions drawn by Gray and other writers of like repute, and tends to sustain rather than condemn the execution of the power now before us. If the declaration in Smith’s. Appeal that the test of the execution of a power is to write the word in the instrument through which the power came, had been laid down as a universal rule, we should have applied it unhesitatingly from deference, to the tribunal by which it was enunciated, but the language of a court must be taken relatively to the subject-matter, which in that instance was a perpetuity, while in this it is a destructible estate. It seems proper to add, that the master, to whom we are indebted for much valuable light, would have reported in favor of the defendants, had the powers conferred by the deeds of June, 1813, and March, 1816, been exercised, but he was of opinion that a destructible estate is within the rule against perpetuities, unless it is actually destroyed. In the absence of an authority directly on the point, it cannot be regarded as settled. But the view which we have taken seems to be in accordance with the definition of a perpetuity given in Smith’s Appeal, and the cases there cited. The exceptions to the master’s report, saving the fourth, fifth, sixth, seventh, eighth and ninth, are sustained, and a decree will be made to carry out the conclusions at which we have reached. A decree having been entered accordingly, the complainant took this appeal, specifying as error, inter alia: 1. The dismissal of the complainant’s bill. 2. The sustaining defendants’ 1st exception.8 3. The sustaining defendants’ 2d exception.3' 4. The sustaining defendants’ 3d exception.4
121 Pa. 225Bell v. Mahn (1888)
ERROR TO THE COURT OE COMMON I’LEAS NO. 3, OE PHILADELPHIA COUNTY. No. 161 January Term 1888, Sup. Ct.; court below, No. 502 March Term 1886, C. P. No. 3. On May 10, 1888, a case stated was filed wherein Frank F. Bell, treasurer of the city of Philadelphia, to the use of the commonwealth of Pennsylvania, was plaintiff, and H. B. Malm, defendant, whereby it was agreed :■ 1. That the above defendant is now and has been since January 1, 1885, the lessee and manager of the Arch Street Opera House, on Arch street above Tenth street, in the city of Philadelphia ; and as such lessee and manager exhibits and performs operas, consisting of airs, choruses and recitations, and that the actors appear upon the stage in stage costume, and exhibit said performances, partly in song and partly in dialogue. 2. That the said defendant has not obtained a license from the state of Pennsylvania, allowing him to show, hold, or exhibit the said operas and operatic exhibitions in said building. If the court shall be of the opinion that the law requires the said defendant to obtain an annual license from the said state of Pennsylvania, allowing him to show, hold, or exhibit the said operas, and to give operatic exhibitions in the county of Philadelphia, then judgment shall be entered for the plaintiff and against the defendant in the sum of $500 ; but if the court shall be of the opinion that the law does not require the said defendant to obtain such license from the state, then judgment shall be entered for the defendant; the costs to follow judgment, and either party reserving, etc. The case of the plaintiff was based upon the act of April 16, 1845, P. L. 583, providing: § 2. That.no theatrical exhibition or exhibitions of circus performances or menageries shall hereafter be allowed in this commonwealth, without a license from the state; and the treasurer of any county shall have authority to grant licenses, under Ms hand and seal of the proper county, for such exhibition on the payment of the following sums, to wit: For every theatre or circus in the city or county of Philadelphia, the sum of $200 ; and for every theatre or circus in the county of Allegheny the sum of $100 ; and for every theatre or circus in any other county in this commonwealth, the sum of $50 ; for every menagerie the sum of $40:..... By § 24, act of April 10, 1849, P. L. 575, the price of a theatre or circus license in the city or county of Philadelphia was increased to $500 ; in Allegheny county, to $200, and in any other county, $80. Other acts of assembly upon the subject and relied upon were : Act of May 15, 1850, P. L. 773 ; act of April 14,1851, P. L. 596; act of March 80, 1864, P. L. 141; act of March "23, 1865, P. L. 642; and act of May 22, 1879, P. L. 73. On May 29, 1887, the court, Finletter, P. J., ordered judgment to be entered on tbe case stated, in favor of the defendant, no opinion being filed. The plaintiff then took this writ assigning said order as error.
121 Pa. 231Baizley v. The Brig Odorilla (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY. No. 176 January Term 1888, Sup. Ct.; court below, No. 3081, December Term 1873, old D. C. On January 28, 1874, John Baizley filed a libel, by which, as amended on December 30, 1884, by leave of court, it was averred: That on or about January 27, A. D. 1874, and during a period of five months preceding, at the port of Philadelphia, your libellant, at the special instance and request of one Captain Holland, master and managing owner of the vessel hereinafter mentioned, furnished materials and performed work and labor in the repairing, fitting, and furnishing and equipping of the brig Odorilla of Philadelphia, of five hundred and fifty tons and upwards, then lying at a wharf at Philadelphia aforesaid, where she still remains, not having proceeded on her voyage next after or since the work done and materials furnished as aforesaid. That for his said labor and materials furnished there is due to your libellant the sum of $1,496.77, as per bill of particulars hereto annexed. Wherefore jurar libel-ant prays that the said brig, with her tackle, furniture, and apparel, may be attached, condemned, and sold by process of this 'Honorable Court for payment of the said sum due to him; and that the said owner or owners, and master and captain, and all others concerned in said vessel, may be warned to appear and show cause, etc. An attachment having issued under the provisions of § 8, act of June 18,1886, P. L. 618, a bond was filed under § 11 of the act and the brig was discharged from the attachment. , On February 10, 1884, A. H. Cain, as managing owner, for himself and as agent for Wm. J. Holland and others named, intervening for his and their interests, filed an answer to said libel, in which it was averred in substance that the respondents, all of the city-of Philadelphia, were sole and exclusive owners of said brig, at the time said work and materials were alleged to have been done and furnished; that neither the owners nor the master thereof ordered said labor or materials, nor was said brig, at the time a portion of said work and materials were alleged to have been done and furnished within the commonwealth; that by articles of agreement, in writing, respondents contracted with Worden & Evans, of Delaware, to build and complete said vessel for $22,000 ; that the alleged work and materials were done and furnished on-the order and credit of said contractors; that said vessel was built in the state of Delaware, but in order more conveniently to complete their said contract, the contractors brought the hull of the vessel to Philadelphia; that all the work and materials alleged prior to December 19th were done and furnished in the state of Delaware : “ That all the work and materials alleged to have been done and furnished in the repairing, fitting, furnishing, and equipping of said vessel, whether prior or subsequent to the said nineteenth day of December, or whether done and furnished while "said vessel was lying in the state of Delaware, or in the state of Pennsylvania, was done and furnished on the order and credit of said contractors, Messrs. Worden & Evans, and not on the order or contract of the respondents. That by reason of the premises it doth not pertain to this Honorable Court, nor is it within the jurisdiction of the court at all, to enforce the claim of the libelant, nor to call the respondent’s ship to judgment in respect thereto.” To this answer a replication was filed, and issue joined to be tried by a jury under § 13 of said act. At a second trial of the cause on March 22, 1887, the jury rendered a verdict in favor of the plaintiff for f1,420.74. The defendants then filed a motion “ for a new trial and in arrest of judgment ” with fourteen reasons assigned. These reasons all related to alleged errors in the charge to the jury, upon the facts and law of the case, and none of them raised the question of admiralty or state jurisdiction; one was as follows: 6. Because the learned judge erred in the answer to the defendants’ sixth point, which was as follows :— The fact that plaintiff after instituting this suit against the vessel, began another suit, in personam, against the contractors, Worden & Evans, and took judgment against them for the price of the identical goods mentioned and claimed for in the libel in this suit, is a bar to his recovery in this action. A fact once judicially found estops the party in whose favor it was found, from denying it. The fact found by that judgment was that the goods in question were ordered by Worden & Evans and furnished on their credit. Answer : I decline to affirm that proposition. A rule was granted as prayed for. On June 1, 1887, the court, Biddle, J., filing no opinion, discharged the rule for a new trial, but sustained the motion in arrest of judgment. The plaintiff then took this writ assigning as error the order arresting judgment upon the verdict for the plaintiff.
121 Pa. 238Huey v. Gahlenbeck (1888)
1 OE PHILADELPHIA COUNTY. No. 244 January Term 1888, Sup. Ct.,- court below, No. 255 March Term 1886, C. P. No. 1. On March 81, 1886, an action in case was begun by August Gahlenbeck against William G. Huey, to recover damages for personal injuries received.
121 Pa. 248Shryock v. Buckman (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 8 OE PHILADELPHIA COUNTY. No. 269 January Term 1888, Sup. Ct.; court below, No. 888 June Term 1878, C. P. No. 3. On July 3, 1878, an action of ejectment was begun by Charles M. Reynolds and Jane M., his wife, in right of said Jane M. Reynolds, against John W. Buckman, to recover possession of property at the southwest corner of 22d and Green streets. The plea was the general issue, not guilty. The plaintiffs both having subsequently died, Samuel S. Shryock and Libbie M., his wife, in right of said wife, and others, heirs at law of Jane M. Reynolds, deceased, were substituted as plaintiffs. At the second trial of the case on October 27, 1887 (the first being reported as Reynolds v. Buckman, 19 W. N. 568), it was agreed that prior to February 10, 1857, the title to the property in dispute was in Joseph H. Bonsall. The plaintiffs then read in evidence a deed dated February 10,1857, recorded February 20, 1857, in which deed the grantee was recited as “ Jane M. Reynolds, wife of Charles M. Reynolds.” The writ was then put in evidence to show possession by the defendant, when the plaintiffs rested. On the part of the defendant, there was offered in evidence the record of an apportioned mechanics’ lien, filed September 19, 1857, by Samuel S. Richie agaiust “ Jane M. Reynolds, owner or reputed owner, and Charles M. Reynolds, contractor; ” and in connection therewith, the record of a scire facias on said claim, showing that the writ was “ made known by posting and nihil habent as to defendants,” and judgment thereon for the plaintiff on October 24, 1857, for want of an affidavit of defence, liquidated at $130.44, with a levari facias upon said judgment and a return thereto, “ Sold to Samuel H. Swanzey for $1,050,” and sheriff’s deed to said purchaser dated May 22, 1858. The offer was objected to by the plaintiffs. By the court: Objection overruled and evidence admitted, with the understanding that it is to be followed by an effort to prove that the conveyance to Jane M. Reynolds was made with the intention to defraud creditors, and was in violation of the statute of Elizabeth.1 The defendant then offered, and, under objection and exception, read in evidence mesne conveyances passing the title from Samuel H. Swanzey to the defendant, and followed, also under objection and exception, with evidence tending to show that at the time of the conveyance to Mrs. Reynolds, February 10, 1857, Charles M. Reynolds, her husband, was insolvent and had caused the title to the property to be put into the name of his wife to keep it out of the reach of his creditors. In rebuttal, the plaintiffs offered evidence to meet the case of the defendant upon the question of the validity of the deed to Mrs. Reynolds, and the case closed. The court, Reed, J., charged the jury and answered the points of the plaintiffs, in part as follows: [The point for your consideration is a single one. It is whether Charles M. Reynolds conveyed the property or had the property conveyed to his wife, Jane M. Reynolds, for the purpose of putting that' property beyond the reach of his creditors, and, among those creditors, one Samuel S. Richie.]5 The facts which will help you to a conclusion are these: That on February 10, 1857, this deed was made by the original owner of the property, Joseph H. Bonsall, to Jane M. Reynolds; on the same day or the following day, February 11th, a mortgage was made which provided for the improvement of this property, the Bonsalls, the grantors, advancing a certain amount of money to enable Mr. Reynolds, and Mrs. Reynolds, if you please, to put improvements upon this property; as a part of the improvement of that property, on May 11th and on June 13th of the same year there was purchased from Samuel S. Richie a certain amount of lumber; Samuel S. Richie, by his own bill, appears to have trusted Charles M. Reynolds in the matter, and when the time came and'he was not paid, he filed his lien and the property was sold, and it is under that proceeding that the title here is made. If it is defective at that point, the whole title falls. The title is no stronger than this point. . [You will decide the question of fact by taking the testimony you have heard in the case, and taking the undisputed facts which appear by the records here and comparing them all together, to' ascertain as a matter of fact whether Charles M. Reynolds did have that property conveyed to his wife, in order that it should be beyond the reach of Samuel S. Richie and these other creditors. I think there is nothing more in this case for you than that.] 5 The plaintiffs ask me to charge you : 1. That the mechanics’ lien filed by Samuel S. Richie against Jane M. Reynolds, does not bind her. estate, as it does not set forth the fact of coverture. Answer : That point I will affirm. The question is whether this estate was the husband’s estate. 2. A mechanics’ claim filed against the real estate of a married woman is worthless, unless it appears on the face of the claim that the materials were furnished and the work done at her request, or on her contract. Answer: I affirm that also. 3. A mechanics’ claim filed against a married woman as owner and her husband as contractor, without evidence to show her written consent authorizing her husband to incumber her real estate, is void. Answer: Affirmed. 4. A judgment against a married woman which does not show her liability on its face is void. Answer : I affirm that. 5. When a married woman is the owner of a piece of real estate, and a mechanics’ lien is filed against said real estate, which lien is void upon its face, and a writ of scire facias is issued upon said lien and returned nihil as to said married woman, and a judgment entered thereon for want of an affidavit of defence and a levari facias, such sale passes no title to the purchaser. Answer: Taking that with what I have said on previous points, I affirm that also. 7 ******** The verdict of the jury was in favor of the defendant. A rule for a new trial being discharged and judgment entered on the verdict, the plaintiffs took this writ specifying as errors, inter alia: 1. The admission of plaintiffs’ offer.1 5. The parts of the charge embraced in [ ] 3 7. The answer to the plaintiffs’ 5th point.7
121 Pa. 260Appeal of Given (1888)Demurrer sustained and bill dismissed
FROM THE DECREE OE THE COURT OE COMMON PLEAS NO. 4 OE PHILADELPHIA COUNTY. No. 290 January Term 1888, Sup. Ct.; court below, No. 606 June Term 1882, C. P. No. 4. In September, 1887, Amanda M. Given filed a bill in equity against Howard R. Kern, which in substance averred: That on August 28,1882, George A'. Tomlinson, the son-in-law of the complainant, was arrested upon a warrant issued upon the complaint of Howard R. Kern, charging him with the uttering of a promissory note for fl,500, dated June 7, 1882, at two months, purporting to be fnade to the order of the complainant and by her indorsed, but with her signature as indorser forged and counterfeited thereon ; that Tomlinson, when arrested, was brought by the officers, accompanied by the defendant, to the complainant’s residence, when the facts were made known to her in the presence of Tomlinson, who did not deny that he had forged said indorsement; that it was then stated to the complainant that unless she executed a judgment bond to the defendant for f1,400, Tomlinson would have to go to prison, but that if she did execute it, Tomlinson should be released forthwith and the criminal proceeding abandoned; that at first the complainant declined to execute the bond, but after much solicitation by her daughter she finally consented and signed a bond for said amount which had been brought to her residence by the defendant already prepared, and the execution of it was solely for the purpose of obtaining the release of Tomlinson from further prosecution for the alleged forgery, and no further criminal proceedings were had against him; that judgment had been entered upon said bond to No. 606 June Term 1882, C. P. No. 4, in favor of said Howard E. Kern against the complainant; that on July 27th, and August 12, 1887, a scire facias and an alias scire facias, respectively, had been issued, and, although the complainant resided as a tenant in a house belonging to the plaintiff in the judgment, he was seeking to obtain a revival of it on two returns of nihil habet. The prayers were, (1) That the judgment bond aforesaid be declared illegal and void, and that the judgment entered thereon and the writs of scire facias to revive the same be stricken off; (2) That the defendant, plaintiff in the judgment, be restrained from further proceeding to obtain a revival thereof or to issue any writ of execution on the original judgment ; (3) For further relief. The bill was filed to the number and term at which the judgment had been entered. The defendant demurred to the bill: (1) For want of equity; (2) because the complainant had a complete remedy by rule in the cause wherein the judgment was entered; (3) because of her laches in proceeding by bill; and (4) because the bill was not sworn to. On September 17, 1887, the court, Aknold, J., filed this opinion and decree: This is a proceeding on the equity side of the court to have a judgment note declared void, and the judgment entered thereon and the writs of scire facias to revive the same struck off; and also to enjoin the plaintiff in the action in which the judgment was entered, who is the defendant in this cause, from further proceeding to revive the judgment or issuing execution thereon. A demurrer has been interposed upon several grounds, the chief among which is, that there is a full remedy at law by rule to open the judgment, which excludes the jurisdiction in equity, and this raises the question before us. While it is true that a rule to open a judgment, devised at the time when we had no court of equity, is a substitute for a bill in equity and is conducted upon equitable principles, yet it does not follow, since the courts have equity powers to be enforced according to the forms and procedure in equity, that a bill in equity is a substitute for a rule to open the judgment, so as to supersede or displace the procedure by rule, in cases in which ample relief may be had by that method. There are many and substantial reasons for this. The remedy by rule on the law side of the court is adequate; it is more expeditious ; it preserves the right of trial by jury, and is less expensive and burdensome. The doubt which was harbored as to the right of appeal to the Supreme Court, in case of the refusal of the court to open its judgment in a proper case, is now dispelled by the act of April 4, 1877, P. L. 58; although there never was any ground for it, as the Supreme Court had previously entertained such appeals, and in Knox v. Flack, 22 Pa. 337, reversed the Common Pleas for not striking off or opening a judgment entered on a warrant of attorney. In Banning v. Taylor, 24 Pa. 291; Hutchinson v. Ledlie, 36 Pa. 112, it is said that the courts have the power to open or set aside judgments entered by warrant of attorney, and that they may do so.upon cause appearing on the record, and also for causes that may be made to appear by evidence. So that it is plain that both at common law and under the statute, the power of the courts over judgments entered by warrant of attorney, is ample. During the argument our attention was called to the case of Wistar v. McManes, 54 Pa. 318, in which it was held that after the discharge of a rule to open a judgment, a bill in equity may be filed to restrain the plaintiff from further proceedings upon the judgment. An examination of that case shows that not only was relief prayed for, but discovery also, it being alleged that proof of the illegality of the judgment could be obtained only by interrogatories to the defendants. That case was decided before the act of 1869, which authorized parties to call and cross-examine their adversaries without being concluded by their testimony. Now that this right has been secured at law, there is no longer any necessity to resort to a court of equity for discovery; and this, together with the right of appeal given by the act of 1877, assures a full, adequate and convenient remedy at law, which ought to exclude the expensive and tardy proceedings in equity. No fraud being charged in the bill, and no discovery or account being prayed for, there seems to be no special grounds for the exercise of equity jurisdiction in this case. The defence which is interposed against the judgment is wholly legal. Without intending to depart from the practice sanctioned in Wistar v. MoManes, after the discharge of a rule to open a judgment, we decide that a bill to declare the judgment void and restrain the execution of it, will not be entertained before the refusal or discharge of a rule to open the judgment. A final decree having been signed, the complainant took this appeal, assigning the said decree as error.
121 Pa. 268Lewars v. Weaver (1888)
ERROR TO THE COURT OF COMMON PLEAS OF COLUMBIA COUNTY. No. 150 January Term 1887, Sup. Ct.; court below, No. 88 September Term 1888, C. P. On June 18, 1883, a scire facias sur mortgage was issued in favor of James S. Lewars, administrator of Joseph Clewell, deceased, against Jacob Weaver and Abigail Weaver, his wife, with notice to terre-tenants, to recover upon a mortgage executed by the defendants to the said deceased, dated February 13, 1878, upon real estate the property of said Abigail Weaver, to secure the sum of $500, payable February 13, 1879. The mortgagee died in 1882, and letters of administration were granted to said Lewars. The plea was, “ non est factum, with leave to give the special matter in evidence.” On May 11,1885, counsel agreed by writing filed to dispense with trial by jury and to submit the decision of the cause to the court, under the provisions of the act of April 22, 1874, P. L. 109 * At the trial on May 20, 1885, the plaintiff put in evidence the mortgage, dated February 18, 1878, purporting to have been duly acknowledged the same day before Lewis Yetter, notary public, with a separate examination of the wife, and rested. The defendants then called Charles Weaver, a son of Fayen Weaver: Q. What was it that your grandfather said to your grandmother, about signing the paper ? Objected to. By the court: Objection overruled.4 Q. Did Lewis Yetter tell your grandmother what kind of paper it was? A; No, sir. Q. Did anybody? A. No, sir. Q. Did your grandmother read the paper ? A. No, sir. Q. Did anybody read it to her? A. No, sir. Q. Your grandmother signed the paper after she had been asked to? A. Yes, sir. Q. Who was in the room when she signed the paper? A. All of us.' Q. Was there any time while ’Squire Yetter was there that your grandfather went out of the room? A. No, sir. Q. After your grandfather and grandmother had signed the paper, what was done with it ? A. Yetter put it in his pocket. Q. And then what happened ? What did Yetter and your father do after that ? A. They wanted them to stay for dinner, but they didn’t do it, and they went right home on the next train to Catawissa. Q. Were you in the room all the time that Yetter and your father and grandfather and grandmother were there ? A. Yes, sir. Q. Did you go back to school that forenoon ? A. No, sir. Q. Did you ever see your father and Mr. Yetter there before or after? A. No, sir. Q. They were never there but once? A. No, sir; yes, sir; yes, they was never there but once. Q. What room was it that they were in, all you there together ? A. The kitchen. Q. Now, I ask the question, what Mr. Jacob Weaver said to Mrs. Weaver, his wife, about signing the paper ? Objected to. By the court: In the presence of Yetter? Mr. Freeze: In the presence of Yetter; to be followed by inquiry whether what he said to her was what Yetter said to him about having her sign the paper. Mr. Rhawn : We object, because Mr. Clewell was not there, was not present, and, generally, because it is incompetent and irrelevant. Mr. Freeze : We think it relevant testimony in this view of it, that, whether Clewell was there or not, Yetter was there as his agent, acting for him and transacting this business; and, so far as anything that was said or done by Yetter in the transaction of it was concerned, it would be testimony as well as if Clewell himself had been there. By the court: Is the mortgage in the handwriting of Yetter? Mr. Freeze : Yes, sir, in the handwriting of Yetter and witnessed by Yetter and Fayen Weaver. Mr. Rhawn : There is no evidence that Yetter was acting as the agent of Clewell, nor would there be any inference of that fact from the evidence that the mortgage is in the handwriting of Yetter, but, on the other hand, the presumption would be a violent one that he was acting as the agent of the mortgagors, from the manner in which he went there. By the court: We will overrule the objection and hear the evidence ; we will be able to draw our inferences after we hear it all.5 t0 10 Q. Now, Charles, what was it that Yetter asked your grandmother to do ? A. Why, he asked her to sign it. Q. Then what did your grandfather say to her ? A. He told her. Q. Do you remember what he said to her ? A. He told her that Yetter said she should sign the paper. Q. Did he say that in German or not ? A. German; she can’t understand any English, hardly, at all. Q. It was after that then that she signed it? A. Yes, sir. Other testimony of this witness is considered in the Opinion of the Court. The defendants then put in evidence deed from Stephen Baldy and wife to Abigail Weaver, dated March 30, 1867, for the land embraced in the mortgage, and followed by calling W. L. Eyerly, one of defendants’ counsel, who testified: I knew Clewell in his lifetime, had conversation with him in relation to this mortgage debt here, did business for him. I don’t recollect the day, but I recollect we talked about it. He was desirous of collecting the money; and, if my recollection is correct, and I think it is, he told me that the amount of money owing on this was not a debt of Mrs. Weaver but of Fayen; and then he went on to explain it; he said that he loaned Fayen Weaver some money on promissory notes, and wanted to secure them, and had this mortgage executed to secure those notes; told me so possibly two years before he died, on several occasions. I know that to be the fact, that Fayen Weaver was indebted to him, Clewell.18 The ease being closed on the evidence, the plaintiff presented for instruction the following points : 1. That the evidence of Charles Weaver is not sufficient to impeach the certificate of Lewis Yetter, a notary public, showing the acknowledgment to be in due form of law.19 2. That, there being no evidence in the case that Joseph Clewell, the mortgagee, knew of the alleged fraud practiced on Abigail Weaver, one of the mortgagors, at the time the mortgage was given, judgment should be directed to be entered for the plaintiff.30 3. That under all the evidence in the case the plaintiff is entitled to recover.31 On July 10, 1885, the court, Elwell, P. J., filed his decision, which after stating the caption of the proceeding, the plea, and the submission, proceeded: This cause came on for trial before the president judge May 20, 1885, where the evidence herewith filed was given from which the following is found as the facts in the case : The suit is a scire facias upon a mortgage dated February 13,1878, executed by Jacob Weaver and Abigail, his wife, upon one acre of land in Catawissa township in Columbia county, to secure the payment of five hundred dollars described as the real debt, with interest, on February 13, 1879. The scire facias was issued on June 13, 1883. It appears by mortgage book vol. 9, from the recorder’s office of Columbia county, on page 620, etc., that the mortgage is there recorded purporting to have been executed and duly acknowledged by Jacob Weaver and Abigail, his wife, upon the lands, for the consideration and as security, and payable, as set forth in the scire facias ; the said mortgage having been recorded on February 16, 1878. It appears by deed of Stephen Baldy and wife to Abigail Weaver dated March 30,1867, that she was the owner of the land described in the mortgage in her own right. It appears by the recitals in the mortgage, or rather it is recited therein, that the mortgage was given to secure the payment of a bond of the said Abigail for $1,000, bearing even date with the mortgage for real debt $500, and payable as hereinbefore stated. The certificate of the acknowledgment of the mortgage was signed by Lewis Yetter, a notary public,' and certified with his official seal, and is as follows : “ Be it remembered that on the 13th day of February, 1878, personally appeared Abigail Weaver and Jacob Weaver, her husband, who I am satisfied are the grant<*rs mentioned in the foregoing deed or conveyance, and I having first made known the contents thereof, they acknowledged that they signed, sealed and delivered the same as their voluntary act and deed; and she, the said Abigail Weaver, wife of said Jacob Weaver, being of full age, on a private examination apart from her husband, before me acknowledged that she signed, sealed and delivered the same as her voluntary act and deed, freely without any fear, threat or compulsion of her said husband. All of which is certified. Lewis Yettek, N. P. [official seal.] ” With the foregoing, and the admission that Joseph Clewell, the mortgagee, died before November 10,1882, and that letters of administration were on that day granted to James Lewars, the plaintiff here, the testimony on his behalf in chief was closed. On the part of the defendants, it was shown, as before stated, that the land described in the mortgage was conveyed to Abigail Weaver in 1867. It was testified by Charles Weaver, a grandson of Jacob and Abigail Weaver, now sixteen years old, a bright, intelligent and apparently truthful young man, that he was present when the mortgage was signed and heard what passed between the parties there present, in reference to the execution of the mortgage. In accordance with his testimony and reasonable inferences from the facts stated, it is found that the facts were as follows: FINDINGS OF FACT. [On February 13,1878, Lewis Yetter, a scrivener and notary public, was employed by Joseph Clewell to obtain a mortgage from Jacob Weaver and Abigail, his wife, on property of the wife, for the sum of five hundred dollars.] 9 On that day, Mr. Yetter and Fayen Weaver went from Catawissa by the cars to Glen City, a distance of a few miles, to the residence of Jacob Weaver and wife. They arrived there in the forenoon. Jacob Weaver was not at home; Fayen Weaver, the son, went for him. He came, and Mr. Yetter had the papers on the table. Mr. Yetter said to Jacob Weaver that he wanted him to sign the papers, that the other papers had been lost and they wanted new ones. The papers said to have been lost were not described or mentionecl. Jacob Weaver then signed the mortgage in question. Mrs. Weaver could* not read, nor speak, nor understand English. She and her husband and the witness Charles Weaver are German. Mr. Yetter could not speak or understand the German language. He communicated with Mrs. Weaver through her husband, who could understand English and speak the German language. After Jacob Weaver had signed, the scrivener asked Mrs. Weaver to sign. She could not understand him, and then the husband and son told her in Dutch. The paper was not read to her. She asked what it was. [The transaction as detailed by the witness in reference to the signing by Abigail Weaver and what occurred before and immediately after she signed was as follows: “Mr. Yetter put the mortgage on the table. My grandfather brought pen and ink. Mr. Yetter told him to. Grandmother was standing in the room. I was standing up when they walked up to the table. I went to see what they were doing. They were talking, Yetter told grandfather to sign. Spoke more words after; just can’t tell you what all. I remember what I have told. I couldn’t tell just the words Yetter used. He sat down :and wrote on that paper, and told grandfather that there ■other paper what Fayen Weaver had was lost and they was to make a new one and now he should sign this, and my grandfather wanted to know what for a paper, and they told him and then he signed it. And then Lewis Yetter told my grandmother to sign it and she couldn’t understand him, and he told my grandfather to tell it. And he told her they were making a new paper, that that other paper had got lost, and she should set down and sign it. She wanted to know whether it would make her any trouble, and they told her no. She sat down and signed. Yetter told grandfather to tell grandmother it wan’t any trouble, it was just like that there other paper they were talking about, and they was making a new one now that got lost; I don’t know what kind of paper, then she signed it.”] 18 From the time of signing the mortgage by Jacob Weaver and his wife, to the time that Lewis Yetter left the house, Jacob Weaver was all the time in the same room where Yetter, Mrs. Weaver, the witness and Fayen Weaver were. When the paper was signed, Mr. Yetter put it in his pocket and went out, and he and Fayen Weaver took the next train for their home in Catawissa. It is found as a fact that Lewis Yetter could not, without the agency of an interpreter, interrogate Mrs. Weaver as to whether she acknowledged that she signed, sealed and delivered the deed, as her voluntary act and deed freely, without fear, threat or compulsion of her husband. Nor could she read the acknowledgment which he wrote. It appears that the husband was the interpreter for the scrivener, as far as there was communication between him, the scrivener, and Mrs. Weaver. All that was said and done in respect to the signing and acknowledging of the instrument, was said and done in the presence of the husband of Mrs. Weaver. In the course of the trial, Charles Weaver being upon the stand, counsel for the defendants proposed to ask him this question: “What did Jacob Weaver say to his wife in the presence of Yetter about her signing the paper; to be followed by inquiry whether what Weaver said to Abigail was what Yetter said to him about having her sign it ? ” To which the counsel for the plaintiff objected because Clewell, the mortgagee, was not present, and because it was irrelevant and incompetent. The objection was overruled, the evidence admitted, and at request of the counsel for the plaintiff this bill is sealed. Wm. Elwell, P. J. [seal.] In immediate reply to the question, the witness said: “Yetter asked her to sign; grandfather told her what Yetter said, that Yetter said she should sign the paper, told her in German, she can’t understand any English hardly at all; then after that she signed.” The witness also testified “ that after his grandfather signed, they wanted grandmother to sign, she wanted to know what it was, they told her it wan’t anything to hurt anything, she should not be troubled about that, it would not be of any account; she could not understand and. then my father and grandfather told her in Dutch.” The testimony in full is hereto appended. Wm. L. Eyerly, Esq., one of the counsel for the defendants, was called as a witness for the defendants and testified as to what Joseph Clewell told him in respect to the debt secured by the mortgage, who it was that owed. But as Mr. Eyerly was attorney for Mr. Clewell and transacted his business generally, and as the conversations about that matter were frequent between them, in the office of the attorney, and as the talk was about collecting this debt, although he (the mortgagee) did not direct suit to be brought, I am of opinion that the communication was a privileged one and therefore strike out the evidence and do not consider it in rendering judgment in the case.18 Abigail Weaver was called by the defendants as a witness to prove that she cannot read English. Objected to by counsel for plaintiff and evidence rejected. Jacob Weaver was also called to prove what occurred at the execution of the mortgage. Witness objected to as incompetent. The court held, that as the mortgagee was dead the witness was incompetent under the act of 1869 to prove that the mortgage was not read, to prove that the wife could not read, nor that she was deceived by misrepresentations, nor that she was not examined in taking the acknowledgment separate and apart from her husband and sustained the objection. Counsel for defendants except and this bill is sealed at their request. War. Elwell, P. J. [seal.] The evidence in the case is herewith filed and made part of the record. Wm. Elwell, P. J. CONCLUSIONS OF LAW. [It does not appear by the evidence, otherwise than by the recital in the mortgage, that it was given to secure payment of a bond of Abigail bearing even date therewith, who owed the debt to Joseph Clewell, the mortgagee. Nor does it appear that the other paper that was said to be lost, the paper that Fayen Weaver had, was a mortgage which had been duly executed and acknowledged by Mrs. Weaver. In the absence of evidence that such was the fact, no presumption arises that the lost paper was a duly acknowledged mortgage of the land described in the mortgage in suit.] 13 If Mrs. Weaver had signed and properly acknowledged the mortgage in suit, it would have been no .defence that it was not read to her. But as she could not read English nor understand it when spoken, except very imperfectly, she was entitled to a truthful answer to her inquiry what the paper was, that she was requested to sign. The reply made to her by her husband at the instance of the scrivener in language which she understood, that it was nothing that would do her any hurt or give her any trouble, was a misrepresentation and a fraud upon her, whether so intended or not. If it had been intended that she should fully understand the nature of the act she was requested to do, the answer most natural would have been, “This is a mortgage for five hundred dollars to Joseph Clewell on your lot.” Instead of that, she is informed by those in whom she had confidence, at the request of the person who was acting in the interest of the mortgagee, in substance that the act which she was requested to do, was a mere formal matter that would not affect her interests. This being a false representation in respect to a material matter, the effect of which was to induce Mi's. Weaver to sign the paper and to mislead her to her prejudice, it vitiated the contract and operates as a defence to any action for a breach of the covenants in the deed: Kerr on Fraud and Mistake, 53. Mundorff v. Wickersham, 63 Pa. 87; Cridge v. Hare, 98 Pa. 561. A principal is chargeable with the representations of his agent, when such representations were among the inducements which led to the contract which the principal seeks to enforce: Wharton on Agency, § 158. [Although there is no direct evidence that the mortgagee employed the scrivener who took the acknowledgment, to obtain the mortgage for him, the fact that he did so is fairly presumable from the circumstances. The conclusion is irresistible that the mortgagee informed the scrivener what amount he desired him to obtain a mortgage for, from Mrs. Weaver on her separate property. If he did not employ him to transact the business as his agent, he is nevertheless bound by what he did. He cannot reap the benefit of a contract made in his behalf, procured or induced by material misrepresentations, made by a person apparently authorized to speak and act for him in the transaction of the business. It is not important to consider whether a mortgage of a married woman, fairly obtained and duly acknowledged, given for anything but the debt of her husband, for purchase money of property, the improvement of her estate, or for necessaries for herself and family, is a valid instrument, for the reason that there is no evidence what the mortgage was given for, except that a bond of Mrs. Weaver, bearing even date with the mortgage, is recited as the consideration of. the deed. The bond was void, it does not appear that she was otherwise indebted to Joseph Clewell. It does not appear that her husband was indebted, nor that she gave it as collateral security for any debt or undertaking of any other person; nor, in fact, for any other matter in respect to which she was competent to contract.] 13 [No presumption arises that the mortgage was intended as a security for the performance of any contract in respect to which a married woman may bind her separate estate by a mortgage or other lien. But if any such presumption can be properly made, the mortgage is invalid, unless acknowledged in the manner provided by law. The certificate is full and sets forth all that the law requires, to wit: the examination apart from the husband, the making known of the contents and the declaration of voluntary execution and delivery. But the parol evidence shows that the contents were not made known to Mrs. Weaver, but were withheld from her; that her husband was actually present during the whole time the notary public was in the presence of the wife ; that she made no such declaration in respect to her voluntarily executing and delivering the instrument, as that contained in the certificate. She could not understand him, and he did not communicate with her, except through her husband. In order to be valid, the acknowledgment of the wife must be taken out of the presence of the husband, where he cannot see or hear any indication of unwillingness on her part to execute or acknowledge the instrument, otherwise she has no opportunity to escape the coercion: McCandless v. Engle, 51 Pa. 310. When the certificate is overthrown by evidence that the examination was in the presence of the husband, that the wife was not properly informed as to the nature of the transaction, or that she was under the influence of fraud or coercion, it goes for nothing: Louden v. Blythe, 27 Pa. 22. In the case last cited, it was held that the certificate is conclusive in favor of one who accepted it in good faith and paid his money without knowing or having any reason to suspect that it was untrue. That principle is invoked by the plaintiff here. But I am of the opinion that the case of the mortgagee is not brought within it by any evidence. It does not appear that Joseph Clewell parted with either money or property on the faith of this mortgage. If it was for a debt of the husband, he suffered nothing by receiving the mortgage, for the debt still remained against the husband. If the mortgage was for the debt of a son of Mrs. Weaver, of which there is no competent evidence, the same remark is applicable. But we need not speculate as to any claim against Mrs. Weaver in law or equity which entitles the plaintiff to allege that Mrs. Weaver is estopped from proving the facts which defeat and annul the force and effect of the certificate. It follows from these views that both on the grounds of misrepresentation in regard to the contents of the mortgage, whereby Mrs. Weaver was induced to sign it, and because it was not acknowledged, as required by the statute to affect the estate of a married woman, the plaintiff is not entitled to recover against her or her land any part of the amount claimed to be due on the mortgage, and that judgment should be entered in her favor. Jacob Weaver having executed, acknowledged and delivered the mortgage, his estate, whatever it may be, in the land described, is bound by the lien of the mortgage, and therefore judgment must be entered against him for the sum of five hundred dollars with interest from the date of the mortgage, to wit February 13, 1878.]14 [And now, July 10, 1885, it is adjudged that Abigail Weaver is entitled to have judgment rendered in her favor. And it is further adjudged that the plaintiff is entitled to have judgment against Jacob Weaver for the sum of five hundred dollars and the interest added thereto from February 13, 1878, to the day of entering the judgment. And it is further ordered that if no exceptions are filed within thirty days after notice, as required by law, judgment shall be entered in accordance with this adjudication.]16 I decline to affirm the points presented by counsel for the plaintiff and find the facts and law as above stated. The evidence taken on the trial to be written out, filed and made part of the record. On July 13, 1885, the plaintiff excepted to the foregoing decision: Because the court, in said decision, 1-3. Has not stated, separately and distinctly, (1) the facts found; (2) the conclusions of law; (3) the answers to the 1st, 2d, and 3d points submitted by the plaintiff. 110 3 4-6. And has not found as matter of law, (4) as requested in plaintiff’s 1st point; (5) as requested in plaintiff’s 2d point; (6) as requested in plaintiff’s 3d point. 6 t0 8 7. And lias found without any evidence as matter of fact, as in [ ] 9 8, 9. And admitted the defendant's offer. ® 10 10. And, instead of finding the facts separately and distinct- • ly in reference to the signing of the mortgage in suit by Abigail Weaver, and what occurred before and immediately after she signed, has stated only the testimony of Charles Weaver, as in [ ] 13 11. And, under the head of Conclusions of Law, has not stated separately and distinctly the conclusions, but made a mixed statement of findings of fact and conclusions of law, and erred in such conclusions of law, as in the portions of the finding in [ ] 13 12. And erred in the conclusions of law, embraced in [ ]14 18. And erred in not stating, separately and distinctly, the facts found and the conclusions of law resulting therefrom, in respect to whether Joseph Clewell accepted the mortgage in suit in. good faith, and paid his money without knowing or having any reason to suspect that it was procured by the supposed misrepresentation.15 14. And erred in entering judgment as in [ ] 16 15. And erred in not directing judgment to be entered in favor of the plaintiff against the defendants.17 On December 6,1886, all the foregoing exceptions were dismissed and it was ordered that judgment be entered in accordance with said adjudication. Judgment having been entered as directed, the plaintiff took this writ assigning as error 1-3. The-overruling of plaintiff’s exceptions. 140 3 4, 5. The admission of defendants’ offers. 4 5 6-8. The dismissal of plaintiff’s 4th, 5th, 6th exceptions.6 t0 8 9-17. The overruling of plaintiff’s exceptions 9 t0-17 18. The striking out of the testimony of Mr, W. L. Eyerly, called by defendants, after the evidence was closed and submitted and without motion of request on part of plaintiff.18 19-21. The answers to the plaintiff’s points.19 40 31
121 Pa. 293Appeal of Bloomsburg School Directors (1888)
certiorari, etc., to the court of quarter sessions of COLUMBIA COUNTY. No. 222 January Term 1888, Sup.
121 Pa. 302Shea v. Shea (1888)
FROM THE DECREE OE THE COURT OE COMMON PLEAS OE LUZERNE COUNTY. No. 200 January Term 1888, Sup. Ct.; court below, No. 1 January Term 1886, C. P. On November 80, 1885, Susan Sbea, filed a bill in equity against Patrick Sbea, Ellen Smoulter and John Smoulter, her husband, and Mary A. Smith and Joseph Smith, her husband. The bill averred that the plaintiff was the widow of Thomas Shea, deceased, to whom she had been married on September 27, 1884, and paragraph 3 was as follows: 3. That after she had agreed to marry him and on the day of tbe wedding be proposed to ber to sign a paper, as be said, to satisfy bis children; that she is illiterate, not able to read or write, and, under the representations of said Shea, she was induced to make her mark to a paper which she has not seen since that time and has no means of producing, but which she now believes contained an agreement by her with said Shea for the payment to her of a monthly sum after his death; that she then would not have signed the said paper had she understood its contents. The bill then proceeded to sot out, that, after tbe marriage, the said Thomas Shea had abused and ill-treated the plaintiff and finally had driven her from his house, with threats that he would take her life if she remained; that, thereupon, the plaintiff had instituted proceedings in the Court of Quarter Sessions to compel her husband to support her, and he had been sentenced by the court to pay her an allowance of $40 per month beginning May 8, 1885, none of which had ever been paid; that, pending the said proceedings, the said Thomas Shea had conveyed all his real estate, fully described in the bill, to the defendants, each conveyance in consideration of $1 and natural love and affection, and had also transferred to them by gift all his personal estate; that said Thomas Shea had died on October 12, 1885, intestate, and without making any provision for the plaintiff, and letters of administration had been granted to her, but she had been unable to obtain anything belonging to his estate; that on November 21, 1885, the plaintiff had made demand of defendants for the assignment of her dower in the lands described and for the delivery to her of the said personal estate, which demand had been refused; praying for a decree, (1) assigning her dower and, (2) for discovery. The 3d section of the answers, a separate one being filed by Patrick Shea, inter alia averred, in response to the 3d section of the bill, that “the plaintiff previous to her marriage with said Thomas Shea, on September 27,1884, knowingly and after a careful consideration of its contents, did enter into an ante-nuptial contract or agreement with the said Thomas Shea, founded upon a sufficient consideration, duly signed and sealed by the parties thereto,” and made a part of the bill, whereby the plaintiff relinquished all right of dower and all interest of whatsoever kind in the estate of said Thomas Shea, to which she might become entitled by reason of the marriage, and whereby it was further agreed that the said Thomas Shea should retain the entire control and exclusive ownership of all his estate and the right to dispose of the same at his option; and it was denied that the plaintiff would not have signed the said agreement had she fully understood its contents, but, on the contrary, the plaintiff had willingly executed the same after being fully informed of its nature and contents, and after a .careful consideration by her of its provisions and their effect. The cause having been put at issue by replication, was referred to Mr. Gc. It. Bedford, as examiner and master, who heard the testimony and on July 20, 1886, submitted his report to the counsel concerned for examination and exception. Thereupon Mr. Me Oartney, of counsel for the defendants, filed an affidavit that he was absent when Mr. James L. Lenahan was called and examined before the examiner and he had assumed (hat the witness would testify that, before the ante-nuptial contract was drawn, he had fully explained its proposed tenor to Mrs. Shea, and that, after it was drawn and before she signed it, he had read it to her and had fully explained all its provisions to her, and that she signed it thoroughly understanding and comprehending its effect; that the affiant did not know that Mr. Lenahan had not so testified until after the taking of the testimony had closed; that the affiant did not ask the examiner to re-open the case and allow the facts referred to to be shown, because he doubted the authority of the examiner so to do, and because he assumed as matter of law that when Mrs. Shea signed the contract she must be presumed to know and be acquainted with its contents; that on further investigation the affiant was convinced that in so acting he had committed an error which might work great injustice to his clients, inasmuch as Mr. Lenahan would testify to the facts stated. The affidavit of Mr. James L. Lenahan was also filed, setting forth the facts to which he would testify in proof that the contract had been read to Mrs. Shea, and that she was fully informed of and fully comprehended its provisions and their effect when she signed it. Upon these affidavits, application was made, to re-open the taking of testimony, to permit the testimony of Mr. Lenahan to be taken. On August 14, 1886, the master filed his report, the exceptions thereto, and his supplementary report disposing of the same. The report was as follows : In ascertaining the facts the master has directed his inquiry to matters preceding the marriage, and as the result thereof he reports the following findings of fact. 1. Susan Shea, the plaintiff, formerly Susan Murphy, being at the time a widow of mature years, was engaged in business on her own account, in a small way, but yielding sufficient for her support. 2. During August, 1884, Thomas Shea, then a widower of some seventy years of age, and the father of the principal defendants in this case, from time to time visited her and urged her to marry him, promising her a comfortable home and an easier life, with certain incidental advantages. His offer of marriage was finally accepted and the day agreed upon for the wedding. 3. At that time, Thomas Shea was worth some $75,000, in personal and real estate, and on September 25, 1884, called on the plaintiff and in a general way stated that he was worth $75,000 or $80,000, that he was unwilling to give any woman one third of it at his time of life, but his intended wife would in case she survived him have a good home, and he would agree in addition to leave her $30 per month; he therefore proposed that they go to a lawyer and have a paper to that effect drawn up. The plaintiff declined to agree to this arrangement in quite indignant terms, remarking that she didn’t hold herself so cheap, or words to that effect. Thereupon the parties immediately separated, Mr. Shea going to his home in Nanticoke. 4. Two days later, being September 27, 1884, said Thomas Shea and the plaintiff were duly married; but, an hour or so prior thereto, and amid preparations for going to the church to have the wedding ceremony performed, James L. Lenahan, Esq., an attorney of this bar, appeared at the house of the plaintiff, having already drawn up the ante-nuptial agreement mentioned in the bill and the several answers, and printed as an appendix to the latter, and which recites the intended marriage between the said Thomas Shea and Susan Murphy, and an agreement that, from and after the solemnization of said marriage, the ownership and control of all the property belonging to Thomas Shea should continue and remain his exclusive property, and to be disposed of by him without the assent or approbation of the said Susan Murphy, and she relinquishing all right of dower and all interest of every kind whatever in his estate : in consideration whereof said Thomas Shea covenanted to pay or cause to be paid to the said Susan Murphy, the sum of $30 per month from the day of his death, so long as she should survive him and remain his widow, the same to be secured on his real estate. This paper was signed by the parties with their respective marks, and was prepared at the instance and in behalf of Thomas Shea. While it does not appear that he directly employed Mr. Lenahan, yet it is clear that the latter was not employed by the plaintiff, and under the circumstances must be held to have been acting for Mr. Shea in the business. 5. The plaintiff is unable to read or write, and it does not appear that the agreement was read over or explained to her, nor does it appear that the plaintiff asked to have the same read, or made any inquiries in relation thereto. It is testified by one witness for the plaintiff that, the paper being the subject of conversation, Mr. Shea said that “ he did not want his children to cheat Mrs. Murphy out of anything after he died; that he wanted her to have a good living.” It is urged that this testimony, coupled with the fact that the plaintiff had previously declined to sign such a paper is sufficient to warrant the further finding of fact: that plaintiff .was induced to sign the paper by the representation of Thomas Shea, that it was to secure her against being wronged by his children. It is possible that the testimony quoted and the circumstances attending plaintiff’s refusal, should be regarded as the equivalent of two witnesses requisite to warrant the finding of fact asked for, as against the denials of the answer; but, as the disposition of the case is hereafter put on other grounds, the master does not deem it necessary to decide the question. 6. In February, 1885, plaintiff caused the arrest of Thomas Shea for desertion and failure to furnish her support, of which he was subsequently convicted and sentenced to pay her $40 per month; but meanwhile, and during the pendency of said proceeding, he conveyed and transferred all his real and personal estate to his children, as stated in the bill, in consideration of their agreement to pay $35 per month each for his support during life, but whether paid or not does not appear. The real purpose of said conveyance was, as the master concludes, to defeat the plaintiff in her attempt to fix upon Thomas Shea the responsibility for her support, and even ignored her right to have the $30 per month named in the ante-nuptial agreement secured on his real estate. 7. Thomas Shea died on October 12, 1885, having made no further provision for his wife. Upon the facts as found, the master, discussing Greenfield’s Est., 14 Pa. 489; Penn. R. Co. v. Shay, 82 Pa. 198 ; Geiger v. Welsh, 1 R. 349; Sanders v. Wagonseller, 19 Pa. 248; Johnston v. Harvy, 2 P. & W. 82, concluded as matter of law that the ante-nuptial agreement was not binding upon the plaintiff, and was to be disregarded, and further that the conveyances to the children were voluntary and subject to the plaintiff’s rights as widow, recommending a decree granting the first prayer of the bill at the costs of the defendants. The defendants’ exceptions were, to wit: 1. To the 5th finding of fact, to wit: that it does not appear that the ante-nuptial contract was read over and explained to the plaintiff. The 3d section of the defendants’ answers are responsive to the averments of the bill on this subject; and its effect has not been overcome, nor has it been answered by any testimony offered by the plaintiff or to be found anywhere in the ease.1 2. To the 6th finding of fact, to wit: that the conveyances by Thomas Shea to his children were for the purpose of defeating the plaintiff’s right to support, and to ignore her rights under the ante-nuptial contract.® 3. To the conclusion of law that the ante-nuptial agreement is not binding upon the plaintiff, and is therefore to be disregarded.3 4. To the conclusion of law that the conveyances to the children are voluntary, and subject to the plaintiff’s rights as widow.4 5. To the report, as unsupported by the evidence in the case and as contrary to the evidence.5 6. To the decree recommended.6 7. To the refusal to allow James L. Lenahan to testify in the case according to the written application of the defendants, notwithstanding the taking of the testimony by the examiner had closed.7 The master’s report on the exceptions was as follows : Having considered the several exceptions filed by the plaintiff and the defendants, I conclude not to change my report. In reference to the defendants’ 7th exception it is proper to briefly state the facts. After my report was made up, and before the exceptions were drawn up, the counsel for defendants made application to me to take further testimony as examiner, and to recall James L. Lenahan, Esq., basing such application on the affidavits of said Lenahan and Gen. McCartney, herewith submitted. My functions as examiner having closed whep the testimony was closed, I had and have, as such, no power to reopen the case and recall witnesses, or compel their attendance or the attendance of parties. I am equally clear that as master I have no power to send the case back to the examiner. This power is lodged only in the court, which has full control of the proceeding. I therefore declined to consider the application, and the same is one for the court to deal with. The said exceptions having been renewed upon the filing of the reports, after argument, the court, Rice, P. J., on March 7, 1887, filed the following opinion and order: The prominent question raised by the exceptions is as to the burden of proof. We agree with the defendants’ counsel, that, in so far as the bill alleges actual fraud as a ground of relief against the contract in question, the burden of proof rests on the plaintiff, and, the answer being responsive, it was incumbent on her to establish her allegations by the testimony of two witnesses, or of one witness and corroborating circumstances. On the other hand, the rule as to the burden of proof is the same at law as in equity; in both, the party maintaining the affirmative of the issue has it cast upon him. And, though the answer is responsive in form, yet if it involves also affirmatively the assertion of a right in opposition to the plaintiff’s demand, it is but mere pleading and is not sufficient to establish the right so asserted: 3 Greenl. Ev. § 287; 2 Daniel Ch. 841. If, therefore, it can be shown that the allegations of the answers are affirmative in their nature, — if, though there be not sufficient proof of actual fraud and misrepresentation, yet, from the nature of the contract, the facts alleged are essential to its validity as a bar to the relief prayed for, and are not to be presumed, the answer being replied to is of no avail in respect to such allegations, and the defendants were as much bound to establish them by independent testimony as the plaintiff was to sustain the essential averments of the bill. Whenever two persons stand in such a relation that, while it continues, confidence is necessarily imposed by one, and the influence which necessarily grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed. Not only so, but there can be no contract between the two, except after the fullest and fairest explanation and communication of every particular resting in the breast of the one who seeks to establish the contract with the person so trusting him: Bispham’s Eq., § 232. These principles apply to a variety of relations, such as those of guardian and ward, attorney and client, trustee and cestui que trust, principal and agent, and husband and wife. They also apply to the relation of persons betrothed, and the rule that such persons owe to each other the greatest good faith may be invoked to set aside secret ante-nuptial settlements in fraud of the marital rights of either, as well as ante-nuptial contracts between the parties, where there is concealment of circumstances materially bearing on the contemplated agreement: Kline v. Kline, 57 Pa. 120. To the same effect are Kline’s Est., 64 Pa. 122; Tiernan v. Binns, 92 Pa. 248; Bierer’s Appeal, 92 Pa. 265. We agree that such contracts are not to be regarded with disfavor. They come in conflict with .no policy of the law and are not to be viewed with the same degree of suspicion as voluntary donations: Tiernan v. Binns, supra; Ludwig’s Appeal, 101 Pa. 535. As a general rule the scrutiny in cases of gifts is more severe and searching than in those of contracts: Bispham’s Eq. § 231; and, -in contracts of this nature, as already suggested, it may perhaps be presumed in the first instance that full disclosures were made. But this is not the ordinary presumption in favor of the validity of ■ contracts between persons dealing at arms’ length; for, as a general rule, where the relations of the parties are such as imply a condition of superiority held by one of the parties over the other, there, in every transaction between them by which the superior party obtains a possible benefit, equity raises a presumption against its validity, and casts upon that party the burden of proving affirmatively its compliance with equitable requisites, and of thereby overcoming the presumption: Pomeroy’s Eq. J., § 956, 957 ; 2 Daniel Ch., 850. Owing to the near connection between the parties, in many relations, the transaction in itself is considered so suspicious as to cast the burden of proof upon the person who seeks to support it, to show that he has taken no advantage of his influence or knowledge, and that the arrangement is fair and conscientious: ” Darlington’s Appeal, 86 Pa. 512. Such is decided to be the case where the provisions secured for the wife in an ante-nuptial contract are unreasonably disproportionate to the means of the intended husband: Kline’s Est., supra; Bierer’s Appeal, supra. If, therefore, there is ever a prima facie presumption of his good faith and of her full knowledge, and independent consent and action, it .seems to ns, that, in order to harmonize this class of cases with the general principles of law, as to contracts between persons occupying fiduciary relations, the presumption must be regarded as one of fact arising from the adequacy of the provision made for her, as compared with the intended husband’s means, rather than one of law arising from her execution of the instrument. At all events, the presumption, if there be one, in favor of the validity of the instrument may be overcome, and the burden of proof cast on the defendant, by circumstances which would be entirely inadequate to avoid an ordinary contract on the ground of actual and intended fraud. Here, it is true, any presumption of a designed concealment by Thomas'Shea of his means is rebutted by the testimony. But full disclosures by him, in this regard, did not constitute his whole duty. In view of the circumstance under which this paper was executed, of the plaintiff’s inability to read or write, and of the fact that she had no legal adviser, we think it was his duty, in addition, to see that she knew the nature and effect of the action she was about to take. When we consider further that but a short time before she had indignantly refused to enter into a contract upon terms equally if not more favorable than those contained in this paper, and that there is no independent testimony that she had in the meantime changed her mind, we do not think it would be in accordance with the principles we have been discussing, to presume that the contents of the instrument were fully made known to her, that she understood its effect, and that she was under no constraint when she executed it. We think the learned master could noL’ under the evidence before him, do otherwise than conclude “ that the validity of the ante-nuptial agreement between Thomas Shea and this plaintiff cannot be sustained, in the absence of proof that she knew the actual contents of the paper, the effect of which would be, if enforced, to accomplish precisely what two days before she had refused to assent to.” Are there such affirmative proofs ? Rose Virtue says: “ On the afternoon before they went to the church Mr. James L. Lenahan came to Mrs. Murphy’s house and was upstairs in the sitting-room with her and Mr. Shea. 1 heard them talking about some paper that Mr. Lenahan was to write and Mrs. Murphy to sign. Mr. Shea said he did not want his children to cheat Mrs. Murphy out of anything after he died; that he wanted her to have a good living. There was no other lawyer there but Mr. Lenahan. Shortly after he left they went to the church.” This is the only evidence of what took place at the time the paper was executed; and, while it tends to show that the paper was not prepared when Mr. Lenahan appeared at the plaintiff’s house, it does not, in our opinion, show affirmatively that its contents were made known, and its real purpose and effect fully explained to her. On the other hand, we do not think it would be safe to infer from the single remark shown to have been made by Thomas Shea that he actually misrepresented the purpose of the paper. After the evidence was closed, the case argued before the master, and his report made up, the defendants’ counsel made a motion based on affidavits, first to the master and afterwards to the court, to be permitted to recall James L. Lenahan to give further testimony. But in no view of the case can the proposed evidence be regarded as newly discovered. It is not alleged that the counsel who was present and cross-examined Mr. Lenahan did not know of the facts which could be proved by him; on the contrary, the fair inference from all the cireumstances is, that he did. Neither can the defendants allege surprise as a ground for re-opening the evidence, for at the time the case was argued before the master, the fact that Mr. Lenahan had not been asked to testify to the facts alleged in his affidavit, as well as the materiality of those facts, must have been known to them. The plaintiff’s counsel asserts, and this is not controverted by the defendants’ affidavits, that the point upon which the master ruled the case was then fairly raised and urged in the argument. ■ If the defendants had up to that time been misled as to the grounds upon which the plaintiff based her claim for a decree, erroneously supposing that she relied solely upon the evidence of actual fraud and misrepresentations, they then had notice that she further claimed, that the onus probandi rested on them, and that she was entitled to a decree, notwithstanding the ante-nuptial contract, because they had not proved affirmatively that its contents had been fully made known and explained to her. Then, if not before, it became incumbent on them to decide whether they would rest the case on the evidence already in, or move to have permission to take this additional testimony. They could not, knowing of the evidence and its materiality, hold it in reserve until after the master had made up his report, without waiving their right to produce it. To hold otherwise would be to establish a rule of practice extremely dangerous, contrary to all principle, and one which we have been able to find no precedent to justify or even excuse: See Nece v. Pruden, 8 Phila. 350; Freeman v. Stine, 13 Phila. 28. And now, March 7,1887, the exceptions to the master’s report are overruled and the report is confirmed. The counsel for the plaintiff is requested to draw a formal decree in accordance with the recommendations of the master and submit it for approval as provided in § 79, Rule XIY. Under a formal decree drawn as ordered and signed, that the plaintiff was dowable and entitled to dower in and out of the lands described in the bill, and that she should have assignment thereof, etc., the master, to whom said assignment was referred, proceeded after testimony taken, to assign and set ont particular lands and tenements, as and for the plaintiff’s dower, which should be of the annual rental value equal to one third of the rental value of all lands described in the bill, and to take an account of the rents and profits of said lands, since the death of Thomas Shea, received by the defendants, or for their use, one third of which should be paid by the defendants to the plaintiff, etc.; and, on the coming in of his "report the same was confirmed, and a final decree signed in accordance with its recommendations. Thereupon the defendants, excepting, took this appeal, specifying that the court erred, inter alia: 1-7. In dismissing the defendants’ exceptions.110 7 12. In holding that the validity of the ante-nuptial contract could not be sustained in the absence of proof that Mrs. Shea knew the actual contents of the paper. 13. In holding that the defendants were as much bound to establish the averments of the answer, by independent testimony, as the plaintiff was to sustain the essential averments of "the bill.
121 Pa. 322Doyle v. Hollenback (1888)
from the decree of the court of common pleas of LUZERNE COUNTY, IN EQUITY. No. 215 January Term 1888, Sup. Ct.; court below, No. 3 •January Term 18’85, C. P. in Equity. In the latter part of 1884, a bill in equity was filed by Jobn T. Doyle against Jobn Welles Hollenback and Edwin S. Osborne, which set forth in substance : ’ That the plaintiff was the surviving husband of Catherine E. Doyle, formerly Hollenback, who died without issue on February 14, 1881, leaving a will, duly admitted to probate, wherein her estate was passed to the plaintiff; that the testatrix was a daughter of John Matthias Hollenback, deceased, and that she ■left surviving her Emily A. Hollenback, a sister of the whole blood, who has since intermarried with the plaintiff. That in the year 1872, John M. Hollenback, claiming to be the owner thereof in fee simple, brought an action of ejectment against John W. Hollenback, and other defendants claiming under him, to recover certain lands in the third division of certified Wilkes-Barre township, and when the cause was called for trial on May 16,1873, a compromise agreement was executed, set out at length, of which the material parts were as follows: 1. That the said plaintiff, John M. Hollenback with his wife joining therein, shall well and sufficiently release and convey unto the said defendant, John Welles Hollenback, all bis, the said plaintiff’s right, title and interest in and to all and singular the above stated lands, including therein all interest and estate which may have passed to S. P. Longstreet by virtue of the sale on the John Behee judgment, so that the said defendant, John Welles Hollenback, shall become well seized of an estate in fee simple in the said lands and every of them. 2. That the said John Welles Hollenback shall assign, transfer and convey unto Edwin S. Osborne, trustee, in fee simple and for the uses and purposes hereinafter limited and appointed, all those the two equal undivided fifths parts of all and in all those parts and portions of the lots Nos. 16, 17 and 18 in the third division of the said certified township of Wilkes-Barre, lying eastwardly of the road in Plains township known as and called the Miner road, so far as the said lands now are, or will be under the provisions of this instrument held or owned by said John Welles Hollenback, and to be more fully described in the said deed to be by him executed: To have and to hold the same unto the said Edwin S. Osborne, trustee, and his successors and assigns, in trust as to the one equal third part of the said two fifths parts for the use of Emily A. and Catharine E., minor children of the said John M. Hollenback, the said trustee to pay over the said one third part of the said two fifths parts of the net annual income and rents arising from said lands, to the guardian of the said minors, during their minority, and to them in person, when and after they attain their majorities ; and in trust, as to the remaining two thirds parts of said two fifths parts, to pay over the net annual income, rents and profits arising therefrom to the said John M. Hollenback, for the support and maintenance of himself and family. ■By other sections of tins agreement it was provided that as said lands were under lease for coal mining purposes to the Del. & H. Canal Co., and the Balt. Coal & Union R. Co., John W. Hollenback was authorized to collect the rentals and should account for and pay over two equal fifths parts of the sum to said trustee, and further might sell and convey surface lots, accounting for and paying over two fifths of the proceeds thereof, less taxes, costs, necessary expenditures, etc., paying over said rentals and proceeds for the uses and purposes hereinbefore set forth. It was further averred, that afterwards, and in pursuance of the covenants to be performed by him under said agreement, John M. Hollenback procured the deed of S. P. Longstreet and wife, for their interest, and still later, together with Iris wife, conveyed to said John W. Hollenback, so that the latter became well seized of an estate in fee simple in the lands in dispute in said action, as provided in said agreement of compromise. That after the execution of the two deeds last mentioned, the said John W. Hollenback executed a deed of special warranty, purporting to be in compliance with Ms covenants in said agreement, and reciting that the same was made subject to the conditions and limitations and in pursuance of the requirements of said agreement, and conveying the two equal undivided fifths parts of the lands described in the said agreement, unto the said “Edwin S. Osborne, Ms successors and assigns,.....to have and to hold mito the said Edwin S. Osborne, his successors and assigns,” in trust as stated in said agreement; omitting, however, from the premises of said deed, the term “ mito Edwin S. Osborne, trustee, in fee simple,” and also, omitting from the habendum thereof, the term “ unto the said Edwin S. Osborne, trustee, Ms successors and assigns,” contrary to the provisions of the said compromise agreement. TMs deed, as appeared at the hearing, was dated August 30, 1873, was between John W. Hollenback, of Wilkes-Barre, of the one part, and “ Edwin S. Osborne, of the same place, of the other part,” and in consideration of one dollar paid by said Edwin S. Osborne, “ for the uses and upon the trusts hereinafter mentioned,” conveyed “ unto the said Edwin S. Osborne, his successors and assigns, tbe two equal undivided filths parts of ” the lands described therein, subject to the leasehold interest of the Del. & H. Canal Co. and the Balt. Coal & Union R. Co., with the - habendum as stated, and with a covenant of special warranty “ forever.” It was further averred in the bill that from the time of the execution of the last mentioned deed until the death of said Catherine E. Doyle, John W. Hollenback continued to receive and receipt for the coal rentals accruing from the lands conveyed, and to pay over, as he alleged, the two fifths of the same to said Edwin S. Osborne, for the uses and purposes stated in said agreement, and said Edwin S. Osborne accounted therefor, the two thirds thereof to John M. Hollenback, one sixth thereof to Emily A. Hollenback, and the remaining one sixth to Catherine E. Doyle ; and that after the death of said Catherine E. Doyle, said rentals were received and paid over in the same way, save that two fifths of the same, less one sixth of said two fifths, were paid over to said Edwin S. Osborne, who accounted therefor, the two thirds of said two fifths to John M. Hollenback, and the one sixth of said two fifths to said Emily A. Hollenback. That on November 25, 1882, in consequence of a judicial sale of the estate and title of John M. Hollenback, his interest in said lands under said agreement of compromise and conveyance became vested in John W. Hollenback, who since then had continued to receive the said rentals and pay over, as he alleged, the one sixth of the two fifths thereof to said Edwin S. Osborne, trustee, who accounted therefor to Emily A. Hollenback, now Emily A. Doyle, wife of plaintiff; and that prior and since the death of Catherine E. Doyle, the said John W. Hollenback had sold town lots from the surface of said lands, but since her death, he had refused to account for and pay over to the said trustee, for the plaintiff, or to the latter in person, any coal rentals subsequently accruing or any proceeds of surface lots sold by him, for the reason, as alleged by him, that she as cestui que trust owned only a life estate therein. The bill closed with the following averment: 19. That under the terms of the written agreement, marked Exhibit A., and the subsequent deeds from S. P. Longstreet and wife, and John Matthias Hollenback and wife, to the said John Welles Hollenback, as charged in the 7th paragraph, the said Catherine E. Hollenback and Emily A. Hollenback each became well seized in equity in fee simple, not only as she supposed but in fact, of an undivided one sixth of two equal fifths parts of the lands described in said agreement as parts of lots 16, 17 and 18, subject only to the right of the said Edwin S. Osborne, trustee, during their respective lives, to receive and pay over to them their proportion of the coal rentals and proceeds of sales of town lots arising from said lands, and each also became entitled, as she supposed and was in fact, to a conveyance from the said John Welles Hollenback to the said Edwin S. Osborne, trustee, in fee simple for the uses and purposes last aforesaid; and that as to the said Catherine E. Hollenback, the omission by the said John Welles Hollenback in the deed from him to the said Edwin S. Osborne of the terms stated in the 8th paragraph of this bill, as well as any claim of the said John Welles Hollenback that she was not entitled to an estate in fee simple as aforesaid, was wholly unwarranted and without her authority or knowledge either then or subsequently thereto, or the authority of any other person acting or presuming to act in her behalf, and such omissions by the said John Welles Hollenback, as also his subsequent repudiation of her fee simple title, coupled with his previous conduct and acts in recognition thereof, were wrong, unconscionable, and in fraud of her rights and the rights of your orator, her devisee. The prayers were, in substance: 1. .That John W. Hollenback be directed to reform his said deed by omitting from the premises thereof the words, “ unto the said Edwin S. Osborne, his successors and assigns,” and inserting in their stead the words, “ unto the said Edwin S. Osborne, trustee, in fee simple, his successors and assigns; ” and by omitting from the habendum thereof the words “ unto the said Edwin S. Osborne, his successors and assigns,” and inserting in their stead the words, “unto the said Edwin S. Osborne, trustee in fee simple, his successors and assigns.” 2. That the trustee be decreed to convey Catherine’s share to the plaintiff. 3. For an account. The material part of the separate answer of John W. Hollenback was as follows : 6. I deny the averments of the eighth section of the said bill in relation to the character of the deed executed by me in pursuance of the agreement of May 16, 1873, and the manner and date of the execution thereof. At the time of the execution of the agreement of May 16, 1873, I understood that I was giving only an equitable life estate in the said two fifths to the said John Matthias Hollenback, two thirds of which were to be paid over, by the trustee named, to him, the said John Matthias Hollenback, for the support and maintenance of himself and family, and the one third to his two daughters, Emily A., and Catherine E., (his only surviving children by his first wife,) that is, one sixth to each of their guardians during their respective minorities, and to them in person when and after they attained their respective majorities. When the conveyance, in execution on my part of that agreement came to be prepared, it was drawn so as to convey such life estate only. Insisting that this was the intention as well as the legal construction of the said agreement of May 16, 1873, and refusing to convey an estate in fee simple, I executed and delivered the deed mentioned in said section on August 30, 1873, to the said John Matthias Hollenback, who retained the same for a long period of time, (and as I am advised, submitted it to his counsel for their opinion,) and with full knowledge of the legal effect of said deed, accepted the said deed and executed and delivered to me his deed of release, dated and acknowledged October 24, 1873, and subsequently, to wit, on December 17, 1873, caused all the said instruments to be recorded. And in further an'swer I say that the said plaintiff, by bill in equity brought in this court in the name of Edwin S. Osborne, trustee as aforesaid, to No. 2 May Term, 1882, under bis oath, charged and admitted that I had refused to convey the said two equal undivided fifths parts to the said trustee in fee simple, and claiming and alleging that by the terms of the said agreement of May 10, 1873, I was only bound to convey a life estate, executed and delivered the said deed of August 30, 1873, thus limiting the estate of the said trustee to a life estate. And I am advised that the said deed of August 30,1873, fully and entirely carries out the provisions and undertakings contained in the said agreement of May 16, 1873, and that the «aid agreement stipulates and provides for an equitable life ■estate and nothing more to the said Catherine E. and Emily A., ■and that, even if this were otherwise, the said agreement was merged in the said deed of August 30, 1873, 'and the said deed must both at law and in equity be considered as conclusive evidence of the real intention of the parties as to the final consummation of the transaction. The material part of the- answer of Edwin S. Osborne was as follows: 8. After the execution of the agreement of May 16, 1873, John Welles Hollenback prepared, or had prepared by his counsel, the deed dated and executed August 30, 1873, and submitted the same to John Matthias Hollenback about that time. Some objection fvas made to this deed. Counsel were consulted and the matter examined and discussed. During this time the deed which Longstreet had executed and acknowledged in May and the deed which John Matthias Hollenback had executed and acknowledged in October (being the two deeds mentioned in paragraph seven of said bill), were retained by the said John Matthias Hollenback from the time of their respective dates and after the delivery of said deed of August 30,1873, from the said John Welles Hollenback to the said John Matthias Hollenback, until about December 16, 1873, when the said last mentioned deed was finally accepted by the said John Matthias Hollenback, acknowledged by the said John Welles Hollenback, and thereupon to wit: December 17, 1873, all of the said deeds were recorded. Reference is made in the paragraph, quo”ted from the answer of John W. Hollenback, to a bill filed to No. 2 May Term 1882, between E. S. Osborne, trustee, and John T. Doyle, devisee of Catherine E. Doyle, plaintiffs, and John W. Hollenback, defendant. In this bill it was averred: 6. That John Welles Hollenback, notwithstanding the title to the said lots of land had been fully vested in Mm by the conveyances mentioned in the foregoing fourth and fifth paragraphs of tMs bill, in accordance with the said agreement of May 16, 1873, refused to convey to your orator, in fee simple, and for the uses and purposes in the said agreement limited and appointed, all those the two equal undivided fifths parts of the said lots of land, but, claiming and alleging that, by the terms of said agreement, he was only bound to convey to your orator, for his, your orator’s cestuis que trustent, a life estate in the said lots of land, executed and delivered to your orator a deed bearing date August 30, 1873, and recorded in the proper office in Luzerne county, in Deed Book No. 173, page 41, etc., in which, instead of using, in connection with the grant, the words, “unto Edwin S. Osborne, trustee, in fee simple,” as contained in the said agreement of May 16, 1873, which imply and were intended to imply, a conveyance of an absolute estate of inheritance, he used the words, “unto the said Edwin S. Osborne, his successors and assigns,” thus limiting the quantity of estate conveyed to your orator for his cestuis que trustent, to a life estate in the said two fifths parts of the said lots of land, and retaining in himself the “fee simple” thereto. This first bill, which prayed for a reformation of the deed of August 30, 1873, “so that the said deed shall conform to said agreement of May 16,1873, and shall give effect to the intention of the parties,” was demurred to and on September 5,1882, w’as dismissed, on the ground “ that it is not averred in the bill that there was accident, mistake or fraud in the execution of the deed, or in its acceptance by the plaintiff.” Leave was given to amend the bill, but no amendment was filed, and on March 3, 1881, a petition was filed praying leave to dismiss the bill and discontinue the proceedings “without prejudice,” which was denied, in so far as that the dismissal should be “without prejudice.” Issue having been joined in the cause now reviewed, Mr. E. V. Jackson was appointed examiner and master. At the hearing, testimony was taken which fully appears in the Opinion of Court below. The other testimony is immaterial as the case was decided. Upon the facts found, the master determined: 1. That the contract of compromise of March 16, 1873, clearly gave an estate in fee as to the one sixth of the two fifths of the lands therein described to Edwin S. Osborne, trustee, for the use of Catherine E. Doyle in fee. 2. That Catherine E. Doyle, and therefore the plaintiff, was entitled to the specific performance of this contract by the defendant, John W. Hollenback, which in this case should be effected by the reformation of the deed of August 30, 1873, according to the prayer of the bill. 3. That the decree upon the demurrer to the bill filed to No. 2 May Term 1882, was not a dismissal of the bill on its merits, and therefore could not be pleaded in bar of the plaintiffs relief as res judicata. A formal decree was recommended. The defendants then filed with the master a large number of exceptions, one of which was that he had erred in finding, as matter of fact, that there was evidence that the deed of August 30, 1873, as framed, was the result of mutual mistake of the parties thereto; another, that he had erred in overruling the demurrer as contained in the answer of J. W. Hollenback; and another, that he had erred in finding as matter of law, that the plaintiff had established his right to the reformation of the deed, as prayed for in his bill. These exceptions, being overruled by the master, were renewed upon the filing of the report, and on April 2, 1887, after argument, were disposed of in the following opinion, Rice, P. J.: In disposing of the exceptions to this report we have been compelled to abandon any attempt to consider them singly. As shown by the arguments of counsel, as well as the report of the master, the first question suggested is as to the construction of the agreement of May 16, 1873 ; and after a full and careful consideration of this question, leaving out of view the subsequent acts of the parties, we think the contract, on its face and taken as a whole, clearly manifests an intention to pass a fee, not only to the trustee but also to the beneficiaries therein named. That a fee was to pass to the trustee is expressly declared in the instrument, and while this is not conclusive, it is not unimportant in determining the intention of the parties as to the quantum of estate.to be secured to the cestuis que trustent. When it is considered further that the contract was executory, that it was supported by a valuable and highly meritorious consideration, that it made no provision for the accumulation and investment of the coal rents and purchase money of lots, but clearly contemplated the payment of the same in bulk to the beneficiaries ; that, while careful to stipulate, first, for the vesting of a fee in the defendant, and second, for the conveyance of a fee to the trustee, no words as “ during life ” are used in connection with the limitation to the cestuis que trustent, we think it is not to be presumed from the absence of words of inheritance that they were to take only life estates, and that the provision for the conveyance of a fee was inserted inadvertently, but, on the contrary, if the case rested here, it would come fairly within the rule that in executory contracts words of inheritance will be supplied where the consideration paid or other circumstances evince that no less than a fee was intended. This conclusion is so well sustained, and the arguments against it so satisfactorily answered, by the reasoning of the master and the authorities cited by him, as to render unnecessary a greater elaboration by us of the considerations above suggested. We, therefore, pass to the second question. The deed from J. W. Hollenback, while purporting on its face to be in pursuance of the contract and subject to its limitations and conditions, does not contain technical terms importing a fee, whereas, as we have seen, he had agreed to convey such an estate. If this were all, the simplest case for the exercise of the power of this court to reform written instruments would be presented. The mistake would be apparent on the face of the instrument, and there would be no room for presuming from the trustee’s acceptance of the deed that a new intent, different from that manifested by the executory agreement, had supervened; for, to say nothing of the rebuttal of such presumption by the recitals of the deed, the trustee had no authority to vary the agreement by the acceptance of a deed for a less estate than that called for by the agreement. This naturally leads up to an inquiry as to the action of J. M. Hollenback, in connection with the execution and delivery of the deed in question, and his knowledge of its contents and legal effect at that time. It appears from the testimony of General Osborne that the deeds from J. M. Hollenback to J. W. Hollenback, and from the latter to the trustee, although bearing different dates, were delivered cotemporaneously in December, 1873, and that, for a considerable period prior to that time, the deed from J. W. Hollenback was in the possession of J. M. Hollenback — not pursuant to a formal delivery, as has been suggested, but for examination — and for a portion of the time was in the hands of his counsel. Hence, the delivery and acceptance of the deeds are not to be regarded as independent acts, but as parts of the same act. Neither is the case to be decided, and the rights of this plaintiff determined, upon principles which might apply if the deed of John M. Hollenback, executed in strict fulfilment of his covenants, stood alone, without any performance or attempted performance by J. W. Hollenback of his part of the contract. Nor are we to look at the case as if, subsequently to the delivery of the deed from J. M. Hollenback, he had undertaken, as an independent act, to release J. W. Hollenback, wholly or in part, from the performance of his covenants, upon which that deed was based as a consideration. We are to consider not only the acceptance of the deed from J. W. Hollenback, after examination by counsel, but also the cotemporaneous delivery of the deed from J. M. Hollenback. And, without attempting to follow or answer the elaborate and very learned argument of counsel upon this point further than the above suggestions are an answer, we conclude that up to this time it was within the power of the parties to vary their original agreement, without the consent of the other beneficiaries. In other words, the plaintiff’s testatrix and her sister had not such an equitable estate or interest in the land as to prevent J. M. Hollenback, their father, from revoking the proposed settlement on them altogether, much less from accepting in consummation of the contract a deed by which the voluntary provisions for them would terminate with their lives. If this be so, then the facts above stated become material as bearing upon the question of a change of intention. A hasty consideration might create the impression, that if there is any discrepancy between the agreement and the deed, it is to be accounted for, not upon the theory of a mutual mistake, but of an intentional change of purpose. It will be seen, however, upon more careful examination, that such an inference from these facts alone, as against the solemn recitals of the deeds, would be unwarranted. And inasmuch as the exceptions, unjustifiably, as we think, criticise some of the master’s findings as to the purport of the deeds, it will not be out of place to quote therefrom in this immediate connection. The deed from J. M. Hollenback recites the agreement in full, and then declares that it is made “ in consideration of the performance of the covenants set forth in the above recited agreement, to be kept and performed by and on the part of the said J. W. Hollenback.” The deed from J. W. Hollenback declares that it was made “ in consideration of the conveyance to him by J. M. Hollenback and wife of all their right, title, and interest in and to all and singular ” the lots included in the ejectment suit, “ and also subject to the conditions and limitations contained in a certain article of agreement between J. W. Hollenback and J. M. Hollenback, dated May 16, 1873, and filed in the prothonotary’s office of Luzerne county, in case No. 628 April Term 1872, in pursuance of which this conveyance is made,” etc. In determining what was the intention of the parties at the time the deeds were exchanged, the above quoted recitals cannot be ignored. Unexplained by other circumstances in connection with the act, they would furnish indubitable evidence that no change had taken place in the minds of the parties, and that they contemplated nothing less than to carry out their agreement according to the original intention. But, it is argued, there was a dispute between the parties as to the form of the conveyance to be made, and after examination by counsel, J. M. Hollenback and E. S. Osborne, the trustee accepted the deed, and the former delivered his own, knowing that J. W. Hollenback contended that he was only bound to convey a life estate and would convey nothing more. If these facts be established we do not see how we can enter a different judgment from that entered in the case of Osborne v. Hollenback, No. 2 April Term 1882. Under the supposed state of facts, the deed, as to the quantity of estate granted, was precisely what J. W. Hollenback intended it to be when he delivered it, and what J. M. Hollenback understood it to be when he accepted it and consummated the agreement by the cotemporaneous delivery of his own deed. For the court, under such circumstances, to write in this deed words of inheritance upon the ground that they were omitted by mistake would be to act on a presumption contrary to the facts. In effect, it would be putting into the deed what was deliberately left out by the parties. When this question was before us -in the former cáse we thought it to be the decisive one. After a far more exhaustive examination of the authorities, aided, as we have been by the most thorough and intelligent research of counsel and master, we still think it to be so. Down to the period of its consummation an executory contract is subject to modification, and when an act is done, which, without fraud or mistake, is tendered on the one side and accepted as full performance on the other, it is not competent to the party who accepted to allege that some part of the original contract remains to be performed: Seitzinger v. Weaver, 1 R. 385. What, then, is the evidence' to sustain the defendants’ position ? In the eleventh paragraph of his answer J. W. Hollenback avers as follows: “ I 'have always and at all times insisted that by the terms and intention of the agreement of May 16, 1873, nothing more than a life estate in the said two fifths was contemplated or provided for; that I refused to execute any conveyance for a larger estate; that the deed, as executed by me, and which is conceded by the said bill to create only a life estate, was submitted to the said John Matthias Hollenback, he being sui juris and the only person interested, and the said Edwin S. Osborne, trustee, and was accepted by them, after having retained the deed for many weeks, with full knowledge of my position and of my refusal to convey anything more than such life estate.” General Osborne, while averring in his answer that the deed was submitted to J. M. Hollenback for examination, that some • objection was made to the deed, and that counsel were consulted and the matter examined, and that afterwards it was accepted' by’ J. M. Hollenback, does not say that the grounds of the objection were the quantity of estate to be conveyed, or that the delay in the final delivery of the deed was due to a dispute between the parties upon that question. On the contrary, when he came to be examined he was asked this question: “State what information you ever had, if any, during the lifetime of Catherine E. Doyle, that John Welles Hollenback had communicated any refusal to John M. Hollenback, or to any one else, to convey more than a life estate under his covenant in his contract of May, 1873?” To this question the following answer was made: “The deed was made by John Welles Hollenback to me, as I suppose, in pursuance of the contract. I never heard any question about the extent of the interest conveyed by the deed until about the time of the filing of the bill in equity by Judge Harding. It was the first bill drawn by him..... Up to that time I never heard, to my recollection, any question about the estate conveyed.” It is not denied that the answer of J. W. Hollenback, in so far as it alleges a refusal on his part to convey an estate in fee, is responsive, and while the counsel have displayed great ingenuity in attempting to show that it is so inconsistent with other averments as not to entitle it to be considered as evidence of the facts alleged in this particular, we do not think their effort has been successful. Upon the principles enunciated in Eaton’s Appeal, 66 Pa. 483, and kindred cases, it has effect not only as a denial of the mistake alleged in the bill, but also as evidence of the facts asserted in connection with the execution and delivery of the deed. But while this is so, we do not think, in view of the above quoted testimony, that the answer stands uncontradicted. On the contrary, the evidence of General Osborne is entitled to consideration not merely as negativing the averment of his knowledge of the defendant’s contention, but also, in view of his relations to J. M. Hollenback, is entitled to some weight as affirmative evidence, that the conveyance of a life estate merely was not under discussion. When we consider further, that the deed of J. M. Hollenback shows on its face that he had no intention of releasing J. W. Hollenback from the performance of any of his covenants; that the deed of J. W. Hollenback shows that the contract was not extinguished but was retained in full life as evidence of the conditions and limitations, subject to which the deed was made ; that after its execution and delivery up to the death of Catherine E. Doyle, J. W. Hollenback continued to pay over to the trustee, and without dissent permitted the latter, with his knowledge, to pay over to Catherine E. Doyle not only one sixth of two fifths of the coal rents but also of the purchase money of lots, we are unable to say that the master erred in holding that the averments of the answer were met by the equivalent of two witnesses. We agree, in view of the fact that this was an opened mine from which these coal rents were received, and of the conflicting opinions as to the nature thereof, that not much weight is to be accorded to the defendant’s treatment of the same as part of the income. This was not necessarily inconsistent with his contention that only a life estate had passed. But his recognition of her right to receive one sixth of two fifths of the purchase money of lots is a fact of much greater significance. It indicates that the stipulation in the contract for a conveyance in fee simple was not inserted inadvertently, and that, notwithstanding these technical words were omitted from the deed, her rights to the corpus of the estate, at least so far as the surface was concerned, were understood to be the same as they would have been if the deed had literally carried out the provisions of the contract. We are unable to reconcile this fact with the theory that the deed was delivered and accepted upon the distinct understanding that only a life estate was to fie conveyed, and that, therefore, the beneficiaries were only entitled to the interest on the fund and not the fund itself. We have now considered the main points which the merits of the case involve, and conclude that the master was justified in finding that the failure of the deed to convey the estate limited by the contract was due to a mutual mistake and not to a change of intention. There being evidence sufficient in quantity to justify the finding, notwithstanding the answer is responsive, it became a question of fact, and the master’s conclusion is, therefore, entitled to the weight usually accorded to such findings. Lack of time has prevented us from discussing the other questions. We have fully considered them, however, and think they are adequately treated and properly disposed of by the master, with perhaps one exception. We have some question as to the plaintiff’s right to a conveyance from the trustee, and shall be pleased to hear further from the counsel when the formal decree is submitted. The court then signed a decree in accordance with the foregoing opinion, and referred the cause back to the master to take and state an account of the coal rentals' and purchase money of surface lots sold, from February 14, 1881, etc. The report of the master stating the account having been filed and disposed of by a final decree, the defendants took this appeal, assigning as error the overruling of the exceptions to the master’s first report, and the decree of April 2, 1887.
121 Pa. 344Woodward v. Del. L. & W. R. Co. (1888)
ERROR, TO THE COURT OE COMMON PLEAS OE LUZERNE COUNTY. No. 382 January Term 1888, Sup. Ct.; court below, No. 236 January Term 1888, C. P. On December 31, 1887, a case stated was filed wherein Stanley Woodward, George .A. Woodward, John K. Woodward, Charles F. Woodward, and Theodore Strong, were plaintiffs, and The Delaware, Lackawanna and Western R. Co. was defendant, and wherein it was agreed: 1. By contract in writing dated August 29, 1872, and recorded in the office for recording deeds, etc., for the county of Luzerne, in Deed-book No. 162, page 54, etc., a copy of which contract is herewith submitted to the court as part of this case stated, Stanley Woodward and J. Pryor Williamson, parties of the first part, G. M. Reynolds and others, parties of the second part, “ granted, demised, leased, and to use and mine let ” to said The D. L. & W. R. Co. party of the third part, all the coal under the premises therein described, together with certain surface rights as therein set forth, the said company to pay for said coal at the rate of twenty-five cents per ton in quarterly instalments, at the times and in manner, etc., in said contract specified. 2. That prior to April 1, 1883, all the right, title, and interest of said Stanley Woodward and J. Pryor Williamson, in and to said above-recited contract, as well as any right, title, and interest then yet remaining in them, in and to the premises therein described, became duly vested in the above-named plaintiffs. 3. That by deeds dated May 18, 1883, and April 24, 1883, and recorded in said county of Luzerne, in Deed-book No. 235, page 559, etc., in Deed-book No. 238, page 48, etc. (which deeds are made a part of this case stated), the said plaintiffs granted and conveyed to the said defendant about one hundred and twenty-five and one half acres, part of the surface overlying the coal embraced in said contract of August 29, 1872, in each of which said deeds it. is provided as follows, viz.: “It is understood and agreed that this deed by which the parties of the first part convey their .right, title, and interest jn and to the surface of the above-described tract of land only, shall in no way affect their interest in and title to the coal underlying the same and embraced in that certain indenture of lease made and executed by Stanley Woodward and James Pryor Williamson to the said D. L. & W. R. Co. dated August 29, 1872, and recorded in the recorder’s office in Luzerne county, in Deed-book No. 162, page 54, etc., nor shall this conveyance affect in any way the right of either of the parties hereto in and under the provisions of the said lease, but the same' shall remain in full force and effect so far as the same relates to the coal in and under the said tract of land, notwithstanding this conveyance of the surface thereof.” 4. That in and by said instrument of writing of August 29, 1872, first herein recited, it is among other things further provided “ that the said party of the third part (the aforesaid defendant) shall pay all taxes which may be imposed upon the surface of that portion of said lands occupied by them, and upon the improvements by them made thereon, and upon the' coal or the transportation thereof after it is mined, and the said parties of the first part and second part shall pay all the taxes imposed upon the coal in the ground and upon the surface not occupied by the party.of the third part.” 5. That after the conveyance of surface in 1883, as herein-before stated, and prior to 1885, the coal in the ground and the surface were separately assessed, and for the year 1885 the assessment of the coal in the ground was made to defendant without notice, and defendant did not discover the fact until bill for taxes was presented, whereupon the defendant gave notice to plaintiffs, and the taxes for that year (1885) were paid by the plaintiffs as hereinafter stated, and for the year 1886 the assessment of the coal in the ground was, at the request of defendant, actually made by the county commissioners to the plaintiffs, and afterwards, upon the demand of the plaintiffs., the said assessment was changed by the commissioners from said plaintiffs to said defendant company, the defendant company protesting against said change. The coal and surface of the said premises were thus for the years 1885 and 1886 assessed together as coal and surface to the said defendant at a single valuation, and no assessment of the coal in the ground alone as distinct from the surface was finally made to any one, this being done against the protest and without the consent of the defendant. 6. While plaintiffs protest that the fact is immaterial and irrelevant to this case, it is nevertheless agreed that the average assessment of surface in the borough and township in which said premises are situate, was thirty dollars per acre for the years 1885 and 1886, and the average assessment of coal in the ground in same place, and for same years, was $120 per acre, and at those rates of assessment or valuation the taxes on the coal in the ground underlying said one hundred and twenty-five and one half acres, for 1885 amounted to the sum of $263.58, and for 1886 to the sum of $390.80. 7. That the defendant claimed that of the taxes levied on said coal in the ground and surface for the year 1885, the sum of $263.58 was the proportion that ought to be borne by the coal in the ground, and demanded that the same should he paid by the plaintiffs, and therefore notified the plaintiffs that in case of refusal by them and payment thereof by defendant, the latter would deduct the amount from the next instalment, payable to plaintiffs under the aforesaid instrument in writing of August 29, 1872. That thereupon the said amount was paid by the plaintiffs under protest and a disclaimer of liability. 8. That of the taxes levied for the year 1886 on said coal and surface, the defendant claimed that the sum of $390.80 was the proportion that ought to be borne by the coal in the ground and paid by the plaintiffs, of which claim the plaintiffs were notified by the defendant, but the same was in fact paid by the defendant, and the amount therefor deducted and retained from the instalment claimed by the plaintiffs to be due the plaintiffs for the quarter ending the first day of October, 1886. If, therefore, the court shall be of the opinion that the plaintiffs are entitled to recover, in this action, the amount so paid by them for said taxes on the coal in the ground in 1885, and the amount retained by defendant on account of the taxes on the coal in the ground in 1886, the judgment to be entered in favor of the plaintiffs and against the defendant for $654.38, with interest on $263.58 thereof from October 1, 1885, and on $390.80 thereof from October 1, 1886; but if the court shall be of the opinion that the plaintiffs are entitled to recover only in a single amount, then judgment to be entered for such one of said amounts; and if the court shall be of opinion that the said plaintiffs are not entitled to recover for either of said amounts, then judgment to be entered in favor of the defendant and against the plaintiffs. Costs to follow the judgment of the court. Either party to be entitled to sue out a writ of error to the judgment that shall be entered by the court. The granting clause of the said mining lease, made a part of the case stated, was as follows: “ Have granted, demised, leased, and to use and mine let, and by these presents do grant, demise, lease, and to use and mine let, unto the said party of the third part, their successors and assigns, all the coal situate, lying and being upon, in and under all of the above described lands, with the right to enter into and upon the said lands and mine, obtain, break, screen, prepare, take away and dispose of said coal, for the sole use and benefit of the said party of the third part, their successors and assigns, in such way and manner as they shall think proper.” Other .provisions of the lease, especially the eleventh section by which alone was it determinable, sufficiently appear in the opinion of the court below: ' On February 24, 1888, the court, Dreher, P. J., 43d judicial district, presiding, filed the following opinion: The indenture, called a mining lease, of August 29, 1872, inter alia, provides that the company may use, without charge therefor, the coal 'required in obtaining and preparing for market the coal mined, and that no account is to be kept or charge made for any of the coal mined, except that which is loaded into cars for transportation to market, and that which they may sell to miners and others at the mines. Also, that the plaintiffs may at any time inspect the workings of the mines by a mining engineer, to see that they are worked with a due regard to their interests; and also that, in order to ascertain the amount of coal mined, they may, at all reasonable and proper times, examine the books and accounts of the company, etc. And under the head, “ And the parties hereto do hereby mutually agree,” the clause marked “Eleventh” is as follows: “ That in case of the failure of said party of the third part to make any of the payments for said coal hereinbefore by them agreed to be made, within ninety days from the time when the same, according to the terms of this indenture, shall become due and payable, then and in that case this present indenture of lease, and the estate and rights hereby granted, and all and singular the covenants, agreements and undertakings of all the said parties of the first, second and third parts, hereinbefore contained, shall be and become null and void and of no effect; but the said party of the third part shall thereby forfeit to the said parties of the first and second parts all of the improvements which they shall have made upon the hereinbefore demised property, and shall surrender to the said parties of the first and second parts the possession of the said lands and property, and of the- improvements thereon, and shall pay for any coal they may have taken from said lands; whereupon all the rights and liberties of all the parties hereto under this indenture shall cease.” The case as stated does not inform us how the coal was assessed prior to 1883, but it was said, at the argument, that the land was assessed including the coal, as a whole, at a single valuation; indeed, it is now said by plaintiffs that the statement in the fifth paragraph of the case stated, that after the conveyance of the surface in 1883, and prior to 1885, the coal in the ground, and the surface, were separately assessed, is a mistake, though the defendant says it is correct; and there is nothing in the case showing who paid the taxes on the coal in the ground prior to 1885. Of course, we must take the facts as we have them in the case as made by the parties; but it is, I think, of little, if any, importance who paid the taxes or how the property was assessed prior to 1885. There is no contention between the parties as to those taxes, and no doubt they were satisfactorily adjusted. It is conceded that the legal effect of the contract of August 29, 1872, called a mining lease, under the decisions of the Supreme Court in Sanderson v. Scranton, 105 Pa. 469, and Del. etc. R. Co. v. Sanderson, 109 Pa. 583, was a sale of the coal in place, and was such a severance of the surface from the substratum that the coal in the ground should be assessed separately from the surface, and the several owners, in the absence of any contract between them controlling the matter, would be hable for the taxes on their respective properties. By the terms of the contract the plaintiffs agreed to pay all the taxes that might be imposed upon the coal in the ground, and therefore it was a matter of indifference to them, so long as they continued to own the surface, whether the coal in the ground was separately assessed or not. Being bound as between themselves and the defendant to pay the taxes, the assessment of the coal in the ground separate from the surface would not have relieved the plaintiffs from their contract obligation to the defendant. In Sanderson v. Scranton, supra, Sanderson by agreement very similar tft the one involved in the present case, leased to "Jermyn, whose interest subsequently became vested in the D., L. & W. R. C., all the coal beneath the surface of a tract of land. The city authorities of Scranton caused the coal and the surface to be assessed separately, as the property of Sander-son. Sanderson resisted the collection of the tax on the coal in the ground, contending that the agreement with Jermyn operated as a sale or assignment of all the coal, and not merely of that mined. By the agreement, Jermyn was to pay all government imposts, United States, state, county, and local taxes upon the coal mined. The court below held that the agreement did not operate as a sale of the coal in place, and entered judgment in favor of the city. The Supreme Court reversed this judgment, holding that the agreement was a sale of the coal, and that it must be assessed to the owner, the D., L. & W. R. Co. The question came up again in Del. etc. R. Co. v. Sanderson, 109 Pa. 588, in which case the company sought to recover from Sanderson the taxes paid by the company, assessed on the coal in the ground, and the Supreme Court adhered to their former decision. It is contended by the plaintiffs that those cases and the case of City of Scranton v. Gilbert, 16 W. N. 28, rule the present case; that, as by the contract of August 29,1872, the railroad company became the owner of the coal in the ground, and by the conveyances in 1883 the surface was conveyed, the two estates or interests became united, and as the company is now the owner of the surface, and the underlying coal both, it is liable for the taxes; that the property as a whole must be assessed to the company as land, and, as held in the City of Scranton v. Gilbert, supra, the coal cannot be separately valued and assessed. This position of the plaintiffs is certainly correct, unless there is such a contract relation between the parties as to take the case out of the general rule. I think it is beyond question that under the indenture of August 29, 1872, though that was a sale of the coal in place, the plaintiffs were bound to pay the taxes on it, for the very simple reason that they agreed to pay them. Whether the coal and surface were assessed at a single valuation to the plaintiffs, or the coal was separately assessed to the defendant, would make no difference. The form of assessment by the assessors and commissioners could not affect the contract between the parties. In Sanderson v. Scranton, and Del. etc. R. Co. v. Sanderson, there was no contract stipulation in regard to the taxes on the coal in the ground, only as to the coal mined; and of course the taxes were properly assessed to, and must be paid by the owner of the coal. If Sanderson had agreed, as the plaintiffs here have, to pay all the taxes that might be imposed upon the coal in the ground, 1 take it, the Supreme Court would have held him to his contract. The question remains, whether the plaintiffs have been relieved from their contract obligation, created by the contract of August 29, 1872, by the operation of the conveyance of the surface of the land in 1883; and the solution of this question must be found in the following clause, contained in the latter conveyance, viz.: “It is understood and agreed that this deed, by which the parties of the first part convey their right, title, and interest in and to the surface of the above described tract of land only, shall in no way affect their interest in and title to the coal underlying the same, and embraced in that certain indenture of lease made and executed by Stanley Woodward and James Pryor Williamson to the said D. L. & W. R. Co., dated August 29, 1872, and recorded in the recorder’s office in Luzerne county, in deed book No. 162, page 54, etc.: nor shall this conveyance affect, in any way, the right of either of the parties hereto, in and under the provisions of the said lease; but the same shall remain in full force and effect, so far as the same relates to the coal in and under the said tract of land, notwithstanding this conveyance of the surface thereof.” The conveyance of the surface shall not in any way affect the rights of the defendant (either party) under the lease (indenture) of 1872; but the same (the lease or indenture of 1872) shall remain in full force and effect, so far as the same relates to the coal in the ground. It seems to me, it would be difficult, by any form of expression, to more clearly and plainly declare the intention of the parties to retain their relations and rights as respects the coal in the ground, as defined in the contract of 1872; and that the conveyance of 1888 should not, in any respect, work a change in their respective rights and obligations as regards such coal. Now, it is the right of the defendant, under the contract of 1872, to have the coal in the ground, at the royalty of twenty-five cents per ton, free of taxes; for the stipulation that the plaintiffs shall pay all the taxes, is equivalent to saying (hat the defendants shall have such coal free from taxes. But it is said that where the surface and the underlying coal are owned by the same person, the land and coal must be assessed as a whole in a single valuation: Scranton v. Gilbert, supra; and therefore as the defendant is now the owner of both surface and coal, no tax can be imposed upon the coal as coal. In Scranton v. Gilbert, the question was between the owner and the taxing authorities. There was not involved a question between the owner and some one else who stood in a contract relation to the owner, involving the liability of such third party to pay the taxes on the coal. In the case in hand it appears that in the township where this land is situated, the coal in the ground is valued by the acre, and the surface is also valued by the acre, in making the assessments; and if there be a single valuation where the surface and coal are assessed together as a whole, the proportion of taxes that should be borne by the coal and the surface respectively is a matter of easy calculation. Id eertum est, quod eertum reddi potest. But, it has not been decided that where one man, for a valuable consideration, puts himself in such contract relation with another, in respect to that other’s land, by which he is to pay the taxes imposed upon it, that the land may not be assessed to him. I think where a tenant, for instance, agrees to pay all the taxes that may be imposed upon the demised premises during the term, an assessment of the premises to him would be a good and valid assessment, and the taxes could be collected from him, and if he failed to pay, the taxes would be a lien on the land, and why may not the coal in the present instance be assessed to the plaintiffs? It seems to me, the plaintiffs being liable to pay the taxes under their contract with the defendant, there would be no impropriety in assessing the coal to them. Who could complain? The plaintiffs? What would they have to complain of? They would only be required to do what they agreed to do. The defendant would not complain. It is said, however, that where the surface and coal are owned by the same person, they cannot be separately assessed. That is so, where the owner has not by contract imposed the payment of the taxes on the coal upon some one else. True, perhaps, the taxing authorities could not be compelled to assess the coal and surface separately where there has not been an actual severance by sale, but where parties, as here, have by their contract, so far as taxation or payment of taxes is involved, virtually severed the surface from the underlying coal, why may not the assessment be in accordance with that contract? But, if the equities of the parties under their contract cannot be worked out through the taxing authorities, in the form of the assessment, the contract should be enforced in some other form of remedy, if, as in the case in hand, the proportion of the tax which should be borne by the coal may be ascertained. It is said in argument that when the contract of August 29, 1872, and the conveyance in 1883, of the surface, were made, all parties supposed the plaintiffs were still the owners of the coal in place; and not until the judgment in Sanderson v. Scranton was announced, did any one suppose that the lease of 1872 operated as a sale of the coal in the ground ; and that the stipulation for payment of taxes was entered into upon the theory that the plaintiffs owned the coal. Grant this, how does it in any way change the liability or interest of the plaintiff ? They still receive their royalty, the same as if they were the technical owners of the coal. The royalty is in no way diminished, the defendant being bound to pay for the minimum quantity named in the contract, annually, whether mined or not; and the clause of forfeiture on non-payment of royalty remains intact, and when the coal shall be all mined, I take it, the substratum will revert to the plaintiff. They sold only the coal, and if any other valuable mineral should be discovered in this substratum, it would belong to the plaintiffs, unless there be something in the deed conveying the surface to change this result. The plaintiffs still have their interest in the coal, to the extent of the royalty to be paid them, and this is all they would have if the contract of 1872 was technically a lease, as it was supposed to be when entered into. I am of opinion that the plaintiffs are not entitled to recover any of the taxes for the years 1885 and 1886. Judgment having been entered in favor of the defendant, as ordered, the plaintiffs took this writ and assigned the entry of judgment as error.
121 Pa. 359Appeal of Danforth (1888)
FROM THE DECREE OF THE ORPHANS’ COURT OF LUZERNE COUNTY. No. 404 January Term 1888, Sup. Ct. On July 30, 1887, upon the joint petition of The Christian Church of Plymouth and The Trustees of the Christian Church of Plymouth, a citation was awarded upon Mary G. Danforth, executrix, and certain others, residuary devisees under the will of Henderson Gaylord, deceased, to enforce payment of the legacies bequeathed in certain portions of the will of Henderson Gaylord, which were as follows : 1. I give and bequeath unto my beloved wife, Betsey, the sum of two thousand dollars, to be used by her for the purpose of erecting a dwelling-house, if she so desires; but I leave the use of the said sum discretionary with my said wife. And also the sum of five hundred dollars a year, in addition to the sum of three hundred dollars per annum, which she is to receive under our marriage settlement or agreement,- recorded in the recorder's office, in and for said county of Luzerne; the said two thousand dollars to be paid to my said wife one year after my decease, and the said five hundred dollars to be paid to her yearly, in each and every year during her natural life; the first thereof to be paid one year after my decease, and the said yearly payment of five hundred dollars is to he paid out of rents accruing under and from the lease of coal to The Wilkes-Barre Coal and Ron Company, if the said rents fail not to be paid; the same to depend upon the payment of rents under said lease sufficient at least to pay the legacies herein charged thereon, and not to be paid out of or charged on any other part of my estate; but if my said wife does not survive me, then and in such case the foregoing legacies to her are to be void and of no effect. 2. I give and bequeath unto The Christian Church of Plymouth two hundred dollars a year out of the rents accruing under and from the said lease with The Wilkes-Barre Coal and Iron Company, so long as the said lease runs and produces rents sufficient at least to pay the legacies herein charged thereon, to be paid yearly in each and every year while said lease produces rents as aforesaid; the first to be paid in cine year after my decease ; the said sum to be used for the purpose of aiding in the support of a minister to serve said church as such, but in case the said church shall neglect or decline to have regular preaching for the space of six months, then the said legacy shall accumulate and be expended for the purpose above mentioned, viz.: for preaching in the said church; but should the said church or society neglect or refuse to employ a minister for the term or time of three consecutive years, then and in such case I will and direct that the said two hundred dollars yearly be paid over to the trustees of the said The Christian Church of Plymouth, to be by them paid over to and distributed among the indigent widows residing in the said borough of Plymouth; to be paid to such widows as the said trustees shall deem most needy and worthy, reference being had to the Christian and moral character and good behavior of said indigent widows. * * ***** -X * * 13. I give and bequeath to the trustees of The Christian Church of Plymouth and their successors, the sum of six hundred dollars a year out of the rents of the aforesaid coal lease with The Wilkes-Barre Coal and Iron Co., to be paid yearly in each and every year while said lease produces sufficient rents to pay the legacies charged thereon, and to be paid out of the said rents, by the provisions of my will, to the said trustees, and their successors, in trust for the benefit of the indigent widows residing in said borough of Plymouth, to be distributed among and paid over to such widows in such sums, and at such times, as the said trustees and their successors, shall decide to be most needy and worthy, reference being had to the moral character and good behavior of said widows. ******* * * * The bequests in the foregoing will, viz.: Five hundred dollars to my wife, two hundred dollars to The Christian Church, and six hundred dollars to the trustees of The Christian Church for the benefit of indigent widows, I will and direct shall be paid out only from the rents of The Wilkes-Barre Coal and Iron Company, and to be paid, one half on the twentieth days of January and July in each and every year, and no other part of my estate is charged therewith. The petition averred that the executors of the will had paid the legacies for the year 1877, but since then had refused to pay the same alleging that the Lehigh and Wilkes-Barre Coal Co., into which The Wilkes-Barre Coal & Iron Co. had been merged, became insolvent and went into the hands of a receiver on February 14, 1877, and such proceedings tvere had in the Circuit Court of the United States for the Western District of Pennsylvania, that the lease to The Wilkes-Barre Coal & Iron Co., referred to in said will, was adjudged forfeited and at an end on December 22,1877; that the proceedings for the forfeiture of said lease were without notice to the petitioners, and without their consent; that subsequent to the said decree of forfeiture, to wit, on May 8, 1878, the said executors, with the knowledge and assent of the residuary devisees, had made and executed a lease of the same coal privileges to Thomas Beaver and Daniel Edwards, trading as The Gaylord Coal Company, and that under this last lease rentals had been received by said executors of Henderson Gaylord, deceased, and, through them, by the residuary devisees, sufficient for the payment of said legacies, praying, etc. Responsive answers having been filed by the residuary devisees, and also by The Gaylord Coal Company, brought in as a party to the proceeding, testimony was reported by Mr. John B. Reynolds, examiner, when, after argument, on February 17, 1888, the following opinion was filed by the court: The question to be answered may be stated as follows : Did the forfeiture of the coal lease of The Wilkes-Barre Coal and Iron Company wmrk an extinguishment of the annuity bequeathed to these petitioners? We conclude that these legacies were not extinguished, and think the reasoning set forth in case of Shupp v. Gaylord, 108 Pa. 319-330, is applicable here. We fail to see any distinction in the character of the gift to these petitioners and that to the widow. There is a very slight difference in phraseology but no more than seems necessary to provide for the life of the wife which is limited, while the existence of The Christian Church of Plymouth and of destitute widows, as societies, is practically limitless. The wife might not, most probably would not, live to the end of the lease while the societies named as petitioners would certainly exist “ so long as the said lease runs and produces rent.” The other cause for the repetition of the provision limiting the bequests to the income from the said lease does not seem to be an intent to shut the legatees up to the particular lease but rather to define the leased estate as the only source of income from which these annuities are to be paid; and in this respect it seems to us there is' expressed but one common intent. The widows’ income is to be treated the same as the bequests to the church and its trustees. The conversion of the leased estate into another lease sufficient to pay the annuities, ought not to change the character of the legacies nor the lien thereof, without clear expression of an intent that such should be the case. This is not a question of ademption, but rather one of the effect of the forfeiture of the modus of payment of the annuities, which forfeiture was wrought by the Circuit Court without notice to these petitioners. The testator seems not to have contemplated any forfeiture of the lease. His language concerning the duration and conditions of the annuities, is evidently based upon the idea that the company might work the coal to partial or total exhaustion before the expiration of the term of forty years. While the lease continues, or during the term specified for its continuance, these annuities shall be paid provided there be no exhaustion of the coal or sufficient rent be received to pay them, seems to have been the only idea in the testator’s mind. This question has been so fully discussed that we shall only darken counsel by any more words: See Welch’s App., 28 Pa. 363-365 ; 2 Williams on Exrs., 1170-1320 ; Roper on Legacies, 225, 348, 354. Let a decree be drawn in accordance with petition. On March 5, 1888, a final decree was signed adjudging that there was due and payable to The Christian Church of Plymouth the sum of §2,740.50, and to the trustees of The Christian Church of Plymouth, in trust for the benefit of the indigent widows of Plymouth, the sum of §8,221.50, which sum stood charged upon the undivided one fourth interest or share late of Henderson Gaylord, deceased, in and to the coal estate described in the lease between Henderson Gay-lord et al. and the Wilkes-Barre C. & I. Co., dated, etc.; and it was further ordered that Mary G. Danforth, Mary G. Dan-forth, executrix of Emily G. Wilson, Lydia Gaylord, and others, residuary devisees of Henderson Gaylord, deceased, pay the said sums with interest, and in default thereof that the said undivided one fourth interest should be sold on a writ of levari facias under the direction of the court, subject to the payment of future instalments becoming due and to the rights of The Gaylord Coal Company, to enforce payment of the same. Thereupon, the respondents took this appeal, assigning as error: 1, 2. The findings that the several sums referred to were due and payable by the respondents. 3. The decree that payment of the legacies was secured by a charge upon the leased coal lands. ' 4. The decree that in default of payment the lands should be sold, as in said decree was provided. 5. The entertaining of jurisdiction in the premises.
121 Pa. 368Appeal of DuBois (1888)
FROM THE DECREE OF THE ORPHANS’ COURT OF CLEARFIELD COUNTY. No. 11 January Term 1888, Sup. Ct. On December 14, 1886, John E. DuBois, in his own right as owner, and as executor of the will of John DuBois, deceased, filed his appeal in the Orphans’ Court from the appraisement and assessment of the collateral inheritance tax upon the estate of said deceased. The hearing of the appeal was had on J uly 25, 1887, and on August 5th, the court, Krebs, P. J., hied the following report of the findings of fact and the conclusions of law thereon : Prior to the passage of the act of assembly of May 6, A. D. 1887, P. L. 79, the better practice, and that recognized generally by the lower courts as well as the Supreme Court, would have been for the register or clerk of the Orphans’ Court to have certified the amount of tax assessed in favor of the commonwealth to the Court of Common Pleas, upon which a writ of scire facias would then ha-»e issued, and the questions of fact involved in the controversy concerning the liability to pay the amount would necessarily have been submitted to a jury, with the proper instructions upon the law. But now the jurisdiction of the Orphans’ Court to determine the whole controversy, both of fact and law, is complete. In order that there may be no mistake about the facts found by the court, and controlling the conclusions of law, the facts following are distinctly set forth as found: FINDINGS OF FACT. 1. John DuBois died on May 5,1886, leaving to survive him none but collateral heirs. This was conceded in the argument by counsel for appellant, no formal proof being offered. - 2. On July 5, 1886, an appraiser was appointed under § 12 of the act of April 10, A. d. 1849, the then existing collateral inheritance law. An appraisement was filed in the clerk’s office of the Orphans’ Court, fixing the value of the estate at #3,310,360.06, on November 26, 1886, to which a supplementary schedule setting out the real estate appraised was attached on November 30, 1886. 3. On December 14, 1886, John E. DuBois made and filed his appeal from said appraisement to the Orphans’ Court. 4. On April 15, 1887, by an agreement in writing, the valuation of the estate was fixed at the sum of #2,800,000. Of this amount, #70,000 represents the valuation of the personal property, and mentioned in the inventory filed by John E. DuBois, as executor, and the real estate known as the “ Shaffer farm.” 5. Tbe appellant paid to the clerk of the Orphans’ Court, five per cent upon #70,000, or #3,500 as collateral tax, and denies liability upon the balance of #2,730,000. 6. On January 17, 1884, John DuBois by deed made and executed and delivered, conveyed to John E. DuBois, his nephew, all his estate, in consideration of one dollar, and certain other good and valuable considerations. The following being an exact copy of said instrument, which is interchangeably executed by both grantor and grantee : THIS INDENTURE, Made the 17th day of January, in the jrear of our Lord, one thousand eight hundred and eighty-four, between John DuBois, of DuBois, in the county Clearfield, State of Pennsylvania, of the first part, and John E. DuBois, of the same place, (the said John E. Dubois being the nephew of John DuBois, the party of the first part,) of the second part. WITNESSETH: That the said party of the first part, for and in consideration of the sum of one dollar, (as well as certain other good and valuable considerations,) lawful money of the United States of America, unto him well and truly paid by the said party of the second part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, enfeoffed, released, conveyed and confirmed, and by these presents doth grant, bargain, sell, alien, enfeoff, release, convey and confirm unto the said party of tire second part, his heirs and assigns, all the lands, tenements and hereditaments, which the said party of the first part owns, holds, or has title to, wherever the same may he, in any and every county, state, territory, or country upon the earth, of every nature and description whatever. Also, all the personal property, goods, chattels, notes, bonds, book accounts, rights, credits and assets, real, personal and mixed, which belong to the party of the first part, or in ■any way appertain to him, of every nature and character whatever, where-•ever the same may be found. As a part of the consideration for the sale and conveyance of the above property, John E. DuBois, the party of the second part, hereby covenants, agrees, and obligates himself to pay and fully discharge all debts, notes, obligations, covenants, contracts and damages of every nature and character whatever, whether arising or accruing from contracts or torts of the said John DuBois, party to the first part, and also such notes, obligations, debts, damages or contracts of the said John DuBois, party of the first part, executed, made or incurred a.t any time in the future, till the day of his death by the said John. DuBois; and for the full and faithful performance of this covenant of the party of the second part, all the real estate above conveyed, is hereby charged in the hands of the party of the second part, his heirs or assigns, and any and all the obligations of the above covenants may by the holders or owners of the rights of action which may be or are embraced in the above covenants, be sued for and recovered off the said John E. DuBois, by suit brought directly against Mm, without the intervention of the name of John DuBois, or any administrators on Ms estate. And it is hereby made an express condition in this deed and sale of land and personalty, that in case John E. DuBois, the party of the second part, shall die before John DuBois, the party of the first part, then in that event this deed, sale and conveyance, and all the covenants herein, shall be null and void, and all the property, real, personal, and mixed, above sold and conveyed, shall be and become fully revested in John DuBois, Ms heirs and assigns forever. Together with all increments accruing thereon or therefrom. [Tlie remaining parts of tbis deed, including the habendum, a general warranty, the sealing and delivery, receipt for One Dollar as the consideration, and the acknowledgment on January 17,1884, before a justice of the peace, were in tbe ordinary forms of a deed of conveyance of real estate, except that it was signed, sealed and acknowledged by both the parties thereto.] 7. On January 26, 1885, John DuBois made a last will, which, was duly probated on tbe 18th of May, 1886. This will is in the following words, viz.: I, John DuBois, of DuBois, in the State of Pennsylvania, do hereby make and publish this my last will and testament, hereby revoking any and all previous will or wills by mo made. 1 hereby give, devise and bequeath unto my nephew, John E. DuBois, all my property, goods, chattels and estate, real, personal, or mixed, of every nature and land, wheresoever situated, to Mm, his heirs and assigns forever. And I hereby appoint said John E. DuBois sole executor of this my will, as witness my hand and seal, this 26th day of January, A. D. 1885. 8. The deed of January 17, 1884, after execution and delivery at the house of Hon. George A. Jenks, in the borough of Brookville, Pa., was left in his custody and deposited in his care, and so remained until on the evening of April 25, 1886, he telegraphed from Mr. DuBois’ residence, at DuBois, to have it brought up, which was done on the morning of April 26, 1886, by E. H. Clark, Esq., who subsequently took tbe deed from DuBois to Clearfield on the same day, and on that day between tbe hours of 7 o’clock and 10 o’clock, p. m., bad it recorded in the office for the recording of deeds, and returned witb it the next morning to DuBois. 9. [Tbe commonwealth offered to prove by parol testimony, and we find as a fact from tbe evidence submitted, which we decide is fully competent and relevant: That there was no change whatsoever in the mode of conducting the business after January 17, 1884, until April 26, 1886, nine days before the death of John DuBois, the grantor; that the large and extensive operations in the manufacture of lumber, taking the standing timber from the land and through all the processes of manufacture to the sale and collection of the proceeds therefrom, was carried' on by John DuBois, in exactly the same way, after this deed was made and delivered, as before; and this so continued until April 26, 1886, after which the business was carried on in the name of John E. DuBois. During the period between January 17, 1884, and April 26, 1886, deeds for real estate were made by John DuBois, over his own signature, and judgments entered and revived, and mechanics’ liens entered in Ms name.] 18 10. [We also admit as competent evidence, the testimony of Dr. Hindman, who attended John DuBois daily from about March 15, 1886, to the day of his death, to prove the fact, and we find as a fact therefrom, that during that period, John DuBois had no hope of recovery himself, and that his physician had none; that he was in a very critical physical condition.] 19 11. [That from .the deed of January 17,1884, and the parol testimony, we find as a fact, that the enjoyment of the property granted was intended to take effect after the death of John DuBois, grantor.] 9 12. We decide that the testimony of Hon. George A. Jenks, so far as it relates to the conversation between John DuBois and John E. DuBois, and alleged reasons for not changing the method of business, and the declaration of John DuBois on April 26,1886, to put the deed on record, and all said in tiróse conversations, incompetent to affect, the intention of the parties as to time when the enjoyment of property by John E. DuBois should begin, as manifested by the deed, and the subsequent action of the parties. The reason is, it would be permitting the unsworn declarations of the parties to make evidence in their orvn favor, which, we think cannot be done.80 CONCLUSIONS ON LAW. Under the laws of this commonwealth. “If any person who at the time of his or her death was seized or possessed of any real or personal estate within the commonwealth, die intestate without heirs or any known kindred, such estate shall escheat to the commonwealth, subject to all legal demands on the same § 2, act September 29,1787, 2 Sm. L. 425; § 12, act of April 8, 1838, P. L. 319; § 1, act of June 27, 1884, P. L. 951. We refer to these statutes of escheat for the purpose of showing that the transmission of estates in this commonwealth is the subject of statutory regulation. The same power which declares that upon the happening of certain contingencies the entire estate shall escheat to the commonwealth, has also declared that “All estates, real, personal and mixed, of every kind whatsoever, passing from any person who may die seized or possessed of such estate, being within this commonwealth, either by will or under the intestate laws thereof, or any pai t of such estate or estates, or interests therein, transferred by deed, grant, bargain, or sale, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor to any person or persons, or to bodies politic or corporate, in trust or otherwise, other than to the use of father, mother, husband, wife, children or lineal descendants born in lawful wedlock, shall be and they are hereby made subject to a tax or duty of five dollars on every hundred dollars of the clear value of such estate or estates,” etc.: § 1, act of April 7, 1826, 9 Sm. L. 146; act of April 10, 1849, P. L. 571, and act of May 6, 1887, P. L. 79. It would not be a difficult matter to vindicate the propriety of such legislation, if such discussion was pertinent to the question before us. As to the nature and character of that which is commonly called a tax, and which is claimed by the state out of certain estates, before they shall pass to those who have done nothing to accumulate them, we refer any inquiring mind to the opinions of the learned judges in the lower courts, as reported in Strode v. Commonwealth, and Clymer v. Commonwealth, 52 Pa. 181, et seq. The statute is of too long standing for us to declare it odious, and by interpretation nullify its provisions. Whenever an estate is clearly within its provisions it is our duty so to declare, and enforce the law. All of the very learned argument of the senior counsel, Hon. W. P. Jenks, for the appellant, bearing upon the rules of construction to be applied to the deed of January 17, 1884, and the rights of the grantor and grantee thereunder, has, in onr humble judgment, little to do with the question before us. That a deed may not be changed, modified or explained by parol, except for fraud or mistake, is undoubtedly the settled law of this state. That the delivery and recording of a deed under our recording acts, has the same force and effect as feoffment and livery of seisin in any of the King’s courts of record at Westminster are or shall have in Great Britain, etc., is in the language of express statute. The construction and force to be given to the foi’mal words, “ grant, bargain and sell,” and the effect of a general warranty, are entirely foreign to the contention here. The whole question hinges upon a single fact, whether or not the transfer of January 17, 1884, was made or intended to take effect in actual enjoyment at the death of J ohn DuBois, the grantor. As is said by Mr. Justice Clark, in Reish v. Commonwealth, 106 Pa. 521, “ The policy of the law will not permit the owner of an estate to defeat the plain provisions of the collateral inheritance law by any device which secures to him for life the income, profits and enjoyments thereof ; it must be such a conveyance as parts with the possession, the title, and the enjoyment, in the grantor’s lifetime.” [Taking the deed of January 17, 1884, with the covenants or stipulations of the grantee therein, giving the power to the grantor to bind the estate granted by indebtedness, without limit as to the amount, and reading it with the proof that it was not placed on record until the grantor was in articulo mortis, and that the entire business of the vast mills and property, aggregating millions of dollars in value, was carried on and controlled by him without interruption from the grantee, and without change in any single department thereof, and the conclusion forces itself upon us, that it was not intended by this deed that the enjoyment of the estate granted should pass out of the grantor, so long as the hope or possibility of life continued. The express power retained by the grantor to contract any debts he might see proper to contract, and also to bind the estate for his torts done thereafter, is a reservation which is wholly nugatory unless the enjoyment of the estate remained in him. The effect of this instrument, in other words, was to clothe John E. DuBois with a naked legal title liable to be defeated by the power reserved to John DuBois to create liabilities ex contractu, and ex delicto, equal to the value of the property granted, and this is no more nor less than retaining the enjoyment of the property as fully as if no deed had been made. The management of the entire property, its conversion from one form to another, its sale, the appropriation of the proceeds thereof, unchallenged by the grantee, place the enjoyment thereof, within the meaning of the statute, in John DuBois, the grantor.] 23 It is no sufficient answer, in our opinion, to say that the change in possession and management of the estate did actually take place nine days before death terminated the life of the grantor. The testimony is, that when the actual change in the mode of conducting the business was made, death was daily awaited and expected. A transfer ostensibly made two years and more before, unaccompanied with a delivery of possession and control of the property and effects granted or alleged to have been transferred, until the grantor is confronted with death, is not such a conveyance as the law requires. A conveyance which parts with the possession, the title and the enjoyment, in the grantor’s lifetime, alone answers the demands of the statute. We do not decide that a sale bona fide in all its purposes and intentions, might not be made, and interrupted by sudden and unexpected death before delivery of possession which would be free of the collateral inheritance law, but the evidence of the intention of the parties would have to be clear. The learned counsel, Hon. George A. Jenks, in his argument, contended, that in order to make the property liable the grantor must have some estate or title remaining, and that if the deed of January 17, 1884, divested him of all title and estate, under the rules of construction as applied to deeds, in a controversy between the parties thereto, then no liability existed. But the answer to this is given by Mr. Justice Clark, in Reish v. Commonwealth, supra, in which he says, “ It is the value of the estate transferred which is liable to the duty, not the value of the interest or part remaining.” [We say further, that although a deed was made, which between the parties if standing alone would divest the grantor of all estate in the property granted, yet a parol agreement that the grantor shall enjoy the fruits thereof during life, or at the sufferance of the grantee, by which the grantee permits the grantor to enjoy tlie use and control of the property, mates the estate apparently granted liable to the collateral inheritance law.] 24 [Being of the opinion that it was pertinent and relevant for the commonwealth to show by parol that, notwithstanding the formal grant contained in the deed of January 17, 1884, the actual enjoyment of the property mentioned therein remained in the grantor, and that he did enjoy it until hope of life had ceased, we must conclude that the deed is ineffectual to pass this property clear of liability, and that to hold otherwise would be to defeat the plain provisions of the collateral inheritance law.] 25 We are convinced that it is against the policy of the law to say that a man may make, execute, and deliver a deed transferring all his property, and at the same time, for all practical uses, retain the exclusive control of it, as was done in this case, and then when hope of life no longer exists relinquish the control .and enjoyment of the property, and thus defeat the provisions of the statute. To so decide would in effect be repealing the law, or at least so nullifying its provisions as to leave it but a blot upon the statute book. In order that the appellant may have the opportunity to correct any error in our conclusions, we will answer the points presented by counsel, seriatim. Appellee’s points [inter aha] : 2. A deed or transfer by the decedent in his lifetime to a collateral, does not bar the right of the commonwealth to the 5 per cent collateral inheritance tax, if such deed or transfer was made or intended to take effect in possession or enjoyment after the death of the grantor. 8. Any deed which retains or appropriates the property to the beneficial use of the grantor during Iris life is such a deed. And the deed of January 17, 1884, from John DuBois to John E. DuBois is of that character. Answer: These points are affirmed.7 8 Appellant’s points [inter alia] : 1: An estate is only taxable when it passes from the owner, at the time, in the mode, and to the persons designated by the act of 1826 ; and when it passes or has passed by deed or contract, a part of such estate, to wit: its possession or enjoyment by limitations in the conveyance or some concurrent and accompanying instrument in writing, must have been withholden from the grantee until after the death of the grantor or bargainor. To make it taxable the death of the grantor must add to the estate already in the hands of the grantee, the possession or enjoyment which has been withholden from him. Answer: To the first point we make answer, that if it is intended by this point to say that in order to create liability under the collateral inheritance law, the enjoyment to the grantor during life must be reserved in the conveyance, or evidenced by a contemporaneous writing, then we must decline to answer as requested.1 2. The whole estate in the property mentioned in the conveyance passed out of John DuBois and became vested in John E. DuBois by the deed, if it was executed and delivered to him on January 17, 1884, by his uncle John DuBois. 8. That no" part or interest in the estate thus conveyed could be made to revest in John DuBois, the grantor, in any other manner than that provided for in his deed, or by such written instrument as is required by the act of March 21, 1772, 1 Sm. L. 389. Answer: The second and third points we decline to answer in the affirmative.2 3 4. If John DuBois bad at the time of his death no estate or interest which he could enforce by law in the property conveyed by him on January 17, 1884, the act of April 26, 1826, 9 Sm. L. 146, which provides for the payment of a collateral inheritance tax, has no application, and judgment should be entered in favor of the appellant and against the commonwealth as to the claim made against said property. Answer: The fourth point we decline to answer as requested. It is a simple question whether he did enjoy the use and control of the property, and not whether he had a legal right he could enforce as against the grantee.4 5. That John DuBois did not die seized or possessed of any of the real estate conveyed by him to John E. DuBois on January 17, 1884; therefore no part of such estate is subject to the payment of a collateral inheritance tax. Answer: The fifth point does not state the facts as they existed, and we decline to answer the point.10 6. That if the title of John E. DuBois to the property mentioned. in the deed referred to in the 2d, 4th and 5th points was complete during the life of the grantor, it would not be taxable. Answer: The sixth point we might decline to answer for the same reason as the fifth. As an abstract proposition of law, it' is true; but the finding of facts does not support the point and we decline it.11 8. That if the deed was executed and delivered without any fraud or mistake, by its terms the entire estate in the property therein mentioned became vested in John E. DuBois; that being so, no subsequent acts or declarations of either the grantor or grantee short of such acts or declarations as meet the full requirements of the act of 1772 could revest such an interest in the grantor as would subject property in the hands of the grantee to the payment of the tax. Answer: Denied.12 9. If the whole estate in the property mentioned in the deed passed from John DuBois and became vested in John E. DuBois on January 17, 1884, any subsequent arrangement between the parties, honestly made, by which John DuBois was authorized or permitted to use or enjoy the property during his life, would not subject the property to the payment of the tax. Answer: Denied, so far as it has application to this case.13 10. As possession and enjoyment are incidents to an estate in fee simple, the conveyance of such estate when executed, delivered and recorded in good faith, pass such incidents with the estate. To prevent these from thus passing, the condition so limiting the estate must, be annexed to the estate at the time of making it, and the mode of such limitation must meet the requirements of the statute of frauds and perjuries. Answer: Denied.14 11. If by the conveyance itself, unlimited as stated in 10th point, the grantee had the estate, possession and enjoyment of the real estate and property described in the deed in the lifetime of the grantor, such property is not subject to the tax. Answer: Denied.15 12. Where a legal right is conditioned upon or depends ■solely upon an act or acts which a man has a perfect legal and moral right to refuse or omit to do, he cannot be guilty of fraud upon any law which conditions or makes its claims to depend solely upon the performance of such act or acts, by his refusal or omission to perform said act or acts. The light to dispose of property is an absolute one; the owner in the exercise of this right, in so far as it is related to the right of the state to claim a collateral inheritance tax, is entirely free to select the persons to whom, the time when, the mode and the consideration for which, he conveys his property; and when he in his lifetime freely and fully conveys in a lawful manner his whole estate, the property thus conveyed is not subject to the payment of a collateral inheritance tax in the hands of the grantee. Answer: The twelfth point is affirmed as a statement of a legal right, but as it has no application to the case before us, it is denied.16 13. Where the possession or enjoyment of land is in one to continue during his life, who is not the owner of the title, it is a freehold and life estate in such person aud can only be created or founded upon an instrument in writing such as is required by the act of March 21, 1772, and there being no written evidence showing such estate for life to have been in John DuBois after his deed of January 17,1884, the land conveyed by him is not subject to the payment of a collateral inheritance tax in the hands of John E. DuBois his grantee. Answer: Denied.17 14. The real estate described in the deed of John DuBois to John E. DuBois, dated January 17, 1884, under the evidence, is not liable to collateral inheritance tax. 15. Neither the real nor personal property described in the deed of January 17, 1884, is, under the evidence, subject to collateral inheritance tax. Answer: The fourteenth and fifteenth points are denied.5 6 We therefore conclude that the appeal must be dismissed, and it is ordered, adjudged, and decreed, this 5th day of August, A. d. 1887: 1. That the appeal of John E. DuBois, from the assessment under the collateral inheritance law, bp and is hereby dismissed. 2. That the said John E. DuBois pay, or cause to be paid, without further delay, unto D. B. Fullerton, Esq., register and clerk of the Orphans’ Court, the further sum of $136,500 with interest thereon, at the rate of twelve per cent per annum, beginning with May 6, 1887. 3. That the said. John E. DuBois further pay, or cause to be paid, the costs of this appeal, and such fees as are legally taxable therein. Thereupon the appellant took this appeal, and assigned as error: 1-6. The answers to appellant’s points.1 t0 6 7, 8. The answers to appellee’s points.7 8 9. The 11th finding of fact embraced in [ ] 9 10-17. The answers to appellant’s 5th and 6th points.10 t017 18,19. The findings of fact embraced in [ ] 18 19 20. The exclusion of the testimony of Hon. Gr. A. Jenks.80 23-25. The portions of the opinion embraced in [ ] 23 to 25
121 Pa. 387Cross v. Tyrone M. & M. Co. (1888)
ERROR TO THE COURT OE COMMON PLEAS OE CENTRE COUNTY. No. 60 July Term 1887, Sup. Ct.; court below, No. 28 April Term 1884, C. P. On February 7, 1884, an action of ejectment was brought by J. R. Lowrie, trustee, by subsequent substitution, of the Tyrone Mining & Manufacturing Co., against James S. Cross, for a portion of a tract of land in Halfmoon township surveyed in the warrantee name of Richard Whitehead. The controversy is illustrated by the following sketch: The facts as they appeared at the trial on February 1, 1887, before Cummin, P. J. 29th judicial district, holding special term, are shown in the charge of the court, parts of which follow: The issue which you have been sworn to try, arises in an action of ejectment brought by the Tyrone Mining & Manufacturing Company against James S. Cross. The action was originally brought by J. R. Lowrie as trustee, but the title changed after the suit was brought, and the Tyrone Mining & Manufacturing Company having become the purchaser, it comes in as the plaintiff. The action is brought by this plaintiff to recover the possession of a certain tract of land in Half-moon township, being that part of the tract surveyed in the warrantee name of Richard Whitehead which lies west of the part leased to The Juniata Mining Company, Limited, bounded on the south by land in the warrantee name of Jacob Way, on the west by land of George Gates, and on the north by other lands of the plaintiff, containing 100 acres more or less..... The plaintiff, as you remember, showed among the first things the writ of ejectment, and that it had been served on this defendant, and that shows the defendant to be in possession. Then the plaintiff proceeded to show its title to the land described in the writ;. and this, you will remember, the plaintiff did by showing, first, the warrant and survey of this tract of land in the name of Richard Whitehead, and then by following that by sundry deeds, conveyances, and other evidences of transfer bringing the title of the tract in the name of Richard Whitehead down to the plaintiff. Then the plaintiff rested. That was all the plaintiff had to do; and if the case had stopped there, the plaintiff would have been entitled to the verdict. Then the defendant presents his side of the case. He does not claim that he owns any part of the Richard Whitehead tract, so there is no question as to the title of the Richard Whitehead; but the defence set up here is that the Richard Whitehead tract is located at an entirely different place, and that the land described in this writ is not included within the lines of the Richard Whitehead tract; and this, then, brings up the real question. The defendant then proceeds to show by his maps, surveys, and witnesses that the Richard Whitehead is located at an entirely different place. Then, the plaintiff again replies, calls its witnesses, and shows its maps and surveys tending to show that the tract is located where it claims: and thus you discover that the real point in this case is to find the true location of the tract in the name of Richard Whitehead. If you find that, you will have but little trouble in deciding the case. This, then, is a question of location; that is, a question of fact which the jury must determine from all the evidence; it is a question which the court has no power to determine. It must go to the jury; they are to find the facts in all cases; and the fact to be found in this case is, where, on the ground, is the true location of the Richard Whitehead tract..... Here we have to repeat what counsel on both sides have said to you that the hightest and best evidence of the location of a tract of land is the monuments found on the ground and which have been made for that particular tract. If you find them on the ground, that is the best evidence of the true location of the tract; and then it matters not what the calls are, what the lengths of the lines are, -nor what their courses are; you go from one monument to another, if you can find them; and that fixes the true location. [Of course many years have elapsed since these surveys were made, and it is not expected that the monuments then made on the ground are now to be found. This has occurred in many cases before, and hence a rule had to be established; and the Supreme.Court has laid down the rule that when you cannot find these monuments on the ground, which were made for the tract by the surveyor, you must go to the calls; because, as has been already stated to you by counsel, it was the duty of the surveyor, when he was directed to survey a tract, to go upon the ground and run and mark the lines. That was his plain duty; he did not always do it; and from that fact many troubles arose. No doubt much of this case arises out of the fact that the surveyor did not go upon the ground.] 4 As before stated, when you are unable to find the monuments on the ground, you next go to the calls. You find that the survey calls for a tract of land on the north, another on the south, another on the east and another on the west. If you cannot find the monuments on the ground, you take these calls, and between these calls you find the tract you are looking for; and you fix it by the tracts that are around it just as you often see in the sale of land by a sheriff. He will sell the farm bounded north by the land of A, east by the land of B, south by the land of C, and west by the land of D; and though there is no monument given, and no courses and distances, yet you can find the land. You do this by finding where these lands of A B C and D are; and the land that is between them is the land that is sold. The same rule applies in this case. You are not to look at or be governed by these calls, if you can find the monuments on" the ground that belong to the tract; it is only when you cannot find them that you go to the calls. Then if you cannot find the monuments on the ground, and there are no calls to govern the location of the tract, the next thing you can go to is the courses and distances. They are the lowest and weakest evidence, and you can only resort to the courses and distances when you cannot locate first, by the monuments, or second, by the calls. Then, of course, when you come to the courses and distances, there must bo some way for the surveyor to get on the true line, because he must have a starting point before he can begin to ascertain the true courses and distances. If you do not find monuments on the ground which enable you to locate the Richard Whitehead tract, then you go to the calls, as we have said. And here you will discover that there is an important matter to be considered ; and that is the date when the survey was made, because, of course, a survej' made in 1785 cannot call for one made in 1786 ; for the one made in 1786 had no existence at the time the other was made; so you find these calls to be related to something that was done before. This may be useful to you in endeavoring to get at the location of this tract. When you do not find monuments on the ground, take the entire map and look first at the oldest tracts that are there; they are fixed on the ground; then put on what was done there next, and then what was put on after that, and so on till you find everything that was done before the tract in question was located. Then, if it calls for any of these older tracts, you will have something to go by. Some points have been submitted by counsel which may, perhaps, as well be answered at this place, after which we will call your attention to some other matters. The counsel for the defendant requests the court to charge the jury as follows : 1 That the burden of proof is upon the plaintiff to satisfy the jury, by the weight of the evidence, that the land in dispute is embraced within the lines of the Richard Whitehead; and, unless the jury are so satisfied, the verdict must be for the defendant. Answer: That point is affirmed, so far as it relates to the title to the land, for it has long been established that the plaintiff must recover on the strength of his own title, and not on the weakness of his adversary’s. The defendant is in possession of the land in dispute, and the law permits him to remain there until some plaintiff comes into court and shows a better title.1 2. As the Richard Whitehead is a chamber survey calling for the Samuel Bryan and located to it, its location is to be determined by the location of the Samuel Bryan. Answer: That point was conceded by the counsel on the . other side, and is, of course, affirmed by the court. 3. As the Samuel Bryan is returned as including a cranberry swamp, it is important for the jury to ascertain from the evidence whether this part of the return is reasonably answered by the location contended for by the defendant; and if it is, and is not answered by the plaintiff’s location, then this is a circumstance of considerable weight to- be regarded by the jury in determining its true location. Answer : This point is refused, because it is for you to determine what importance or weight you will attach to the evidence relating to the cranberry swamp; and you will also determine whether the survey returned does include the cranberry swamp, under all the evidence, for, in looking at this survey, the calls on the draft are not the same as those on the written part of it. The official survey of Samuel Bryan, in the written part, sets forth that this is a tract of land situated in or near the Halfmoon creek, .adjoining lands of William Burgess, William Weiser, and others, including a cranberry swamp. The draft, which appears above this writing, contains no call for any land in the name of any of these parties, nor is there any mark upon the draft as to where the cranberry swamp is, so that the matter must go to you to be determined. It is not one which the court can determine.2 4. The location of an older survey is not in any way to be controlled or affected by the call of a younger survey made many years after by a different surveyor, and therefore the call of the Elliot for the Bryan cannot in any way affect its location. Answer : That point is affirmed as a general principle. A junior survey cannot affect or disturb the location of a senior; but it does not follow from that, that in proper cases junior surveys may not be evidence to assist the jury in their endeavor to find the location of a senior survey which cannot be fixed by its own corners, calls or lines. One theory of the plaintiff in this case is that there is nothing found on the ground which enables the jury to fix the location of the Samuel Bryan by its own corners, calls or lines , and if you find that to be the situation in this case, then we say to you that the location of junior surveys is evidence for your consideration in endeavoring to find the true location of the Samuel Bryan tract.5 5. The highest evidence of location is the original marks found on the ground, called for in the return of the deputy surveyor; and if the jury believe that the marked trees testified to by the different surveyors and the cranberry swamp are original monuments, or marks, of the Samuel Bryan survey, then this fixes the location of the Bryan; and the verdict must be for the defendant. Answer : That point is refused because it is the duty of the jury, under all the evidence in the case, to find as a fact the true location of the land in dispute.3 Now there are different kinds of evidence before you in this case. You have the testimony of witnesses, the testimony of surveyors who have been upon the ground and surveyed, not only the tract of land in dispute, but many other tracts of land adjoining, all with a view of tending to sustain their particular theory of the case ; and, when surveyors who have been upon the ground and made these surveys come into court, they are permitted to give an opinion, the result of their judgment, about the true location. So you find that the defendant’s surveyors express the opinion that they located this Whitehead tract on the defendant’s map correctly; and, of course, that excludes the land of the plaintiff. On the other hand, you have the testimony of the plaintiff’s surveyors who have gone over this ground; and they give it as their opinion that their location is correct, and that this land is in the Richard Whitehead. In addition to this you have the blocks of wood taken from the trees that have been found. As it happens in this case, all the blocks in court relate to but one tree. Although the witnesses testified yesterday that they had taken a block out of the oak and counted it, yet the block is not produced in court for your examination. The blocks we have here are taken from the pine tree ; and there is a dispute about the count, the different surveyors finding different numbers of growths in the blocks. The surveyors for the defendant maintain, on their side of the case, that their block shows that the tree from which it was taken was a tree of the original survey of this tract, for, they say, it counts to the proper time. On the other hand, the witnesses on the other side produce another block, which they testify was taken from the same tree and which they declare counts three or four years more. They also count the block which the defendant produces in court and declare that their count of it shows that it was marked three or four years before the time of this survey. Other witnesses are called who were not on the ground and know nothing about the property in dispute here, but whose attention was only called to the blocks for the purpose of counting them, and they testified that these blocks show the marks to have been made three or four years before this tract was surveyed. All this is matter for you to consider and weigh in your endeavor to find out whether the tree from which these blocks were taken was one of the original trees of this line. [Then you have the original surveys. When the surveyor-general or his deputy, or at a later period the county surveyor made a survey in pursuance of a warrant duly issued, it was luis duty to go upon the ground, run out the tract, mark its lines and corners and make a return of it in which he gave a plot of the tract as he ran it with such description as might be necessary to identify it; and this was then returned to the land office. Here you have that return, along with a bundle of these warrants that were returned from year to year. These are important papers and they are of great value to the jury in getting at tlie true location of a tract of land, because you have here the work that was done many years ago, before any party present in court possibly was interested. Upon these official surveys, you find the marks on the ground, the corners that are called for.] 6 [Usually the calls refer to the warrantee name of some adjoining tract, but this is not always so. Often the surveyor gives the name of the person who happens to own the land adjoining, while the warrantee name may be an entirely different one.] 7 Then, in addition to that, you have official certified copies of connected tracts of land. There is one put in here showing the London tracts of land and other lands, showing how they stand with relation to each other...... You have heard the testimony of the witnesses and you will have all these drafts and maps with you, and being governed by the law as we have stated it, you will from all the evidence endeavor to find the true location of the Richard Whitehead tract. If you find the land in dispute to be within the lines of the land of the plaintiff, then let your verdict be for the plaintiff, for the land described in the writ; but if the land in dispute is not within the lines of the plaintiff’s land, then let your verdict be for the defendant. These are all the instructions we have to give. You will have to settle the facts. The jury found for the plaintiff for the land described in the writ. A motion for a new trial was entertained, rule granted and discharged, when, judgment having been entered on the verdict, the defendant took this writ, assigning as errors : 1, 2. The answers to defendant’s 1st and 3d points.12 3. The answer to defendant’s 5th point.3 4. The part of the charge embraced in [ ] 4 5. The answer to defendant’s 4th point.6 6. 7. The parts of the charge embraced in [ ] 6 7
121 Pa. 401Drhew v. Altoona City (1888)
ERROR TO THE COURT OE COMMON PLEAS OE BLAIR COUNTY. No. 59 July Term 1887, Sup. Ct.; court below, No. 48 January Term 1883, C. P. On November 23, 1882, P. F. Drhew and G. T. Bell, trading as Drhew & Bell, brought an action of covenant against the city of Altoona. The plea was, covenants performed absque hoc, and payment. At the trial on January 28, 1884, one of the plaintiff firm having died since the suit was brought, the material facts appearing were as follows: On August 11, 1880, at a special meeting of city .council, a resolution was passed that the committee on water pipe be and they were thereby instructed to purchase water pipe, hydrants, and materials needed for the laying of the same, in such quantities and at such times as they might deem proper, said purchase not to exceed in the aggregate the sum of $15,000. On October 2,1880, an ordinance was enacted “ authorizing a loan of $60,000, for the building of dams for water storage, and for the purchase and laying of water pipe ” for the use of the city, and it was provided that all moneys derived from the sale of the bonds authorized should be used “for the building of reservoirs for the storage of water for the use of said city, and for the purchase and laying of water pipe through the city, and for that purpose only.” On August 3, 1881, the plaintiffs entered into a sealed contract with the city to furnish all the material and perform all the labor necessary to complete in the most substantial and workmanlike manner, to the satisfaction and acceptance of the engineer of said city, the reservoir and storage dam at Kittanniug Point; the work to be finished as described in the specifications, made a part of the contract, and agreeably to the directions received from the engineer in charge, or his assistants, on or before August 31, 1882. Certain provisions of the contract were as here follow: The quantities exhibited to the contractors at the time of soliciting proposals for the work herein contracted for are necessarily only approximate ; they furnish only general information, and will in no way govern or affect the final estimate, which will be made out on the completion of the work from actual measurements and established facts not determinable at the time of letting the work. On or about the last day- of each month during the progress of this work, an estimate shall be made of the relative value of the work done, to be judged of by the engineer, and eighty-five per cent of the amount of said estimate shall be paid to the party of the first part on or about the first day of each month. And when all the work embraced in this contract is completed, agreeably to the specifications, and in accordance with the directions and to the satisfaction aud acceptance of the engineer and city council, there shall be a final estimate made, of the quality, character and value of said work according to the terms of this agreement, when the balance appearing due to the said parties of the first part shall be paid to them within thirty days thereafter, upon etc..... It is further agreed and understood, that the work embraced in this contract shall be commenced within five days from this date, and prosecuted with such force as the engineer shall deem adequate to its completion within the time specified, and if at any tipie the said party of the first part shall refuse or neglect to prosecute the work with a force sufficient, in the opinion of the said engineer, for its completion within the time specified in this agreement, then, and in that case, the said engineer in charge, or such other agent as the engineer shall designate, may proceed to employ such a number of workmen, laborers and overseers as may, in the opinion of the said engineer, be necessary to insure the completion of the work within the time hereinbefore limited, at such wages as he may find it necessary or expedient to give;.....The engineer in charge shall have the right to cause the stoppage of the work at any time when in his opinion the best interests of the city shall require it, and the work shall not be recommenced without the permission of the engineer in charge..... Also that any disagreement or difference between the city and the contractors upon any matter or thing arising from these specifications or the drawings to which they refer or to the contract for the work or the kind or the quality of the work required thereby, shall be decided by the engineer in charge, whose decision and interpretation of the same shall be considered final, conclusive and binding on all parties..... Every part of the work is to be executed under the direction and subject to the approval of the engineer in charge, and it is understood that in all questions or matters relating either to the work or the contracts for the same, the decision of the engineer in charge shall be final and conclusive and without appeal. And the said party of the second part doth promise and agree to pay to the said parties of the first part: For grubbing and cleaning a site of reservoir, per acre....... $30 00 “ material placed in embankment, per cubic yard........ 32 “ earth excavation.............. “ “ “ ........ 35 “ rock excavation.............. “ “ “ ........ 75 “ brick laid in cement mortar per 1,000................. . 16 00 “ puddle laid in cement mortar, per cubic yard........... . 1 15 “ broken stone top dressing-embankment, per cubic yard. . 1 00 “ paving in waste weir................. “ “ “ . . 2 00 “ cut stone masonry in pier............ “ “ “ . , 10 00 “ cut stone masonry in overflow........ “ “ “ . . 10 00 “ rock range masonry,......... “ “ “ . . 10 00 “ rubble masonry..................... “ “ “ • 3 75 “ rip-rap.............................. “ “ “ • 1 25 “ hemlock plank per 1,000 in place..................... 23 00 “ excavation of ditch from overflow, per cubic yard...... 40 “ building sewer per foot............................. 4 50 In witness whereof .... Under said contract the work was begun and prosecuted for fifteen months, the contractors receiving monthly estimates, deducting the 15 per cent to be retained. The fifteenth estimate was made on November 1,1882, and was as follows: For clearing 35 acres, at $30..........................$ 1,050 00 “ extra work on test holes.......................... 54 25 “ extra work hauling stone off slope................. 94 16 “ 33,178 cubic yards earth excavation, at 35 cents...... 11,612 30 “ 32,784 cubic yards embankment, at 32 cents....'..... 10,490 00 “ 248.5 cubic yards ditching, at 40 cents.............. 99 40 “ 11,067 cubic yards rock excavation, at 75 cents,...... 8,300 25 “ 1640 cubic yards puddle, at $1.15.................. 1,886 00 “ 396 cubic yards cut masonry, at $10................ 3,960 00 “ 1170 cubic yards rubble masonry, at $3.75........... 4,387 50 “ 62,000 bricks laid at $16.......................... 992 00 “ 7 lineal feet of sewer, at $5.75..................... 40 25 “ 606 cubic yards rip-rap, at $1.25................... 757 50 “ 210 cubic yards broken stone, at $1................. 210 00 Total..............................................$43,934 49 Less 15 per cent................................ 6,590 17 $37,344 32 Less previous pay.................................. 32,670 63 Balance due.....................................$4,673 69 For the amount of this balance an order was drawn in favor of the contractors upon the treasurer of the water fund and presented for payment on November 7th, following. The treasurer informed Mr. Drhew, who presented the order, that the water fund, which had originally been $60,000, was exhausted except the sum of $2,410. The order was then returned and three orders were given in place of it, one for $2,410, and two others, for $1,090 and $1,113.69, respectively. The first of these orders, that for $2,410, was paid, the others remained unpaid. The contractors continued under the contract until November 8, 1882, when they stopped, disposed of their implements, horses and other property, and formally abandoned the work. The city engineer was then requested by the contractors to furnish a final statement showing the amount of work, etc., done, and the sum due the contractors to the time of their quitting work. This the engineer declined to do, and the contractors thereupon brought this suit. Subsequently, on December 15,1882, the following final estimate was made by the engineer, including the work, etc., done to November 8th: ALTOONA WATER FUND. 1882. To DRHEW & BELL, Dr. Deo. 15, To 30 acres of clearing at $30.................... $ 900 00 “ “ Extra work on test holes...................... 54 25 “ “ “ “ hauling off slope.................. 94 16 “ “ 18,063.4 cubic yards earth excavation at 35c.... 6,322 36 “ “ 14,779.1 cubic yards of loose rock excavation at 50c...'...................................... 7,389 55 “ “ 5,201.6 cubic yards solid rock excavation at 75e. 3,901 20 “ “ 2,701.6 cubic yards of above, extra pay for picking, 55c.................................... 1,485 88 “ “ 26,817.9 cubic yards embankm’t at 32c......... 8,581 73 “ “ 248.5 cubic yards ditching at 40c............... 99 40 “ ' “ 1,846.3 cubic yards puddle at $1.15............ 2,123 25 “ “ 1,154.1 cubic yards rubble masonry at $3.75.... 4,327 87 “ “ 391.1 cubic yards cut masonry at $10........... 3,931 00 “ “ 62,000 bricks laid at $16 per M........ 992 00 “ “ 13 lineal feet of sewer at $5.75................ 74 75 “ “ 599.7 cubic yards rip-rap at $1.25............. 749 62 “ “ 210.2 “ “ broken stone at $1........... 210 20 Total ...........................................$ 41,237 22 Less orders granted................................. 37,344 32 Balance 3,892 90 The contentions of the parties appear in the charge of the court, Dean, P. J., parts of which were as follows: Up to this time [November 8, 1882] the plaintiff alleges, the contractors had faithfully kept the covenants on their part; had prosecuted the work diligently and had done it well; and, while they had not finished it on or before August 81, 1882, as specified in the agreement, the plaintiff alleges this was owing to a large increase in the quantity of the work over that specified or intended at the time the contract was entered into, by reason of deeper 'excavations and a change in the slope of the embankment, which largely increased the amount of work to be done. So far as the evidence shows, no complaint was made by the city because of this delay; the work was conducted on through September and October under the city engineer in charge, and estimates were made by him as if there had been no breach of the contract in this particular on the part of the contractors. The plaintiff alleges that the city having delayed the work and treated the contractors as if they had not failed in the performance of their part of the contract in this particular, the defendant has no right to insist on the completion of the contract within the stipulated period. If yoii find that there was no failure; that the contractors kept their covenants in this particular; that any failure which did occur was caused by the enlargement or increase of the work under the direction of the city engineer, and the (May was consequent upon that, that would excuse performance on the part of the contractors within the stipulated time. Or if you find that the defendant after August 31, 1882, went on and treated the contractors as if no advantage would be taken of the failure to complete the work on or before that date, you may find from the conduct of the defendant that there was a waiver on its part of strict performance in this particular; and the plaintiff could, so far as that part of the contract is concerned, claim payment under it..... The defendant covenanted to pay, on or before the first day of each month, 85 per cent of the estimate of the preceding month made on or before the last day of the month. Fifteen per cent was to be retained as security for the faithful performance of the contract on the part of the contractors; and fifteen per cent of the estimates up to the time of the making of the fifteenth estimate had been retained accordingly. The evidence is undisputed that the defendant did not pay $2,263.69, the amount of the two orders spoken of, of the amount due for October. The city did not pay because it had not the money. It is conceded that the city did not pay this amount because the payment of the order for $2,410 had taken the last of the $60,000 which had been provided for the purpose of building the reservoir and laying pipes. The legal power of the city to replenish this fund was exhausted. This was not a temporary interruption of payment, occasioned by delay'in the collection of the taxes or other like causes which time might have cured; it was a barren treasury without hope of fruitfulness in the immediate future. The plaintiff alleges that this failure of the defendant resulted in. pecuniary embarrassment to the contractors; that they were forced to pledge the dishonored orders for temporary loans to meet claims for labor and other debts incurred in the prosecution of the work under the contract and that, under the circumstances, they were unable to further prosecute the work. . If you find the facts alleged by the plaintiff, then this failure of the defendant to keep its covenants relieved the contractors from the further prosecution of the work under the contract, and they had the right to bring suit to recover whatever damages the defendant is legally answerable for under the contract in evidence. The law does not require them, under such circumstances, to go on with the work and.complete it before a suit can be sustained. The plaintiff is entitled to recover the value of whatever work the contractors performed under the contract up to the time it was broken by the defendant. This value is to be ascertained in the mode and at the prices settled in the contract. We have read to you the prices the contractors were to get for the different kinds of work to be done by them. You will notice that by the contract, as it was read to you, monthly estimates were to be made by the engineer..... The estimates are matters relating to the value and quantity of the work under the contract, and his decision is embodied in the estimate. Every month he made an estimate, relatively of course to the final one which was to be made on the completion of the work. Relative estimates were to be made and his decision was to be final and conclusive as to them, until the final estimate was made. The monthly estimates which the engineer made, have been read to you; they Avere made for. some fifteen months, and number from one to fifteen inclusive, commencing with August 2, 1881, and ending with November 1, 1882, making a total value of $43,934.49. Another estimate, including the work done between the 1st and 8th of November, 1882, was made by him, in which there Avas included the entire work done from the commencement t© the conclusion of the work, which amounts, in all, to $41,237.26, or a difference of $2,697.23, being that amount less than the aggregate of all the estimates up to the first of November, with the eight days in November added. The contract provided for an estimate to be made each month approximately of the amount and value of the work done each month with relation to that done before. The difference of $2,697.23, seems to arise from the following items:..... The plaintiff alleges that the last estimate, called “ The Final Estimate,” was in no sense an estimate under the contract, and is not as conclusive as to the judgment or decision of the engineer, as Estimate No. 15; that it was made after the city had broken its covenant and forced the contractors to abandon the work, was not made in their presence or delivered to them, and that the engineer refused to make it at Mr. Drhew’s request. We instruct you, that, as the estimate was made within a reasonable time after the work stopped, it must be treated as made in pursuance of the contract. It was not necessary that it should be made in the presence of the contractors-; nor was it necessary, under the contract, that it should bo delivered to them. There is evidence here tending to show that the engineer declined to make it when requested by Mr. Drliew, but that he did make it to satisfy the other party to the contract. There is also evidence that the president of the council had notice that the contractors had stopped, or intended to stop, the work. If the engineer was requested to make an estimate and declined to do so, the contractors could institute suit; but they could not thereby deprive the city of the judgment of the engineer in estimating the amount of work done. The work did not stop because of any neglect of the engineer; .... But the estimate was made by the city engineer and delivered to the defendant. It was made, too, as he testifies, in pursuance of the contract; it is of such weight, we instruct you, as any other estimate made by him, in view of the evidence here. . . . . The contract has but one classification of rock excavation; it says 75 cents a cubic yard. The witnesses of both the plaintiff' and defendant agree that in excavations there are generally four classifications, solid rock, loose rock, hard-pan, and earth. The plaintiff alleges that there is not any earth here classified as rock at 75 cents per cubic yard, under this contract; or rather that all kinds of rock should be classed as rock whether loose, solid, or harder than common earth excavation. The defendant alleges that everything not solid rock should be classified as common excavation. There is nothing in the contract which warrants us in saying that either is right. From the evidence there were four classes of excavation, though but two in the contract, rock and earth; but the contract provides that “ any disagreement or difference between the city and the coir tractors upon any matter or thing arising from these specifications, or the drawings to which they refer, or to the contract for the work, or the kind or quality of work required thereby, shall be decided by the engineer in charge, whose decision and acceptation of the same shall be considered final, conclusive, and binding on all parties.’’ He has, in his final estimate, decided that this excavation shall be classified as loose rock at 50 cents per cubic yard, 14,774.1 'cubic yards; and that there shall be allowed extra for picking, instead of blasting, 2,701.6 cubic yards of a harder substance, at the rate of 55 cents per cubic yard; and so far as the classification is concerned, the decision of the- city engineer must control in the absence of plain mistake or fraud; as it must also as to quantity..... As a general rule when one party to a contract, before the completion of it, breaks his covenant, he is answerable in damages to the other party, not only for the loss sustained by the sudden stoppage of the work, such as loss of material, depreciation in the value of machinery, etc., but also for the actual profits which he would have made, had the contract been completed as originally intended. This rule will apply to natural persons or private corporations ; but it does not follow that it applies to municipal corporations such as the city of Altoona, under the circumstances here in dispute. The people constitute the municipality; the council, mayor, and other officers are but its agents through whom it acts. The city’s power to act is fixed and circumscribed by law. The extent of its indebtedness, and necessarily the extent of its expenditures, are limited by law. Here it is conceded that before this contract was made, a loan to the amount of $60,000 had been negotiated; the money was either in the treasury or very soon would be ; and, whether this loan was an increase of the indebtedness of the city beyond the legal limit or not, it is not disputed that there could be no further increase of the debt by law for any purpose. This loan, by resolution of council, was made for the express purpose of building water reservoirs and laying pipes. No definite division of the fund for the two purposes was made. There was no legal declaration on the part of the city as to how much should be appropriated for one purpose and how much for the other. Fifteen thousand dollars was, by resolution, appropriated for water pipes; but there was no declaration that this was all that would be appropriated for such purpose, or that $45,000 was to be appropriated for the reservoir. Here was $60,000 for the reservoir and pipes, subject to future appropriation of council in such amounts as they saw proper. The council might legally have appropriated $10,000 to cover the expenses of purchasing and laying the pipes and $50,000 to the building of the reservoir; it might have appropriated one half of the $60,000 to the reservoir and the other half to the pipes; or it might legally have increased the $15,000 appropriated to pipes, to $20,000. If it had, what was left would have been all that it would have afterwards expended for work on the reservoir. Drliew & Bell and all other persons contracting with the city of Altoona are bound to know the law which limited the debt of the city...... This may seem a harsh rule in this particular instance, but it is the law; the plaintiff might, perhaps, have provided •against it by a stipulation in the contract, requiring the city to set apart a fixed portion of the $60,000 for the payment of the work of the reservoir under the contract. The council, perhaps, would have had the right, by ordinance, to divide the fund and thus make the city answerable to the extent of a definite portion of it; but there is no such stipulation in the ■contract; and we instruct you that up to the time they had notice that the fund was exhausted, which was on the 7th or 8th of November, when they presented their order to Mr. Lloyd, they are entitled to be paid whatever was due them under the contract. And we further instruct you that they were bound to assume, when they took the contract, that such a contingency might happen at any time, during the progress of the work, that they might get notice that the fund was exhausted ; and they cannot here recover for any loss which they were bound to assume might happen without any illegal act or wrong whatever, and which could only be prevented by raising money illegally. They can recover no damages arising from the sacrifice or depreciation of materials or implements, and nothing for profits which they might have made, had they completed the work ; and such seems to have been the view of the parties at the time they made this contract, for it is stipulated that the engineer in charge shall have the right to cause a stoppage of the work at any time, when in his opinion the best interest of the city shall require it. The engineer did not stop the work, but the city did, by notifying the contractors that there was no more money with which to go on. We say to you that under the instructions we have given you the plaintiff cannot recover more than for the work actually done, estimated by the engineer in the official estimate, deductiug the orders. If the orders had been paid there would have been a balance of $3,892.99, to which add the orders unpaid and pledged by Drhew, $2,263.69. The plaintiff has a right to recover also for whatever materials the contractors left on the ground which the city appropriated to its use, amounting, as it is claimed the evidence shows, to $320.54; 'this amount however, is for your determination; leaving the actual amount or balance, as the plaintiff claims, of $6,366.83. .....This sum, $6,366.83, is all of the plaintiff’s claim that can be submitted to you subject to the evidence on the part of the defendant. The defendant claims that there is nothing due. The plaintiffs have requested the court to charge : 1- That if Mr. Seabrook, the city engineer, was requested by Patrick Drhew to make an estimate of the work done by the plaintiffs up to November 8, 1882, and he refused so to do and to decide upon the amount due the plaintiffs, they had the right then to bring this suit. .Answer: The evidence shows, if John Patton, Thos. Sea-brook and Frank Molloy be believed, that Drhew, immediately after the default in payment on the October estimate, notified the president of council of their intention to abandon the work, and also requested the engineer to estimate the work done from the 1st to 8th of November. It was the duty of the city, when notified of the abandonment of the contract, to have the estimate made; it was the duty of the engineer, when requested, to make the estimate; the contractors were not bound to defer suit for whatever was legally demandable under the contract, because the engineer delayed or refused to perform promptly the duty imposed on him .under the contract ; their right to bring suit did not depend on his con- venience or inclination. They waited until November 23d, fifteen days after the default in payment. If you find they requested the engineer to make an estimate of these eight days’ work and he neglected or refused to make it, the suit was not prematurely brought, and the point is affirmed. While the point is affirmed, you are to give to the final estimate made on December 15th the same effect as if made before suit was brought; the bringing of the suit did not divest him of his functions under the contract, even though he delayed in performing them.1 2. The estimate of November 1, 1882, is conclusive of the amount due the plaintiffs for work done to that date, and the plaintiffs are entitled to a verdict for the amount due on said estimate, together with such further sum as may be allowed by the jury for work done from the 1st to the ,8th November, if the defendant wrongfully withheld payment of said estimate on November 8th, and thereby obliged the plaintiffs to stop their work. Answer: Denied.2 3. If the court declines the first point, then, under the same conditions, the estimate of Mr. Seabrook made for the city on December 15, 1882, is conclusive on the city as to the quantities of work done, and the plaintiffs are entitled to recover the same, according to the contract price named in the contract. Answer: Denied.3 4. If the court decline the last point then the estimate No. 15 should be taken as showing the true amount due the plaintiffs for work done to its date, unless the testimony clearly shows that the amount thereof was not due. Answer: This point is denied. Under the contract, the final estimate shows the amount due, in the absence of fraud or palpable mistake.4 5. That the estimate of Mr. Finley, based not upon actual measurement, but on supposed cuttings, represented to him by Mr. Kiefer as having been claimed by Drhew & Bell, should not be permitted to overthrow the estimate of quantities, made by Mr. Seabrook and corroborated by Mr. Thompson, if they were made on actual measurements. Answer: This point is denied; the testimony of Mr. Finley is for your consideration.5 6. By the terms of the contract the plaintiffs are entitled to 75 cents per cubic yard for rock excavation, and the jury must allow that price for all excavation denominated rock, whether the same be loose or solid. Answer: This point is denied.6 6^. If, in the understanding of contractors for works of improvement, a single classification of rock includes loose rock and solid rock, then the plaintiffs are entitled to 75 cents per cubic yard for both classes and the estimate of Mr. Seabrook of December 15th, and that of Mr. Thompson of October, 1882, must be corrected in the value of the loose rock, so as to conform to the contract price of rock, viz.: 75 cents per cubic yard. Answer : This point is denied.61'8 7. If the defendant failed to pay the plaintiffs the estimate of November 1, 1882, and the plaintiffs were thereby forced to .stop the work, then the plaintiffs are entitled to recover damages for said breach, in addition to the amount that may be found due for work done. Answer: This poirff is denied.7 8. The measure of damages sustained by plaintiffs is the profit they would have made on the work if they had been permitted to proceed with it till its. completion. Answer: This point is denied.8 9. If the court should decline the last point, then the plaintiffs are entitled to an allowance for the depreciation of the houses, wagons, implements and other items of their plant required for the prosecution of their work, so far as losses accrued from "the defendant’s breach. Answer: This point is denied.9 10. If the work was done by the direction of the defendant’s engineer, the plaintiffs are not responsible for defects, if any exist in the work, open to his inspection. Answer: The plaintiffs are responsible for no defects of plan determined on by the city or its engineer, but they are responsible for defective work, or for defective material of the kind specified in their contract. They undertook to do all the work in a. workmanlike manner, according to the plans and specifications. Even if through incompetency or dishonesty, the engineer estimated monthly defective work, and allowed for it, the city ean here show by proper evidence the defects and claim damages for it. The point is denied.10 The verdict was in favor of the plaintiffs for $6,940.83 damages. Judgment having been entered on the verdict, the plaintiffs took this writ, assigning as errors : 1-5. The answers to plaintiffs’ points.1405 6, 6j. The answers to plaintiffs’ points.6,61-8 7-10. The answers to plaintiffs’ points.71010 11. The portion of the charge : “ This sum, $6,366.83, is all of the plaintiffs’ claim that can be submitted to you, subject to the evidence of the defendant.”
121 Pa. 424McCahan v. Wharton (1888)
ERROR TO THE COURT OF COMMON PLEAS OF HUNTINGDON COUNTY. No. 369 January Term 1888, Sup. Ct.; court below, No. 4 August Term 1885, C. P. To tbe number and term in the court below, John McCahan and Thomas S. McCahan brought an action of covenant against Henry S. Wharton and F. H. Lane, for the recovery of the minimum royalty or rental payable under an ore lease. The narr was not printed in the paper books. The plea, as indicated, was “ covenants performed,” etc. At the trial on December 23, 1887, the lease shown, dated February 1, 1884, of a tract of 440 acres of land near Birmingham Station, Blair county, gave from the plaintiffs, as lessors, to the defendants, as lessees, the exclusive right and privilege for ten years to prospect for, dig, mine and ship iron ore, on and from the said tract, for the term of ten years, under covenants, on the part of the lessees, to prosecute vigorously the work of digging and prospecting for ore, and, when ore was found in sufficient quantities to justify the shipping of the same, to work the said mines to their utmost capacity, and to pay 50 cents per ton for each ton shipped, the royalty in no event to be less than $1,200 for each and every year. It was also provided that, if the lessees did not quit possession and surrender the leased premises on or before July 1, 1884, the very act of their refusal or neglect so to surrender, was to be an agreement on their part that there was a sufficient quantity of ore on said property to pay the royalty of $1,200 on February 1, 1885. The provisions of the lease are fully set out in the charge of the court below. Having put the lease in evidence, the plaintiffs followed by testimony that previous to the bringing of the suit the lessees had had nobody on the land to prospect for ore and had never taken out any ore. On the part of the defendants, evidence was adduced to show, in substance, that in the spring of 1884 the lessees made several examinations of the leased lands and, finding indications of but little ore, concluded they were not justified in making further investigations, and that on June 13, 1884, a notice was mailed to the lessors that the lessees surrendered the lease. Called on cross-examination, the plaintiffs denied, the receipt of the notice alleged to have been sent by mail, but one of them, Thomas McCahan, admitted, in reply to questions by the court, that Mr. Woods, of Woods & Taylor, attorneys and 'real estate agents, by. whom the lease had been negotiated and prepared for execution, had told him that a notice had been served upon him (Mr. Woods) that the defendants had surrendered the lease. The defendants called John Fulton, and proposed to prove by this witness and others who were familiar with the explorations for iron ore in that section of Pennsylvania, that they had been upon the lands embraced in the lease in evidence, had examined them with more or less thoroughness, and that, in their judgments, there was no ore upon the land which would justify mining or the expenditure of money in an effort to develop them. The offer was objected to, (1), because it was mere expert testimony, (2), because it was not proposed to show that after exploration, there was a failure to discover ore. By the court: The witness may state what examinations he has made upon this land and what indications of the presence of ore he there found. As to the judgment of the witness, we will rule upon that question after we hear his testimony as to the knowledge and the extent of his investigations.8 The testimony of the witness supported the offer. Samuel G. Isenberg, called by defendants : Mr. Speer: I propose to show by the witness that he is acquainted with iron ore lands, and has been for many years prospecting for iron ore in this neighborhood and developing them, and that he was called upon to go upon the lands in suit for the purpose of examining and determining whether or not in his judgment there was any iron ore upon that land, and whether there was any iron ore there in such quantity and such condition that would justify its mining. That in response to this request he did go upon this land at different times and make examinations, and the result of such examinations is to satisfy him that ore is not upon the land in such quantities or in such quality as to justify its mining. Mr. Petrikin : Plaintiffs’ counsel object to the offer for the reason that in the articles of agreement is contained the following clause: [reciting portions of the section next to the last in the agreement copied into the charge of the court, post]. By the court: Taking that entire section in the agreement, which is partially incorporated in the objection, into consideration, its construction being for the court, we arc of the opinion that this agreement casts the burden upon the defendants of showing the non-existen'ce of iron ore upon the premises, and that the true construction of the agreement is in that respect, notwithstanding this clause in the agreement, not conclusive of the existence of the iron ore. The expression occurs three times in this section; twice it is repeated as being an acknowledgment of the presence of iron ore in sufficient quantity, but that does not prevent the defendants from showing in the way of defence that iron ore does not exist in the premises ; therefore we admit the evidence and seal a bill for the plaintiffs.9 The testimony of this witness supported the offer. The case being closed on the evidence, the court, Fukst, P. J., charged the jury as follows : This is an action of covenant brought by John McCahan and Thomas S. McCahan, plaintiffs, against H. S. Wharton and F. H. Lane, defendants, to recover damages for the failure to pay the royalty on 2500 tons of iron ore, which plaintiffs claim to be due on articles of agreement existing between them, on February 1, 1885, with interest on the same from the time it was due and payable. There are other covenants in the agreement, but in this suit the claim is only for the first year’s royalty of $1,200 on 2500 tons. [In order that you may clearly understand the instructions of the court, we will call your attention to the important portions of this article of agreement ; the entire agreement, however, is for you, and it will be carefully read and considered by you in the jury room] 1 By the agreement offered in evidence, John McCahan and Thomas S. McCahan agreed as follows : That the said John McCahan and Thomas S. McCahan for the consideration hereinafter mentioned, do lease and let unto the parties of the second part, Henry S. Wharton and F. H. Lane, the iron ore right, together with the exclusive right and privilege to prospect for, dig, mine and ship, on and from all that certain tract of land, situate on the line of the Penn. Kailroad, near Birmingham Station, Blair county, Pa., containing 440 acres more or less. It is further agreed that this lease is to be for the term of ten years from the 1st of February, 1884, and for such longer time, after the expiration of the said ten years, as both the said parties or their heirs, executors, administrators or assigns may agree, and at royalties not to exceed the royalty herein stated. In consideration whereof, the said parties of the second part, agree to push on and prosecute vigorously the work of digging and prospecting for iron ore, on the above mentioned premises, and just as soon as iron ore is found in sufficient quantities to justify the shipping of the same, then the parties of the second part agree to work the said mines to their utmost capacity, and they agree to bind therdselves, their heirs, executors, administrators and assigns, and each of them, to pay to the said John Mc-Cahan and Thomas S. McCahan, their and each of their heirs, executors, administrators and assigns, the sum of 50 cents per ton, for each and every ton of iron ore mined and shipped from the above mentioned premises, said royally of 50 cents per ton to be paid in monthly installments and in the following manner, viz.: one half to John' McCahan, his heirs or assigns, and the remaining one half to Thomas S. McCahan, his heirs or assigns; and the said parties of the second part further agree and bind themselves, their heirs, executors, administrators or assigns, to thoroughly develop the iron ore deposits on the above described premises, and in ease sufficient iron ore be found, that then the mining and shipments of iron ore shall not be less than 2500 tons per year; and that the royalty, if sufficient iron ore be found, shall in no event be less than $1,200 for each and every year during the continuance of this agreement. And it is further agreed that, on the 1st day of February of each and every year during the continuance of this lease, there shall be an annual settlement between the parties of the first part and the parties of the second part of this agreement, and if the royalties paid during the year shall not amount to the sum of $1,200, then the difference between the sum of $1,200 and the monthly installments of royalties paid during the year, shall immediately become due and payable; one half of which shall be paid to John McCahan, and the other half to his brother Thomas. It is further understood and agreed, that if the parties of the second part, their heirs or assigns, do mine and ship from the premises aforesaid any quantity of iron ore in excess of 2500 tons of iron ore per annum, in that event the royalty to be paid on all iron ore in excess of 2500 tons, not exceeding 5000 tons per annum, shall be 40 cents per ton ; and on all iron ore mined and shipped from the said premises, in excess of 5000 tons per annum, the royalty shall be 30 cents per ton; said royalties to be paid to the parties of the first part in monthly installments and in the manner above set forth. And it is further understood and agreed, that if the parties of the second part do not quit possession of said premises, and surrender and give up all interest they may have in this lease, on or before the 1st day of July, 1884, the very act of their refusing or neglecting to quit possession and surrender this lease is hereby agreed on their part, that there is a sufficient quantity of iron ore on said property, to pay the royalty of $1,200 on the 1st day of February, 1885; and if the said parties of the second part continue to operate said lease for three months after the 1st day of February, 1885, it is an acknowledgment that there is sufficient iron ore to pay the royalty of $1,200 on the 1st day of February, 1886 ; and in each and every year during the continuance of this lease, if the said parties of the second part, shall continue to operate this lease, and hold and occupy the above described leased premises for three months after the 1st day of February in each and every year as aforesaid, it shall be an acknowledgment on their part that there is sufficient iron ore on said premises to pay the royalty of $1,200 per annum as above set forth. And the parties of the second part agree, that if the royalty is not paid within 10 days after the same becomes due and payable, and written notice has been served on them to pay the same within 10 days, then the parties of the first part have the right to bring suit for the royalty due and unpaid. These are tbe principal covenants in this agreement which are involved in the present issue. We have already said, that this action is brought to recover damages for the non-payment of @1,200 royalty stipulated to be paid, according to the tenor of this agreement, on February 1, 1885. It is only one instalment that is claimed in this action. This agreement being in writing, it is for the court to construe it, and it is the duty of the jury to take the construction put upon it by the court. [I will again call your attention to the important covenant in the agreement, so that you may properly understand the question of fact that is involved in this ease. “It is further understood and agreed that if the parties of the second part do not quit possession of the said premises and surrender and give up all interest they may have in this lease, on or before the 1st day of July, 1884, the very act of their refusing or neglecting to quit possession and surrender this lease is hereby agreed on their part, that there is a sufficient quantity of iron ore on said property to pay the royalty of @1,200 on the 1st day of February, 1885.” Under that clause of the agreement, these defendants had the right to go upon this property and dig for and develop the iron ore deposited in the land. No other covenant preceding this one required them to develop the iron ore, but to dig for and prospect, in order to determine the existence and extent of the ore in the premises. This clause provides, that if on or before July 1, 1884, they fail to quit possession and surrender all their rights under the agreement, it shall be construed to be an acknowledgment on their part that there was sufficient iron ore on the premises to pay this first year’s royalty of @1,200. This occurs three times in this paragraph; the language where it first occurs is, “ that it is agreed on their part,” that is, on the part of the parties of the second part, that there is sufficient quantity of iron ore on said property. Where it occurs afterwards in the same paragraph, and in the same connection with the succeeding years, it is termed an “ acknowledgment ” on their part, that there is a sufficient quantity of iron ore on the premises. Therefore, taking the entire section together, we say to you, that this clause in the agreement means that if the party of the second part fail to quit possession of the premises, and surrender to the parties of the first part all their rights under this agreement, on or before July 1, 1884, it is to be treated as an acknowledgment or an admission on their part, that there is a sufficient quantity of iron ore to pay the first year’s royalty. But it is simply an acknowledgment; it is not absolute or conclusive; it casts the burden, however, upon the defendants to show the non-existence of iron ore.] 8 The plaintiffs having shown the articles of agreement in evidence, containing this clause, this easts the burden on the defendants, to show the non-existence of iron ore: in other words it casts the burden on them to prove what is termed in law a negative, that is, that there was not sufficient iron ore in the premises to justify the mining and shipping of .that quantity annually. The language in relation to the quantity is also embraced in another section of the agreement and reads thus: “That just as soon as iron ore is found in sufficient quantities to justify the shipping of the same;” and that same thought is incorporated in the section that I have just read; so that it is an agreement or acknowledgment on their part, that there is a sufficient quantity of iron ore to justify the mining and shipment of that quantity per annum; and, the defendants having failed to comply with that part of the agreement, that is, having failed to surrender up to these plaintiffs all their rights under this agreement, the admission exists in this cause, and the burden is cast upon the defendants to show by preponderance of evidence, that the iron ore did not exist in sufficient quantities to justify the mining and shipment of it. [This raises the only real question of fact for the jury to determine; which is, whether or not, from all evidence in the case, there existed, or there exists in these premises, sufficient quantity of iron ore that would have justified or will justify, these defendants to mine and ship annually that quantity;] 3 and in your deliberations upon the evidence bearing upon that question, you must take into consideration the acknowledgment that exists in this agreement, by virtue of the defendants failing to surrender their rights under the agreement prior to July 1, 1884. On that question a great deal of testimony has been taken; first, on the part of the defendants to prove the non-existence of the iron ore, in sufficient quantities which would justify their mining and shipping it. On the other hand, testimony has been taken by the plaintiffs in rebuttal, tending to show the existence of iron ore in these premises. As we have already said to you, the question of fact for you to determine in the case is, whether or not iron ore exists in these premises in sufficient quantities, which would justify the defendants to mine and ship it, at the rate of 2500 tons per annum. [We further say to you, that the $1,200 which is the stipulated royalty in the agreement for the 2500 tons payable as we have stated, is not a penalty. It is the price of 2500 tons of iron ore in place; that is, if the iron ore fails, the price is not payable. If there was no ore to mine, there would be no royalty to pay. This is the language of the Supreme Court on the subject, in Muhlenberg v. Henning, 116 Pa. 138.] 4 Now, referring to the testimony upon the question of the existence of this iron ore, you mjist take into consideration with it all the circumstances surrounding this tract of land. The evidence shows that it is an ore-bearing region; that there are furnaces in the neigborhood; you have heard the names of the different furnaces mentioned. [It has been owned by the McCahans, and their father before them, for a number of years, and, during all that time, so far as the evidence shows, up to the time of making this -agreement, the McCahans themselves had not developed the iron ore, or had it worked as an ore property, except a lease which was testified to by John McCahan, that he and a man by the name of Kinney had shipped in the neighborhood of about 500 tons or or along there from this property.] 5 The evidence on the part of the defendants, testified to by themselves, and by a number of witnesses, among whom were Mr. Holmes, Mr. Fulton, Mr. Stewart and Mr. McClenahan and a number of others; the defendants, or one of the defendants at least, testifies that he had shafts sunk upon this property, one or more, in the spring of 1884; that he went upon the premises in company with General Lane, his co-partner and that Mr. Thomas McCahan went with them upon the land; that they found a number of old shafts sunk ; that they all had the appearance of having been' abandoned for years; that the surface indications did not indicate the presence of any quantity of iron ore; and the shaft that they sunk produced or discovered no quantity of iron ore ; that they have since taken experts upon the premises who have examined the character of the ore-bearing clay, and who have searched and made examinations around and about the old shafts that were sunk, but they failed to discover any quantity of iron ore. There were indications of some ore, but not in sufficient minable quantities to warrant or justify parties to undertake to ship 2500 tons annually. In this connection you have the testimony of Mr. Stewart, a gentleman of very extensive experience in the iron business, who relates his information upon that subject; he has lived there for a great many years, very near to these premises; you have heard his testimony in regard to the examinations that he made, and the result of it was, that he failed to find or discover that iron ore existed there in any quantity. [On the other hand, you have in reply to this testimony, what the plaintiffs and their witnesses say in regard to it. First, as to the plaintiffs themselves, who testified as we have already stated to you, that about 500 tons of iron ore had been mined and shipped from this property, prior to the making of this agreement. That a person mined that ore under a contract with John McCahan and Mr. Kinney, if I remember the testimony correctly, who testified that he had sunk a shaft and that he found a five foot vein of iron ore in the premises; but after finding it there, after having sunk his shaft and developed it a little while, he quit. Well why did he quit ? It is argued by counsel for the defendants and their interpretation of it is, that he quit because ore did not exist in sufficient quantity to justify its mining and shipment. The witness testifies that he quit twice; first, because royalty was too high, being $1.00 a ton; that it was afterwards reduced to 50 cents, and he quit the second time because he was stopped from loading his cars at the wharf of The Cambria Iron Co. Does that explanation satisfy you why he quit ? or did he quit because of the insufficient quantity of ore ? ] 6 The plaintiffs, if I remember their testimony correctly, do not testify that this quantity of iron ore does exist in the premises. You have heard their testimony and from it you must determine as well as you can the existence or the non-existence of iron ore, in the quantity required by the agreement, which would warrant and justify the parties of the second part to ship annually that quantity. You have the testimony of the geologist, Mr. Scott, who says that this farm is geologically situated in the ore-bearing belt, but he does not undertake to say to you whether or not the iron ore does exist in a sufficient quantity to justify this annual shipment of 2500 tons; and it is very plain that no man without an examination of' the ore itself, could testify to its actual existence. It requires-examination and discovery of its existence before it is certainly known. You have also the testimony of Mr. McHugh, a, very intelligent and experienced gentleman in the iron ore business; a man of extensive information, and he does not state that iron ore does exist in this land in that quantity. He says it is impossible to tell for this reason, a reason which is also assigned by others, that this is a hematite, ore, and it does not lie in stratified form, that is, in its original bed. That its existence there might be accounted for by the ore having been washed there, or by the upheaval of the rock; that it may lie in one place in large or small quantities, and then it may disappear and be found again somewhere else, and that it is impossible to discover its existence except by practical tests. Now, take the tests that have been made from all the evidence and determine whether or not this iron ore exists in sufficient quantity to justify these parties to mine and ship this amount of 2500 tons annually. If the weight of the evidence satisfies you that it does so exist, then these defendants are liable to pay the royalty of $1200 with interest on it, as it is claimed in this suit. But if, after a full, fair and conscientious consideration of all the evidence in the case, you are satisfied by the weight of the evidence that it does not exist in that quantity, so as to justify these defendants to mine and ship the same according to this agreement, then your verdict should be for the defendants. [If the iron ore does not exist there it. would be very unfair to ask these defendants to pay for it; if it does exist, then it is their contract obligation to pay for it. In your examination and consideration of this evidence, you begin with the admission contained in this agreement; then examine the evidence and see if this is rebutted by the testimony of the defendants, and in this connection you must also consider the plaintiffs’ testimony to determine the simple question as to whether iron ore exists or does not exist in sufficient quantities to warrant the mining and shipping of 2500 tons annually; as you determine that question, so your verdict should be, either for the plaintiffs for the amount of damages claimed, or for the defendants generally.] 7 The verdict of the jury was returned in favor of the defendants. A rule for a new trial having been discharged, judgment was entered on the verdict, when the plaintiffs took this writ, and assigned as error: 1-7. The parts of the charge embraced in [ ] 110 7 8, 9. The admission of defendants’ offers.8 9
121 Pa. 437McNair v. Wilcox (1888)
ERROR TO THE COURT OE COMMON PLEAS OE ERIE COUNTY. No 233 January Term 1887, Sup. Ct.; court below, No. 211 September Term 1887, C. P. On July 13, 1877, an action in trespass d. b. a. was brought by John S. McNair against Alfred Wilcox. The writ was served in due time. On June 1, 1883, a narr was filed and the defendant pleaded, not guilty, statute of limitations. On March 8, 1886, a rule to amend the form of action to trover was made absolute. At the trial on May 10, 1886, at the close of the testimony, the court, Galbraith, P. J., instructed the jury as to the law of the case, as they might find the facts to be, and directed that if • they found for the plaintiff, their finding should be put in the form of a special verdict, the question raised to be passed upon thereafter. The following was the special verdict returned: We, the jury empaneled and sworn to try the issue in this case, do find for the plaintiff, in the sum of $1,408, subject to the opinion of the court, on the following stated facts: The plaintiff and one Leonard Barton were partners in the business of keeping a livery stable at Corry, Pa., letting out horses and carriages for hire. • On July 5, 1873, Barton, without the knowledge or consent of the plaintiff, McNair, executed a bill of sale in the name of the firm of McNair & Barton, selling the property involved in this suit and being a large portion, nearly all of the stock of the concern, to the defendant, Alfred Wilcox, Barton agreeing to deliver the same at Mayville, Chautauqua county, N. Y. The property was delivered at an intermediate point, at the subsequent request of defendant. At the time of the sale and delivery, the entire property was under levy, on executions against the firm of McNair & Barton, in the hands of the sheriff of Erie-county, but was still in their apparent possession, it not having been removed by the sheriff, nor the stable closed; and, so far as appears from the evidence, the fact of the levy was not known to either the plaintiff or defendant in this suit, but was known by Barton. After the delivery of the property to the defendant, he learned of the levy, and was notified by the sheriff that he must either return the property to him at Corry or satisfy the execution, which latter he did by becoming the purchaser of the judgments. The defendant then kept the property, and the plaintiff afterwards brought this suit. If the court should be of the opinion that under the facts stated the plaintiff is not entitled to recover, then judgment to be entered for the defendant, notwithstanding the foregoing verdict. On April 5,1886, the court, Galbraith, P. J., filed the following opinion and decree: This was an action of trover for the taking and conversion of horses, carriages and other stock of a livery stable, in which the plaintiff was part owner. The verdict of the jury was for plaintiff, subject to tbe opinion of the court, on the question of law raised by the facts' found, and which involves the legal query whether the plaintiff was entitled to recover in this form of action. At the time of the alleged conversion, the property was under levy on execution against the firm of McNair & Barton. It was therefore in the custody of the law, and the fact that the stable had not been actually closed nor the property removed by the sheriff, cannot affect the result here. There had been an actual levy made, as shown by the executions in evidence, on which were duly indorsed in proper form, the levies made by the sheriff, covering the property described in plaintiff’s declaration. There was not, therefore, the mere lien, which attaches the moment the writ is issued, but there was the subsequent lien by which the goods were taken into legal custody. They were not left with the plaintiff for safe keeping, and he was, therefore, not a bailee. Ho did not even know of their having been levied upon. He did not have then, even the custody of the property. His position was that of one of the general owners, but with the actual legal possession and right to the possession in the sheriff of Erie county. He had then, neither the possession, legally speaking, nor the right to the possession. Could he, under such circumstances, maintain an action in trover and conversion, or should not his suit have been in case for the injury to his reversion ? The rule of law is well settled, that to maintain this action the plaintiff must have a property in the chattel, general or special, and the actual possession or the right to the immediate possession. The general property will create a constructive possession when there is the right to immediate possession, but not otherwise. Hence the right of possession, as well as the legal possession, was in the sheriff; and, as said by the Supreme Court in Gloss v. Black, 91 Pa. 421, “ The law does not attribute constructive possession to the owner of property, while it has it in its own control, by means of an officer.” That the rule is, that an absolute or special property and a right of immediate possession before, or at the time of the conversion, is essential to the maintenance of this action, there can be no doubt. It is established by abundance of authorities : 1 Chitty’s Pleading, 149; Mather v. Trinity Church, 3 S. & R. 509; 2 Greenl. on Evidence, title, Trover, § 686; Morgan v. Negley, 3 Pittsb. 33; Weidensaul v. Reynolds, 49 Pa. 73 ; Duffield v. Miller, 92 Pa. 289; Overton v. Williston, 31 Pa. 155. I am of the opinion that the plaintiff has mistaken his remedy and unless we are to ignore entirely a long established and fundamental legal rule in his favor, his suit must fail. Accordingly, it is ordered that judgment be entered in favor of the defendant, notwithstanding the verdict. Judgment having been entered according to the foregoing ' order, the plaintiff took this writ, assigning as error the order entering judgment in favor of the defendant, non obstante veredicto.
121 Pa. 443Shamburg v. Abbott (1888)
ERROR TO THE COURT OF COMMON PLEAS OF CRAWFORD COUNTY. No. 300 January Term 1887, Sup. Ct.; court below, No. 42 May Term 1883, C. P. On March 10,1883, an action in assumpsit was brought by Garson Shamburg against Wm. H. Abbott, George Moody, W. W. Thompson, J. J. Holden, G. K. Anderson, Fred Bates, James B. Kerr, H. B. Porter, J. A. Cadwalader, F. W. Ames, W. W. Davis, Lyman Stewart (and others not served), late partners doing business under the firm name of The Citizens Bank of Titusville. The defendants pleaded, non assumpsit, non assumpsit infra sex annos, and payment with leave to give special matter in evidence; in addition, Davis, Anderson, Abbott and Stewart pleaded, discharge in bankruptcy. The narr and pleas were not shown in the paper books furnished. At the trial on February 16, 1885, at the close of the plaintiff’s testimony, the court on motion directed the entry of a compulsory nonsuit. On writ of error to No. 227 January Term 1886, Sup. Ct., the judgment was reversed: Shamburg v. Abbott, 112 Pa. 6. At a second trial on April 6, 1886, there was a verdict for the plaintiff for $2,125.92. Subsequently, on June 14, 1886, a rule for a new trial was made absolute. At a third trial on January 12, 1887, the case in substance was, that in 1870, the defendants, together with other persons who subsequently retired, formed a copartnership under the name and style of The Citizens Bank, and soon after organized under an unincorporated joint stock association, with a board of directors chosen, and began a banking business. The plaintiff became a holder of stock at or soon after the organization and served as a director, but on December 23, 1872, he sold and assigned his shares and retired. The association became insolvent and closed its doors on November 14, 1873. Suits were afterwards brought by depositors and other creditors against the plaintiff, with other copartners, and to these suits the plaintiff made defence that hé had withdrawn from the association as stated, and was not liable for debts contracted before he became a member, or after the date of the sale of Ms shares. The judgments of the Common Pleas were for the plaintiffs, upon both positions. One of the suits was taken to this court on writ of error, when the judgment therein was reversed, this court deciding that while an incoming partner was not liable for antecedent partnership liabilities, unless he had agreed to assume such liability, yet, on the sale of his shares and his retirement without notice thereof, his liability to subsequent creditors remained: Shamburg v. Ruggles, 83 Pa. 148. Under his liability thus fixed, the plaintiff paid personally a number of the creditors of the association whose claims originated after the sale of his shares, and then proceeded against the other members for a recovery of the amount of the claims so paid. The questions which arose will best appear in the charge of the court below, Church, P. J., which was in part as follows: The Citizens Bank of .Titusville was a partnership association ; not a corporation, nor anything of that sort; but a huge partnership association, organized in 1870 for the purpose of doing a banking business. They issued certificates of stock to members, and it was provided in the articles of association that the stock should be divided into equal shares, and that persons would become members or copartners by virtue of subscribing to them, or becoming purchasers of certain shares of stock in the association..... Its business management seems to have been confined to a board of directors; the number I do not recollect, nor is it of any importance. It was provided that a person could become a member of the association, either by subscription, or otherwise by purchase of stock and signing the articles of association, but when he sold his interest, he should assign it on certain assignment books, and that assignment should be approved by the board of directors..... This was done for the protection of the remaining members, so that a solvent person, a good business man, a member of the firm, would not be permitted to sell his interest in the firm to some worthless, insolvent person, and thereby injure the chances of success, or render the liability of those in it greater. Therefore, it was well provided that in the going in and coming out of a person, they should follow the provisions set forth in the articles of association. In 1871, whether January or May of that year, is of very little importance, Dr. Shamburg became a member of this firm. Mr. Jackson testified that he was an original member, not an original subscriber to the stock, but that certain shares of stock had been secured for him, and awaited his pleasure, and the evidences of the stock were issued in the name of William H. Abbott, and when the plaintiff paid his money the stock was transferred by Abbott to Shamburg, and the money he paid went into the association account, and he was to all intents and purposes an original member of the firm. Whether he was an original member, or became so by purchase, is of very little importance. It is certain he did not sign the articles of association. There is evidence he had them in his hand and some minutes of the proceedings of the directors, whether few or more, I do not know. The evidence of Mr. Jackson is for you upon that point. He had the opportunity to see, read and make himself acquainted with the contents of those articles of association. He did not sign them, but paid his money and took his certificate of stock. He had that certificate of stock ten months, until December 28, 1872, when he sold out to Mr. Abbott, his original vendor. Thereby he claimed to have retired from the association, and to remain no longer liable for the debts. Thus things remained until September or October, 1873, when the bank closed its doors in consequence of the panic of that year and ceased to do- business. The creditors undertook to pursue various members of the association, and amongst others pursued Dr. Shamburg, this plaintiff. Dr. Shamburg was held by this court and by the Supreme Court to be a partner of the association, so far as the creditors were concerned, because he did not avail himself of the requirements of the law upon the subject of a retiring partner, by giving notice of his retirement. You will bear in mind he was a director and advertised as such in the. Titusville papers, but he neglected to have his name taken from the list of directors, and was held by the various creditors as one of the partners..... After having paid a great many debts, from 1874 down to 1878, or thereabouts, he claims in this suit that, as to the remaining partners, he legally and effectually went out of the partnership firm, even if he did not go out as far as the public was concerned, and that, therefore, after he went ont of the firm, he stood in the relation of surety as to the debts paid for the remaining members, who were his principals. The relation of principal and surety you understand. In ordinary language it is called bail. The plaintiff claims to be surety, or in other words, bail, for these persons. If he claims to have paid debts to persons, which the remaining partners were liable for, he has a right of action. The Supreme Court has held that, as to the remaining members of the firm, he did stand as surety if he paid debts he was not legally liable for, and went out according to the terms of partnership, or effectually went out from a legal point of view..... The plaintiff therefore brought this suit on March 10, 1888, and under no circumstances, the statute of limitations having been pleaded, can he recover in this case for any claims or debts that he paid, even of his own showing, prior to- March 10, 1877, and they are substantially withdrawn. He claims that he paid from July, 1877,'and during the year 1877, and as* late as September, 1878, certain debts to various persons, aggregating in the whole about $1,965, and for that this suit is brought against the remaining persons, whom he claims to hold no partnership relation with, but to hold the relationship of surety, that is to this bank, his principals; that, in the language of the Supreme Court, when one person, being legally bound to pay the particular debt of another, the former in a certain sense occupies the position of surety for the latter, and if the surety pays the debt he has a right of action against the principal. The defendants in this case have interposed various defences, and you will have to give attention to the defence of each individual. Wm. H. Abbott, George O. Moody, J. J. Holden, George K. Anderson, Frederick Bates, F. W. Ames, W. W. Davis, Lyman Stewart are defendants. All of them have been discharged in bankruptcy by the United States District Court. That being the case, they are free from any debt .which was provable prior to their applications; these being some of those debts they are discharged from them, and your verdict will be for them in any event. James B. Kerr, Jacob Cadwalader and H. B. Porter claim to have been released by the plaintiff by Virtue of a paper writing, which was executed by the plaintiff on October 18, 1879, wherein this present plaintiff releases and discharges these persons, together with certain other persons, Purdon, Bronson and Archbold, who have not been sued, from liability on account of their alleged copartnership with the other defendants and the plaintiff, as the Citizens Bank of Titusville, from charges against them in the bill filed in this case. Therefore they claim to be released from any liability to the plaintiff, and this is a release from liability, and it is sufficient to discharge them, and your verdict will be in favor of Kerr, Cadwalader and Porter. This leaves of the defendants only one unfortunate individual, W. W. Thompson, upon whom the burden of this suit falls. He defends, not by any reason of discharge in bankruptcy or release. He claims to be discharged of these debts by the statute of limitations, and for part of the debts because the plaintiff discharged these persons and Purdon, Bronson and Anderson, not sued, plaintiff releasing them, they being the owners of about $85,000 stock of this bank, and defendant Thompson claims it releases him from or thirty-five per cent, of the indebtedness claimed against him by this plaintiff. And this, we say to you, is an effective claim. But the defendant claims more than that, and this, after all, gentlemen, together with one other point, are the impinging points in the case, so far as clearing W. W. Thompson from any liability to the plaintiff in this case is concerned. There is an act of assembly read and cited in your hearing, which allows, upon dissolution of a partnership, certain members of the partnership being debtors to creditors, to agree with their creditors, and to pay them such portion as the creditors will take from the individual partner, and it thereby releases and discharges that person from these debts. It is the act of March 22, 1862, P. L. 167, and it provides that they “ may make a separate composition or compromise with any one or all of the creditors of such copartnership firm; and such composition or compromise shall be a full and effectual discharge to the debtor or debtors making the same, and to them only, of and from all and every liability to the creditor or creditors with whom the same is made or incurred, by reason of his or their connection with such copartnership firm, according to the terms of such compromise.” - This act provides that the compromise shall be in writing, and it shall not discharge the other members of the firm. It also applies to joint debtors. W. W. Thompson has introduced evidence tending to show that he has compromised with and paid everything the creditors asked, and that he is completely exonerated from the creditors’ debts they had against him as one of the members of the Citizens Bank; and these are the same persons the plaintiff claims for here. Also, that the compromise was made before the payments were made by the plaintiff. If that be true, we say to you that it is an exoneration of this defendant from these debts. If there was no debt existing against W. W. Thompson in favor of these creditors at the time Dr. Sham-burg paid them, the principle sought to be invoked by the defendant is available. [When a certain person is legally bound to pay a debt for his principal, he occupies the position of surety, and if the surety pays the debt, he has a right of action. Thompson, being such surety, if he paid the debt himself and all that was demanded of him by the creditor, and had received a written exoneration, or written release from the creditor, there was no debt of W. W. Thompson that Dr. Sham-burg, as surety, could pay.] 3 It is also claimed, as an additional defence, by the defendant, that although Dr Shamburg, this plaintiff, claims now he went out in December, 1872, he did not go out, and that he did not stand in the relation of surety to the bank as principal; that he is still a member even as to them; although he was held and cannot but be held a member of the firm, so far as the creditors are concerned, that he is still held a member of the firm even so far as the other remaining members of the firm are concerned, because he did not go out in accordance with the rules and terms laid down in writing by the members of the association. Mr. Thompson testifies he was a member of the association, and he knew nothing of the fact or allegation that Dr. Shamburg left the firm at the time he is alleged to have done so, and he did not know anything about it until the bank closed business. Mr. Bates and Mr. Holden, members of the firm, also testified substantially the same thing There is no evidence the directors knew of it; he says he did not know of it as a matter of fact; that the plaintiff did become a member, but there was a paper writing whereby persons became members, and no person should come in or go out of the firm without following the provision made necessary by the firm itself. The plaintiff alleges that, inasmuch as he came into the firm without being required to sign the paper, and without the directors being called upon, and no one else either came in or went out in accordance with the terms of the paper, that paper became a dead letter; and that persons could not come in and go out without performing the things made necessary by the articles of association; and that, in either event, he never went in properly, in which event he was not in at all; that he did not go out properly, but it is claimed for him that every one else being permitted to come in and go out without signing these papers, -he had a right so to do, and it is to all intents and purposes, as if he had done it in writing in accordance with the law. Therefore you will perceive that there are two points for you to determine: Did the plaintiff go out of this firm, even as to the members of it? If he did not, then, there, of course, is an end of this case, because the present plaintiff can claim under no other right than being out of the partnership. If he remains in the partnership he cannot claim in this suit, because the very gist or gravamen of his action is that he is out of the partnership. If you find he did go in and come out by a sort of common consent, not being required to do what the paper requires, you come to the other matter, whether these debts, which Dr. Shamburg claims in this case, were paid by Thompson ; and did he receive a release in accordance with the act of assembly of 1862, giving the debtor the privilege to compromise with his creditors; if he did, Dr. Shamburg could pay no debt for him, and did not stand in the relation of surety to him. . . . For the purpose of making this a little more perspicuous to you, I will read the points the parties have presented. The plaintiff requests the court to charge (inter alia) : 1. If the plaintiff was a copartner with the defendants prior to December 28, 1872, and on that date sold and transferred his interest in the copartnership to the defendant Abbott, and retired therefrom, but failed to give notice of his retirement, by reason whereof he was held liable for debts thereafter contracted by the defendants continuing the business of the firm, he stood in respect to such debts as between himself and the defendants in the relation of a surety for the defendants, and each of them owed to him the common duty of a principal to his surety, to indemnify and save him harmless from and against all and every part of such debts, and no one of them could escape from that duty by contract with or release from the creditors while they were pursuing the plaintiff, without at least giving notice thereof to the plaintiff in time to avail himself of such release. Answer: This point, at least. down as far as it concludes “ from part of said debts,” is answered in the affirmative, provided the plaintiff sold his interest in the copartnership, in the manner provided in the articles of association, or in such manner as legally terminated the partnership relation between himself and the remaining members of the firm. The remaining part of the point will be sufficiently answered in the answers to some of the defendants’ points.1 2. If the plaintiff did not sign the articles of association when he acquired his interest in the Citizens Bank association, and all other persons acquiring interests therein after the original subscriptions were made, were permitted to do so without signing the said articles, and the plaintiff assigned and transferred his interest in the same manner that was practiced in the said association during its entire existence, then, as between himself and the defendants, the plaintiff either ceased to be a member of the association upon so assigning and transferring his said interest or never was such member. Answer: I cannot say that there is evidence that any one of the defendants, directors of the association, unless it be Jackson and Abbott, permitted any persons to become members of the association without signing the articles of association, or to leave the firm except in the manner provided by the articles of association, but I leave it to you to find the fact under the evidence upon the subject, bearing in mind the fact that there is evidence that members did como and go without regard to the articles of association ; yet, if the plaintiff undertook to go out of the firm in a manner not authorized by the articles of association, and it was not known to the defendants, Thompson, Holden or Bates, until the final dissolution and closing up of the bank, I cannot say the plaintiff’s relationship with Thompson and others ceased to be, and changed from copartner with them to that of surety.4 The defendants request the court to charge (inter alia) : 2. That if the jury believe that .the plaintiff attempted to retire from the copartnership without notice to or consent of his copartners, or a majority of them, or the approval of the board of directors, as required by the articles of association, the same was ineffectual to dissolve his copartnership relation with those of his associates who were not informed, and did not consent thereto, and as to all such persons his relation of copartnership continued until the dissolution of the concern in 1874. Answer: This point is affirmed.5 7. That if they believe that the creditors of the defendant association, whose claims the plaintiff alleges he paid wholly or in part, had previously to such payment and after the dissolution of the copartnership, made composition and compromise with W. W. Thompson, one of the defendants, of their respective claims against said copartnership, and for a valuable consideration released and discharged said Thompson from all and every liability therefor or thereunder, the plaintiff cannot recover against Thompson for payments upon, or purchase of the residue of such claims. Answer : This point is affirmed.3 The verdict of the jury was in favor of the defendants, and judgment was entered. Thereupon the plaintiff took this writ and specified as errors : 1. The answer to the plaintiff’s 1st point.1 2. The answer to defendants’ 7th point:3 8. The part of the charge embraced in [ ] 3 4. The answer to plaintiff’s 2d point.4 5. The answer to defendants’ 2d point.5
121 Pa. 455Comfort v. Mosser (1888)
ERROR TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. No. 112 January Term 1888, Sup. Ct.; court below, No. 155 November Term 1884, C. P. On October 7, 1884, a summons issued in an action of ejectment by Henry R. Mosser against John C. Comfort and Mary A. Comfort, his sister, for-the recovery of a tract of 68 acres of land in Lower Allen township. The plea was, not guilty. At the trial on April 18, 1887, when the panel of twenty jurors was called into the box, the following offer was made : Defendants’ counsel propose to ask several jurors, of whom Mr. Klink is one, whether he has not heard the merits of this case between the plaintiff and the defendants discussed, and whether he has not formed an opinion as to the merits of the controversy between the parties to this case. The proposed examination was objected to, and at the suggestion of the plaintiff’s counsel it was noted that this was the first trial of the cause. By the court: We think we will sustain the objection and not permit the interrogation of the jurors as desired by the (defendants.9 The juror was then challenged peremptorily. The plaintiff, in proof of title, showed a deed of Weber and wife conveying the land in dispute to John C. Comfort on April 6, 1868, recorded; then a judgment in his favor against John C. Comfort entered on an award of arbitrators on April 15, 1874, for $2,111.85; judgment of revival preserving the lien of said original judgment; condemnation of the land in dispute on fieri facias, and a sale to Mr. John Hays, plaintiff’s attorney, on a fourth pluries venditioni exponas, and sheriff’s deed to the purchaser acknowledged in open court on April 19, 1880, recorded; deed from Mr. Hays and .wife to the plaintiff dated October 3, 1880. The plaintiff then rested. The defendants, in proof of title, showed a deed of John C. Comfort to Elizabeth Comfort dated September 13, 1873, acknowledged before W. M. Bergstresser, J. P., September 13, 1873, and recorded on November 3, 1879. They then put in evidence the will of Elizabeth Comfort, deceased, dated December 22, 1878, and admitted to probate on April 12, 1879, wherein the testatrix devised all her estate “ real, personal and money,” to Mary A. Comfort, and rested. In his rebuttal case, it was shown that the plaintiff was an indorser upon a note discounted for John C. Comfort at the Harrisburg N. Bank, on October 14, 1871, which was paid off and lifted by the plaintiff on April 18, 1873. The plaintiff was then called in his own behalf when the following offer was made: Plaintiff now proposes to prove, by his own testimony, that the note paid by him in the Harrisburg National Bank, as indorser for John C. Comfort, was the consideration for the notes upon which judgment, No. 180 April Term 1874, already in evidence, was founded, for the purpose of showing that he was a creditor of said Comfort prior to September 13, 1873 ; that he became such creditor upon the assertion of and belief that the said Comfort owned the property in dispute; that the various executions issued upon the said judgment, No. 180 April Term 1874, were stayed by him at the earnest solicitation of the said Comfort, and that on April 11, 1879, the property now in dispute was about to be sold by tbe sheriff, when the said Comfort begged the plaintiff to stay the writ, saying that he would make an assignment for the benefit of creditors, so that the property about to be sold would not be sacrificed, but bring a higher price ; that the plaintiff gave way, and the said Comfort at once made an assignment to him for the benefit of creditors ; that at the time of the appraisement of the assigned estate made in 1879, the said Comfort declared that the crops on the land now in controversy belonged to his mother, to whom he had rented the land for a moneyed rent, and that a receipt for it would be found among her papers, and that there was nothing to be appraised but the land; that in the summer of 1879, when the plaintiff, as assignee of Comfort, called upon him to notify him of the time and place of the sale of the assigned property, he met Mary A. Comfort, the other defendant, who told him he ought not to sell John’s farm, and found fault with him for so doing; all this for the purpose of showing that the deed from John C. Comfort to Elizabeth Comfort could not have been made on September 13, 1873 ; to be followed by other evidence to the same effect, and that Comfort remained in possession of the property up to the present time, and that the estate of Mrs. Elizabeth Comfort, deceased, claimed to be the tenant of the land in dispute after her death; all this prior to the recording of the deed of September 13, 1873, on November 3, 1879. Objected to, (1) the witness is not competent as a witness in this case, it being now against the title of a deceased person ; (2) any acts done by John C. Comfort are irrelevant in the trial of this issue; acts or admissions of a grantee after the execution of the deed are not evidence against his deed; no acts or admissions or conduct of John C. Comfort can in any way affect the title of Mary A. Comfort against the deed of John C. Comfort, dated in 1873. By the court: The witness called, is the plaintiff in the cause. He is not offered to testify to the declarations of Elizabeth Comfort, who is dead, but of the adverse parties to the action, who are living. We think he is a competent witness for that purpose. His testimony is not offered to attack any title which has been shown otherwise than inferentially to have been vested in Elizabeth Comfort. On the other hand, it appearing already from the evidence that the deed to her from John C. Comfort, for the land in dispute, was not recorded until long after its date and some time after her death ; and it not appearing affirmatively that the deed had ever been delivered to her in her lifetime, or that she had ever been in actual possession of the land therein described, the testimony is offered to rebut the inference of the delivery of the deed, and as tending to prove that Elizabeth Comfort had neither title nor possession; that the deed in evidence, although executed by John C. Comfort, is fraudulent and void and is now used with fraudulent intent. This testimony, we think, is admissible. When fraud is alleged a liberal latitude is permitted in the attempt to prove it. The offer in the present instance we think falls clearly within the limit. We, therefore, overrule the objections, admit the offer, and seal a bill for the defendants.4 Under the foregoing offer, and other offers for the same purpose, admitted under exception to the defendants, testimony was adduced supporting the offer and, as claimed by the plaintiff, tending to show that the deed of September 13, 1873, had not been delivered during the lifetime of the grantee, but, if delivered, was fraudulent and void as against the plaintiff. This testimony is sufficiently indicated in the charge of the court below- The court, Barnett, P. J., 41st judicial district, specially presiding, after answering the points presented and reviewing the testimony adduced by the plaintiff and the defendants, in chief, charged the jury: [But the plaintiff next again alleges that this deed of John C- Comfort to his mother, did not divest his title and put the title in his mother, Elizabeth Comfort, because, first, he claims there was no delivery of the deed by the grantor to the grantee; no delivery of this deed of John C. Comfort to his mother, Elizabeth Comfort,’ and, second, because even if delivered, the deed was fraudulent as to creditors, and therefore as against them, and the plaintiff was one of them, insufficient to divest the title of John C. Comfort, and ineffectual to vest the title in Elizabeth Comfort. This then, in our opinion, raises the two questions of fact which we think it our duty to submit to the determination of the jury under all the evidence. First, was there a delivery to the grantee, Mrs. Elizabeth Comfort, of the deed of John C. Comfort?] 23 What is a deed? It is defined to be a writing sealed and delivered between the parties. It must be delivered as well as executed. There is no evidence in this case to overcome the presumption of law that the deed was duly executed. It was acknowledged, and the acknowledgment before a justice of the peace is a judicial act on the part of that officer, and in the absence of evidence of fraud touching the acknowledgment, the certificate of acknowledgment by the justice of the peace is conclusive. [But the delivery of the deed is the act of the grantor. The presumption of law, arising from the due acknowledgment before the justice when.the deed has been afterwards recorded, is that it was duly delivered by the grantor. But this presumption of law is not conclusive, and like all other inconclusive presumptions of law, may be rebutted by evidence that the fact is otherwise; that, notwithstanding the acknowledgment, there has been no actual delivery. It appears from the evidence in this case that although this deed was dated and acknowledged on September 13, 1873, it was not recorded until November 3, 1879. In the meantime Mrs. Elizabeth Comfort had died on January 12, 1879. The deed, therefore, was not recorded until after six years from its date, and nearly ten months after the death of Mrs. Comfort. Mrs. Comfort had made and executed her last will on December 22, 1878, and appointed Mary A. Comfort her executrix. But it was John C. Comfort, the grantor in the deed, who brought the deed to the office of the recorder and asked to have it recorded, so that he might take it along with him home, and not Mary A. Comfort, the personal representative of the deceased grantee, and the devisee named in her will. And it was arranged that when recorded the deed should be sent by mail to John C. Comfort, and not to Mary-A. Comfort, the executrix and devisee. It also appears that John C. Comfort remained in possession of the land the same after the execution of the deed as before, exercising acts of ownership, having it assessed and taxed in his own name, and applying for insurance on the buildings for himself individually; that he requested the plaintiff from time to time to stay executions levied on this land, and, to induce him to stop a sale by the sheriff on the day advertised, he executed an'assignment of it to the plaintiff for the benefit of creditors; and that when the assignee had appointed a day for the sale of the assigned property, and went to give notice of that fact to John C. Comfort, he was met by Mary A. Comfort, who said to him : “ Mr. Mosser, are you doing right in selling John's farm ? ” This assignment was made on April 11,1879, after the death of Mrs. Comfort. The will of Mrs. Comfort was probated on the next day after the assignment, to wit: on April 12, 1879, and it was after the date of the assignment and after the date of the appraisement made by virtue thereof (at which time John C. Comfort declared to the appraisers that the grain in the ground belonged to Elizabeth Comfort, because he had leased the farm to her on a moneyed rent paid in advance), that Mary A. Comfort asked Mr. Mosser if he was doing right in selling John’s farm; and it was on April 22, 1879, that Mary A. Comfort filed the appraisement of her mother’s estate, in which was contained an item, “ Farm lease, John’s farm, 1212.37.”] 84 [Now we submit this evidence, as well as any other evidence you may recollect, whether we have mentioned it or not, touching this question, to your consideration, to determine whether or not there was a delivery of this deed. If you find there was no delivery of the deed, then there was no title vested by it in Elizabeth Comfort, and the plaintiff would be entitled to your verdict. It is true that the declarations of a grantor made after the delivery of his deed are incompetent to affect the estate of his grantee ; but the question we have to submit to you is whether there was any delivery of the deed of John C. Comfort, and we think the declarations of John C. Comfort are competent to submit to the jury for this purpose; because if there was no delivery of the deed, there was no estate thereby vested in the grantee therein mentioned; and, in such ease, the declarations of the grantor in said deed are not subject to the objection that they are inadmissible to affect the estate of the grantee when there is no such estate in existence.] 85 [Now we submit all the evidence to your consideration for you to determine this first question of fact. If you find there was no delivery df the deed, then you need inquire no further, and the verdict should be for the plaintiff. But if you are not satisfied from the evidence, that the presumption of law that tlie deed was delivered is overcome by the facts in the case, and should find that there was such delivery, then the next question of fact we submit to you to determine from the evidence is, was the deed, even if duly delivered, fraudulent and void as against creditors ? The plaiutiff claims that the deed was fraudulent and void as to the plaintiff in this case, because lie was a creditor of John C. Comfort at and before the date of the deed in question, and that the deed was a voluntary one, given without consideration and for the purpose of hindering and delaying the plaintiff and other creditors in the collection of their rightful claims. And the plaintiff relies principally on the fact that the grantee was the mother of the grantor; that she was the widow of Jacob Comfort, who was the owner of a farm containing some forty acres of slate land, subject to a dower of $483.38 in favor of the widow of Edward McKee, and without known separate estate of her own; and they claim that therefore she was without the means or ability to pay the consideration of $5,500 named in the deed; that being without the ability to pay the consideration named in the deed, the deed was a voluntary deed on the part of John C. Comfort, made without consideration by a grantor who was indebted at the timé; and that if it was received under such circumstances by a mother without consideration, it was so received for the purpose of saving the son’s real estate from being levied on and sold in satisfaction of the son’s debts; and if so received for such purpose it would operate in hindering and delaying and defrauding his creditors, and would be fraudulent and void as to them, and the plaintiff would be entitled to recover. When fraud is alleged, a considerable latitude is permitted in the evidence offered to prove it. But because fraud is odious in law it must be proved by competent and satisfactory evidence or there must be such facts satisfactorily established by the evidence from which the existence of fraud may be rightfully and legally inferred. We submit all the evidence touching this second question of fact to your consideration as you will recollect it. Tt is for you to say what weight and reliance you will place upon it, and to determine therefrom, whether the deed, even if delivered, was given without consideration and for the purpose of hindering and delaying and defrauding creditors; and if you find that it was, then your verdict should be for the plaintiff. But on the other hand, if you find that the deed was duly delivered, and that it was not given without consideration or for the purpose of delaying and defrauding creditors, then your verdict should be for the defendants. The controversy is about a tract of land. The evidence is now submitted to your consideration. Your verdict will simply be, we find for the plaintiff, or we find for the defendants.] 36 The jury returned a verdict in favor of the plaintiff. On October 21, 1887, a rule for a new.trial was discharged by the following opinion and decree: The first reason for a new trial alleged that the court erred in refusing to permit defendants to examine the jurors, Klink and others, on voir dire. But this permission was applied for, to inquire of the jurors whether they had formed and expressed an opinion of the rights of the parties based upon common rumor, and if they had, this would not be a sufficient objection to their being sworn and empaneled: Durell v. Mosher, 8 Johns. 445. “ It is very true that men generally form an opinion upon the case as it has come to their'knowledge; but when that knowledge is derived from common report, any sensible man knows the uncertainty of such reports and keeps his mind open to a change of' opinion when the whole truth shall be ascertained: ” Irvine v. Kean, 14 S. & R. 292, in which Durell v. Mosher is cited as authority. If therefore nothing could have been effected by making the examination, the refusal to make it, we think, could not be error. . . . We therefore overrule the motion for a new trial, and now, October 21, 1887, the prothonotary is directed to enter judgment on the verdict upon payment of the jury fee. Judgment having been entered on the verdict, the defendants took this writ, specifying as error, inter alia : 1. The refusal of defendants’ offer.1 23-26. The parts of the charge embraced in [ ] 33 to 86
121 Pa. 467Knoll v. N. Y. etc. Ry. Co. (1888)
ERROR TO THE COURT OF COMMON PLEAS OF ERIE COUNTY. No. 278 January Term 1888, Sup. Ct.; court below, No. 73 May Term 1887, C. P. On March 15, 1887, Anthony Knoll, administrator of the estate of Wencelaus Hermle, deceased, brought an action on the case against the New York, Chicago & St. Louis Railway Co., to recover damages for injuries to real estate upon which the plaintiff held a mortgage. The narr set out the death of Wencelaus Hermle in April, 1872, owning the equitable title to certain lots in Erie, numbered 39 and 40, in Courtright’s plan, and that on July 10, 1873, the plaintiff was appointed his administrator; that in October, 1873, he had sold the lots to Mrs. Maria Hermle for $2,000, for which she had executed a purchase money mortgage in that amount, on which mortgage there was a balance due of nearly $1,600; that there was a balance of purchase money due from the decedent to one Courtright and payable before the mortgage -debt, of almost $500; and charged that in 1881, the defendant company had constructed its railroad on and along Nineteenth street in front of said lots, and had since run its ears and locomotives thereon night and day; that by reason of the occupation of said street by the moving trains o°f the defendant company, the lots were rendered for many purposes inaccessible, and, because of the smoke, dust, sparks and noise from the locomotives and cars, the dwelling-house thereon was endangered and rendered undesirable as a residence, and the property so depreciated by said obstructions, inconveniences and annoyances inflicted by the defendant company that the plaintiff was unable to collect his mortgage out of the property, and his ■ mortgage interest had been impaired by the defendant company to a large amount, etc. The plea was, not guilty. At the trial on January 18, 1888, the plaintiff put in evidence the mortgage and the balance due thereon; the amount of purchase money unpaid to Courtright, the vendor of the decedent.; the Orphans’ Court sale by himself to Maria Hermle, the widow of the decedent, and followed with evidence, admitted pro tempore and'under exception, tending to show that before the construction of the railroad the property was worth from $1,600 to $2,000 and that, by the construction and operation of the road, the value of the property had been depreciated about -40 per cent. The plaintiff then rested. In its case in chief, the defendant offered to show that on November 20, 1884, the company defendant paid to Mrs. Hermle, as owner of the lots in question, $200, in full settlement of any and all claims for damages or compensation which had arisen by reason of the construction and operation of the defendant’s road in front of said property, to be followed by the record of the release executed by Mrs. Hermle; this for the purpose of showing that the company had paid the damage stated, and also the amount of damage sustained by the property. The offer was objected to as irrelevant, and excluded, under exception to the defendant. The defendant then put in evidence the record of the Orphans’ Court sale of the property to Mrs. Hermle, to show that the property was sold to pay the balance of purchase money due from her deceased husband, the amount being stated at $816.89. Next was put in evidence an account of the plaintiff as administrator of Mr. Hermle, settled on April 2, 1877, from which it appeared that $69.80 had been received by Mrs. Hermle under the widow’s exemption law, and that she had been credited on the bond and mortgage debt, $1,350. The ordinance of the city of Erie, permitting the occupancy of Nineteenth street by the defendant company, was then put in evidence, followed by the record of plaintiff’s mortgage, to show that no proceedings had been commenced upon the mortgage for the collection of it. The defendant, at this stage of the case, made the following motion: Now to wit, January 19, 1888, defendant by attorney, moves the court to order a nonsuit to be entered in said case, plaintiff being only a mortgage creditor of Maria Hermle, the owner of the lots described in the mortgage of plaintiff, and it also appearing that he had not proceeded against said lots for the collection of his said mortgage debt. Mr. Wetmore : I desire it noted here now that it is agreed that the court may deduct from any verdict that the jury may render, $200 and the interest on it from the time it was paid Mrs. Hermle. Mr. Davenport: The gentleman might agree to that, but I don’t desire any agreements made. By the court: I am clearly of the opinion that the mortgagee is not such an owner of the property that he could recover damages in a proceeding under the act authorizing the appointment of viewers. The act only gives that right to apply for the appointment of viewers to owners of property, and in this state a mortgagee is not an owner of property. He only has a lien upon it. But this is not an action of that kind. It is an action on the case for consequential damages, and I think that in that case the damage to the mortgagee would not be such a direct damage as to give him a right of action, therefore the motion for a nonsuit is allowed. A rule was granted the same day to show cause why the judgment of nonsuit should not be taken off, and on February 27,1888, the court, Gunnison, P. J., in an opinion citing Ives v. Cress, 5 Pa. 118, held that the action could not be maintained and the rule was discharged. Thereupon the plaintiff took this writ assigning the discharge of the said rule as error.
121 Pa. 477McClaughry v. McClaughry (1888)
ERROR TO THE COURT OE COMMON PLEAS OE ERIE COUNTY. No. 409 January Term 1888, Sup. Ct.; court below, No. 30 November term 1887, C. P. \ On September 14, 1887, a scire facias sur mortgage was instituted by “ C. F. McClaughry, widow, who survives M. M. McClaughry, her husband,” against R. B. McClaughry, morG gagor. The mortgage, dated February 1, 1878, and duly recorded, was “between R. B. McClaughry, of .... , party of the first part, and M. M. McClaughry, of...... party of the second part,” and recited: “Whereas, The said party of the first part, by his bond or obligation bearing date the first day of February, in the year of our Lord one thousand eight hundred and seventy-eight, stands bound unto the said party of the second part in the sum of ten thousand dollars, conditioned for the payment of the said sum of money above specified, the just and full yearly sum of four hundred dollars a year, each and every year, for and during the term of the natural life of the said M. M. McClaughry, and, upon the death of the said M. M. McClaughry, then if his present wife, C. F. McClaughry, shall survive him, her said husband, the yearly sum or payment of one hundred and fifty dollars a year, each and every year to her, the said C. F. McClaughry, wife of said M. M. McClaughry, for and during the term of her natural life;” and, in consideration of the said debt or sum of $10,000, “ and for the better securing the payment thereof, with interest, according to the condition of said bond,” conveyed lands therein described to the grantee, “Provided always, nevertheless, that if the said party of the first part, his heirs, executors, administrators or assigns, shall pay unto the party of the second part, his heirs, executors, administrators or assigns, the sum of ten thousand dollars, according to the condition of the above in part recited bond or obligation, then and from thenceforth these presents and every matter and thing therein contained shall cease and be utterly null and void; ” with the further and ordinary provision that in case of default of the payment of any payment or part thereof, according to the terms of the mortgage and accompanying bond, a scire facias might issue and be prosecuted to judgment in favor of the mortgagee for the whole amount then unpaid. On September 27,1887, R. B. McClaughry filed an affidavit of defence admitting the execution of the mortgage and averring: That December 1, 1881, the deponent made an arrangement with his father, the mortgagee, for a valuable consideration to satisfy and extinguish the mortgage above referred to, and the said M. M. McClaughry did, December 1, 1881, satisfy and extinguish the said mortgage, as fully appears upon the records, to wit: in mortgage book Y, page 410, in Erie county, and deponent says that he owes nothing on the said mortgage to the plaintiff nor to any one else. The certificate of satisfaction dated December,1, 1881, and recorded, acknowledged the receipt of payment and satisfaction of the debt and interest of the mortgage, and directed the satisfaction in full thereof upon the records. A rule was taken for judgment for want.of a sufficient affidavit of defence, and on February 27, 1888, the court, Gunnison, P. J., filed an opinion, which after reciting the provisions of the mortgage and the averments of the affidavit of defence proceeded: Had M. M. McClaughry and C. F. McClaughry, his wife, both been named mortgagees as to the respective payments to be made to them, it would not be affirmed that he could withdraw and without her authority satisfy the interest payable to her after his death; nor could he satisfy her interest in a mortgage given to him originally, after a portion of it was assigned by him to her. A declaration of trust, by which he declared that he held the Mortgage or a portion of it, in trust for her, if the mortgagor had notice of it, would operate as a bar to the satisfaction of her interest as cestui que trust by any arrangement between the mortgagor and her husband. Without authority from her, such an arrangement would be a fraud on her. The provision in the mortgage for payment of interest to her, in case she survived her husband, was in the nature of a declaration that he held the mortgage in trust for her; to that extent it is in the nature of an assignment to her, which equity will enforce as a trust. There are many cases in the books in which transactions similar in principle have been enforced against the trustee. In Ray v. Simmons, 15 Amer. L. R., N. S., 701, and note, the cases are collected; see also Roberts’ App., 85 Pa. 84. And it is immaterial that the husband in this case remains the custodian of the evidence of indebtedness. He had an interest in it, and was the proper custodian. The language used in the mortgage showed an intention to make a provision for the wife. By recording it the arrangement was consummated, and it was irrevocable, except by the consent of the wife. The defendant was a party to the mortgage, and, of course, had knowledge of the provision for the benefit of the wife. If equity will enforce such a trust against the decedent or his estate, it will enforce it against the defendant, who, with a knowledge of the trust, joined in the attempt to deprive the cestui que trust of her property, and especially as he was to derive the benefit therefrom. I am of opinion that the affidavit does not set up facts sufficient to constitute a good defence to this action. The rule to show 'cause is made absolute. An exception was sealed for the defendant to the order making the rule for judgment absolute, and judgment was then entered for the plaintiff and the sum due liquidated at 110,000, conditioned, etc. Thereupon the defendant took this writ, assigning as error the order directing the entry of judgment for want of a sufficient affidavit of defence.
121 Pa. 485National Transit Co. v. Weston (1888)
ERROR TO THE COURT OR COMMON PLEAS OE WARREN COUNTY. No. 107 July Term 1887, Sup. Ct.; court below, No. 42 ■March Term 1886, C. P. On January 12, 1886, an action of trover and conversion was brought by W. W. Weston, Orin Weston and A. Weston, against The National Transit Co., to recover the value of 376.16 barrels crude petroleum oil which had been produced upon a leasehold held by J. D. Gill, delivered to the defendant company for .transportation and storage, and re-delivered by the defendant company to said J. D. Gill. The defendant pleaded, not guilty. At the trial on January 7, 1887, the plaintiffs’ case in chief was closed, when a motion for a compulsory nonsuit was made; thereupon it was agreed by the parties that trial by jury should be dispensed with and the cause submitted to the decision of the court, under the provisions of the act of April 22,1874, P. L. 109. On March 19,1887, the court, Bkown, P. J., filed a decision, which was as follows : FINDINGS OF FACT. On October 18, 1882, H. B. Porter and ’others, being the owners of tract No. 527 in Mead township, Warren county, executed a lease for about twenty acres thereof' to A. R. Curtis, for the purpose of prospecting for and operating in the production of oil. Curtis went into possession and sunk two wells, and on November 29,1882, he gave the plaintiffs a mortgage on the leasehold to secure the payment of a bond of two thousand dollars, given to the plaintiffs at the same time, payable in instalments, the last of which became due September 1, 1883. After the recording of the plaintiffs’ mortgage, under the provisions of an act of assembly relating to the lien of laborers, etc., on leasehold estates and the property thereon in Venango county: Act of April 8, 1868, P. L. 752, extended to Warren county: Act of March 18, 1869, P. L. 410, two liens were entered against the interest of Curtis for work, the first of which was done 'February 12, 1883. Under proceedings on these liens the interest of Curtis in the leasehold subject to the lien of plaintiffs’ mortgage, was sold at sheriff’s sale to J. D. Gill, on November 12,1883. Gill went into possession under Ms purchase, and claimed to hold the same as against the plaintiff's, the mortgagees of Curtis, and as against them as purchasers of the leasehold under proceedings on the bond as hereinafter stated. While in possession and thus claiming, Gill produced and took from the leasehold 376.16 barrels of oil. The defendant was and is a common carrier, engaged in the business of transporting and storing oil, and as such received into its custody from said Gill the 376.16 barrels of oil between April 21, 1884, and March 14, 1885, and delivered the same to Gill at the times and in the amounts as follows, viz.: May 1, 1884, 82.97 barrels; November 26, 1884, 147.81 barrels; and March 19, 1885, 145.38 barrels. The price of oil on May 1, 1884, was 97-f cents per barrel; on November 26, 1884, it was 72| cents per barrel, and on March 19, 1885, it was 82| cents per barrel. After May 1, 1884, and before November 26th of that year, the plaintiffs, by writing bearing date May 15, 1884, notified the defendant of their claim to the oil and of their purpose to hold it responsible therefor. Before and on November 12,1883, the date of Gill’s purchase under the proceedings on the laborers’ liens, the oil from the leasehold had by arrangement with Curtis and in consideration of his indebtedness to the plaintiffs, been run into the custody of defendant and credited on its books to W. W. Weston, one of the plaintiffs, and who was in fact their trustee, but the defendant had no notice of such trusteeship. On December 17, 1883, under execution from judgment on the bond of Curtis to the plaintiffs, to secure which the mortgage mentioned was given, the leasehold was sold to the plaintiffs. On August 9,1884, they brought their ejectment against Gill and afterwards obtained judgment, under which possession was delivered to them on December 2, 1885: [See Gill v. Weston, 110 Pa. 305.] Mr. Gill, while in possession of the leasehold from which the oil in controversy was produced, expended in torpedoing and cleaning out the wells and in producing the said oil, the. sum of $544.19, and there is no evidence that he acted otherwise than in good faith, or that he employed fraud or force or prodticed the oil in any other than the usual way. ■ CONCLUSIONS OI? LAW. The motion for a compulsory nonsuit is overruled. Trover lies by the owner of personal property against a bailee who delivers it to a wrongful bailor, after notice of the rights of the true owner. The defendant was a bailee of the oil for transportation and storage. As incidental to the issue trying, the plaintiffs gave evidence of their title to the leasehold from which the oil was taken. While it is true that Gill was in possession claiming the title, during the timé the oil was being produced, we think his possession was not such an actual adverse possession as will defeat the right of the plaintiffs to maintain this action, under the ruling in Mather v. Trinity Church, 3 S. & R. 509, and succeeding cases. Gill got the possession of the leasehold as the assignee, by operation of law, of Curtis the lessee. His rights can rise no higher than those of Curtis. His possession was after the lien of the plaintiffs’ mortgage attached. He held in subservience to or rather under the title of Curtis, and Curtis held in subservience to the title of his mortgagees, the plaintiffs. Curtis is estopped from denying a title he created, and Gill, claiming under Curtis, is also estopped. One who is estopped is in the same position as one who does not contest the title. We are not aware of any principle of law or justice that entitles the defendant to recoup the expenditures of Gill against the damages claimed for the conversion of the oil. The damages sustained by the plaintiffs, as of the day of filing this decision, including interest by way of damages from the times the same was delivered by the defendant to Gill,' is $350.59. ' The legal propositions presented by counsel are answered as follows: Plaintiffs’ points: 1. That the action of trover lies for the recovery of the value of personal property, against a bailee and in favor of the owner of such personal property, where such bailee, after notice of the rights of such owner and demand for the delivery of the same to him, delivers such personal property to another, even if such other be the original bailor to Mm of the property. • Answer: Affirmed.6 2. That evidence of the title to the real estate from which fixtures or other property constituting part thereof have been unlawfully severed and converted; may be given for the purpose of proving title to the property so severed and converted, in an action by the owner of such real estate to recover the value of such property so converted, against a vendee or bailee of the person unlawfully severing and removing same: that in an action for such property or the value thereof, against a bailee with notice of the owner’s rights and demand made, such evidence is merely incidental to the issue, and may be given, as any other evidence may, serving to establish the ownership of the property involved in the action. Answer: Affirmed.6 3. That neither the owner of the real estate, holding over after sale of the same on execution, nor any one in possession under him, has such hostile and adverse possession as against the purchaser at such sale, as would bar a personal action against either of them by such purchaser, to recover the value of a fixture or other constituent part of the real estate sold, severed and removed by the owner or other person while so holding over: that they are estopped by the judgment and execution from denying the title of the purchaser thereunder, and hence their possession is not to be deemed .in law as hostile and adverse to such title, but in subservience to it. Answer: Affirmed.'5' 4. That since the passage of the act of assembly of May 15, 1871, P. L. 268, relating to actions of replevin, it is and has been lawful for a party to recover in an action of trover the value of property severed from realty, notwithstanding the fact that the title to such realty may be in dispute, provided such party shows title in himself at the time of such severance. Answer: Refused. 5. That the measure of damages, in an action by the owner of personal property, in trover against the bailee, who delivers the same to another after notice of title and demand made, is the value of the property at the time of such delivery. Answer: Affirmed.8 6. That under the undisputed evidence in this case, the finding of the court should be in favor of the plaintiffs for the value of the oil delivered by defendant to J. D. Gill, at the time of such delivery, with interest from the respective dates of delivery. Answer: Affirmed.9 Defendant’s points: 1. That the oil in dispute being a product severed from land by a person in possession under adverse claim of title, who delivered it to the defendant, a common carrier for transportation, and who received it again from the defendant before plaintiffs had recovered possession of the land, this action of trover cannot be maintained. Answer: Refused.10 2. That J. D. Gill having produced the oil in controversy while in actual adverse possession of the land from which it was produced, under a bona fide claim of title, and not having been guilty of any fraud,' force or malice, was only liable for the value of the oil in place, and the defendant having received the oil from him is not subject to any greater liability. Answer: Refused.11 And now, March 19, 1887, if exceptions to the findings of fact or the conclusions of law herein be not filed within thirty days of service of notice of this decision to the parties or their attorneys, the prothonotary will enter judgment in favor of plaintiffs against the defendant for the sum of $850.59 with costs. On May 3, 1887, exceptions filed to the decision by the defendant were overruled, but the findings of fact were modified by additional findings: (1) That there was no agreement or statement, when the leasehold was sold to Gill, to the effect that the sale'was made subject to the lien of plaintiffs’ mortgage; and (2), that A. R. Curtis was in possession of the leasehold from which the oil in controversy was produced, before and at the time of the sheriff’s sale to Gill, and there was no evidence that Gill had knowledge at the time of the sale that the oil from said leasehold was run to the credit of any other person than Curtis, and (3) that the mortgage to the plaintiffs was a leasehold mortgage under the provisions of the act of April 27, 1855, P. L. 369. Judgment having been entered in favor of the plaintiffs, for $350.59, in accordance with the foregoing order, the defendant toot this writ, specifying that the court erred, in finding: 1. That the possession of J. D. Gill of the leasehold from which the oil in controversy was produced, was not such an actual adverse possession as would defeat the plaintiffs’ right to maintain this action. 2. That J. D. Gill’s right under the sale upon the mechanics’ liens could rise no higher than those of Curtis, and in finding that Gill held in subservience to the title of Curtis. 8. That J. D. Gill was estopped from contesting adversely the title and right to possession of the plaintiffs. 4. That the defendant cannot recoup the expenditures of Gill against the damages claimed by the plaintiffs in this case. 5-9. In the affirmance pf plaintiffs’ points.3 t0 9 10, 11. In the refusal of defendant’s points.10 11
121 Pa. 496Elk County v. Earley (1888)
APPEAL EROM THE DECREE OE THE COURT OE' COMMON PLEAS OE ELK COUNTY, IN EQUITY. No. 119 July Term 1887, Sup. Ct.; court below, No. 1 November Term 1885, C. P. in Equity. On November 17, 1885, a bill in equity was filed in behalf of the county of Elk, by its commissioners, against C. R. Earley, Elizabeth Earley and James H. Hagerty, in which it was averred: That on or about November 5, 1848, John J. Ridgway, by deed duly proved and recorded, did grant and convey unto Timothy Ives, Jr., J. W. Guthrie and Z. H. Eddy, commissioners of the county of Elk, and their successors in office, the right to freely use and enjoy from time to time and at all times thereafter, without limit, so much of the water of a large spring upon the grantor’s lands, south of the town of Ridgway, as might be necessary for the use of the county of Elk and her public buildings, with the right to convey the same by means of pipes laid through or upon the land of the grantor to the public square; the surplus of the water, over and above what would be needed for the supply of the public buildings, to be held in trust for the citizens of Ridgway. That soon after the making of said grant, the county, by its commissioners, caused a pipe to be laid to said spring and a portion of the water therefrom to be eonveyed to said public square and for said public buildings, which said pipe (or the substitutes therefor), had been kept and maintained by the plaintiff ever since, and the said water was necessary for the safe and healthful use and occupancy of the public buildings erected and maintained'by the plaintiff. That by reason of the increase of the population and business of the county, necessitating the erection of large and expensive new public buildings, together with the increase of the population of the town of Ridgway, the supply of water afforded by the pipe theretofore in use was wholly inadequate, and it had become necessary for the plaintiff to repair the basin or reservoir collecting and holding the waters of said spring, and to replace the said pipe by one capable of carrying and conducting a larger supply, and the plaintiff had made preparations for such repairs and renewal. That the defendants were in possession of the lands upon which said spring was located and through which the pipe from said spring was laid, and threatened to arrest the agents, servants and employees of the plaintiff if they or any of them entered into or upon said lands for the purpose of repairing said basin or relaying said pipe, by reason whereof the plaintiff was greatly delayed, etc. The‘bill prayed for an injunction, preliminary until hearing and perpetual thereafter, restraining interference with the repairing of said reservoir and the relaying of said pipe; and for other relief. The answer of the defendants, so far as material, admitted the grant to Ives, et al., as alleged, but averred that at the time thereof they were not commissioners of Elk county, and had no authority to receive grants for the use or benefit of the county; denied that any such rights were conferred upon the plaintiff by said grant as was alleged, and averred that Reuben Winslow, John Brooks and Chauncey Brockway were at the date of said grant the commissioners of said county, duly elected, qualified and acting; admitted that the county had laid a pipe from the spring and had maintained it for twenty-one years prior to 1873, for the purpose of supplying the public buildings with water, but averred that C. R. Earley had built and maintained the reservoir now at said spring at his own expense, and claimed the right to keep and maintain the reservoir and premises as they had theretofore been kept; denied that they had ever threatened to arrest the servants of the plaintiff employed to keep and maintain the pipe put in and used by the plaintiff; denied further the right of the plaintiff to enter upon the premises of defendants and to meddle with the reservoir, or in any way disturb the premises any more than was necessary to regulate the supply of water coming to the county buildings, and averred that the water already conveyed by said pipe to said buildings was sufficient for the use thereof, and that the plaintiff permitted the water so conveyed to be misused and wasted. Issue having been joined, the cause was referred to Mr. J. O. Johnson, as examiner and master, who heard the testimony and made report as follows: BINDINGS OP PACT. The county of Elk was erected under the act of April 18, 1843, P. L. 312, and Timothy Ives, Jr., James W. Guthrie and Zachariah H. Eddy, were appointed commissioners with power to accept grants, etc., with a proviso that as soon as the county commissioners are elected and qualified, the duties enjoined on them should cease, and should be performed by the county commissioners so chosen and elected. On November 5, 1843, John J. Ridgway made the grant of this spring and right of way to lay pipes as follows: “ This indenture made.....between John J. Ridgway, of the city of Philadelphia, of the first part, and Timothy Ives, Jr., of Potter county, James W. Guthrie, of Clarion county, and Zachariah H. Eddy, of Warren county, in the state of Pennsylvania, commissioners of the county of Elk, of the second part, Witnessoth: That in consideration of one dollar lawful money of Pennsylvania, paid to the said party of the first part by the said party of the second part, the receipt whereof is acknowledged by these presents, the said party of the .first part for himself, Ms heirs and assigns, covenants and grants with and to the said party of the second part and their successors in office, that it shall be lawful for the said party of the second part and their successors in office and their agents and servants, to freely use and enjoy from time to time and at all times hereafter, without limit, so much of the water of a certain largo spring situate on the land of the said party of the first part, back or south of the town of Ridgway, in the county of Elk, late Jefferson, as may be necessary or convenient to supply the public buildings about to be erected for the said town of Ridgway for the use of the said county of Elk, and for the use of the said public buildings, and for no other use or purpose whatever; and the said party of the first part further covenants and grants with and to the said party of the second part, and their successors in office, that it shall be lawful for the said party of the second part and their successors in office, and their agents and servants, to convey and conduct, by means of pipes laid through or upon the land of the said party of the first part, in a straight or winding course or direction as they may think fit, the said water from the said spring to the public square of the said town, or where the said public buildings shall be erected; all the surplus water of the said spring over and above what will be needed for the supply of the public buildings as aforesaid, is hereby granted by the said party of the first part to the said party of the second part, and their successors in office, in trust nevertheless, for the use and benefit of the inhabitants of Ridgway, who shall be entitled to use and enjoy the same free of all charge and expense, and shall also have the privilege of conducting the same by means of pipes along the streets and alleys of the said town of Ridgway to their respective houses, to be used for their own private advantage, the said pipes not to communicate with the said spring, but with the fountain to be erected at the said public square or place where the water shall be conducted, for the use of the public buildings aforesaid. In witness whereof, etc. This instrument was proven January 13, 1858, and entered for record February 11, 1858, in Elk county, in Miscellaneous Book A, at page 150. On October 16, 1843, Ckauncey Brockway, John Brooks and Reuben "Winslow, qualified as commissioners of Elk county and begun to act as such. On June 10, 1850, the commissioners of Elk county met at their office and entered into a contract with Sylvester Squires to lay a pipe to the spring and bring the water therefrom to the court house, and in pursuance thereof, a 2-inch pipe was laid, and the water was brought to the public square, where it was used for the county buildings and by the citizens of Ridgway. On March 9, 1859, the commissioners of Elk county entered into an agreement with J. S. Hyde to furnish stone pipe and lay the same from the spring to the public square, fix the head of the spring, make a reservoir at the public square and carry off the waste water, the county to pay the expense and the commissioners to have supervision of the work. This was laid and was 2^ inches in diameter. It was brought down to the corner of the public square. A small stone culvert was made at the head of the spring, that was closed by a plank door and locked with a padlock, and the key was held under the control of "the commissioners. The use of the water was continued by both the county and the citizens of Ridgway. On July 7,1859, John J. Ridgway and wife conveyed by deed to Albert "Willis, of Ridgway, out-lot No. 18, it being the lot upon which the spring is, “ reserving the right for the water from the large spring, to be brought to the public square in such way as may be desired, and of repairing and relaying said conveyance at any time without molestation.” Willis went into possession under this conveyance while the pipe that Hyde laid was in existence, and the defendants are in possession under Willis and claim title through him. As I understand they went into possession in about 1873-4. Willis used the water from this spring in common with other citizens of Ridgway, taking it from the surplus at the corner of the public square. In 1874, C. R. Earley, one of the defendants, being in possession of the lands, employed a man to put in a reservoir, and at the same time he laid a pipe from the spring to his house. This reservoir was a small one, about 8 by 10 feet; and this and the pipe laid were without any arrangement with the county, but were done, as Dr. Earley explains, to get purer water. In doing this the county pipe was not disturbed. After Dr. Earley had completed this work in 1874, the flow of water through the county pipe was found to be insufficient for the purposes of the county buildings, and the county commissioners entered into an arrangement with Dr. Earley, whereby he extended his pipe to the corner of the court house lot, and erected a hydrant there at an expense to himself of about one hundred dollars. There has been some conflicting testimony in regard to this agreement...... I think the clear weight of evidence is with the theory that the arrangement made with Dr. Earley in 1874, was only of a temporary character, and not made with the view of surrendering any of the rights of the county to the spring. In 1875, Dr. Earley took out the reservoir, made by him in 1874, and made a much larger one, and built a house over it and expended about $2,000 in doing so. He also extended the pipe from the corner of the court house square into the sheriff’s kitchen at his own expense; the latter he did, it would seem, at the request of the commissioners, but the reservoir was made by him without any agreement with, or authority from, the commissioners to do so. In putting in this new reservoir the county pipe was laid about 6 inches lower in the water than Dr. Earley’s. Nothing more whatever was done with the spring or pipes leading from it, until 1879-80, when the new court house was built. In 1879-80, upon the completion of the new and expensive court house, the county commissioners, in order to properly supply water, laid a 2j-ineh wrought-iron pipe from the spring to the court house, in the place of the stone pipe laid by Hyde in 1859. They run this pipe up to the upper floors of the court house where they took from it a supply for the court house, and from there it conducted the surplus water to the box at the corner of the public grounds; the citizens of Ridgway take water from this box by seven pipes laid to different parts of the town. This state of affairs remained until the summer of 1885, when the commissioners erected and constructed a large and expensive jail and sheriff’s residence, and a much larger supply of water was needed for the county buildings, they being arranged with urinals, water closets, bath tubs, laundry and steam heating apparatus. For some reason, in the summer of 1885, the supply failed to a considerable extent and there was for a month or two prior to the filing of the bill in this case, not enough water for court house or jail, and the supply to the citizens of Ridgway also failed. The county buildings would become unfit for use without a supply of water. This spring is located about fifty-six feet above the level of the ground at the court house. It is shown to be a large spring, that would probably fill a 5-inch pipe, and, if economically used for domestic purposes, would in all probability supply the people of Ridgway, besides the county buildings. There is no other source from which a sufficient supply could be obtained without great expense. In about August, 1885, when the supply of water failed to be enough for the public buildings, the commissioners of Elk county, Gardner, Kronewetter and Carman, contemplating laying 5-inch pipe to the spring in place of the 2^-inch pipe, went together to find the course and the ground occupied by the old pipe. When they came to the land of the defendants, and before they entered thereon, they were met by the attorney of the defendants, who forbid their going on the premises, and threatened to arrest them if they did so. The commissioners obeyed the warning, did not then go to the spring, or upon the defendants’ lands, but went away, and thereupon they brought this action by bill..... CONCLUSIONS ON LAW. It is contended by the defendants that the deed of November 5, 1848,-from John J. Ridgway to Timothy Ives et al., vested no title in the commissioners of Elk county, nor in the county; that lyes et al. were not commissioners at the date and delivery of the deed, and if they had been, a deed to individuals merely describing them as officers of a corporation would vest the title in the individuals, and not in the corporation. It is true that Ives et al. were not at that date the county commissioners. Yet I do not think I should adopt this view in regard to this deed. A plain mistake was made in naming the grantee; but it is clear upon the face of the instrument who the grantee was intended to be. The intention of the grantor is clear, and I think this deed in a court of equity in this state will be treated as if it had been made to the county of Elk. It is the peculiar province of a court of equity to reform deeds and other written instruments that have been made wrong through mistake. It seems to me that the courts properly exercise great care to uphold written instruments and carry out the intention of the parties where it can be done without violating a positive rule of law or a statute. [Discussing Lant’s App., 95 Pa. 279; Lawrence Co. v. Leonard, 83 Pa. 206; Bispham’s Eq. 244; Broom’s Leg. Max. 482; Huss v. Morris, 63 Pa. 372, the master proceeded:] I think that the intention of the grantor to make this conveyance effective for the county of Elk as the grantee, is plain on the face of the deed. There was such a grantee in existence. The mistake in naming Ives et al. is clear. In my judgment this mistake should be corrected in a court of equity, and the intention of the grantor made effectual bjr holding that the county of Elk took a good title under this deed. There was some contention in this case as to the power of the county to take as a trustee for the citizens of Ridgway. I have not thought that the rights of the citizens of Ridgway were directly involved and necessary to be decided in this issue ; but the question would seem to be pretty clearly settled by the case of Lawrence County v. Leonard, and the cases there cited. If I am right in the conclusion that the deed should be upheld, and that the county of Elk may claim a good title thereunder to the easement, then the next thing to be determined is, has the county parted with that title or any part thereof? .... It is earnestly contended by the defendants that a court of equity has no jurisdiction; that the acts alleged in plaintiff’s bill to have been done and threatened by the defendants are not contrary to law and equity; that the mere denial of a right does not constitute a disturbance of the exercise of that right; that in a case situated as this one is the plaintiff should first establish his right in an action at law and then come into chancery if necessary for the protection of the legally established right; that the bill does not allege irreparable injury and must therefore be dismissed. The. industry of the counsel for the defendants has furnished me with a number of authorities that I have carefully examined. ■ The case of Downing v. Baldwin, 1 S. & R. 303, is cited, and the doctrine of that case is sought to be applied to the facts of this case. In that case it appears that the plaintiff asked permission to use a water course that he claimed a right to use, and the defendant refused to,give his permission. The court held this mere denial of the right did not constitute a disturbance of the exercise- of that right. But between that case and the one at bar there is, it seems to me, a clear distinction of importance, upon the facts. In this case the plaintiffs set out to exercise the right claimed, and were met by the defendants at the place of entry on their lands, and were forbid entering thereon, and were threatened with arrest if they did enter. There was something in this on the part of the defendants that was active in its nature, and from which it could be implied that they intended to resist the exercise of the right claimed. It was an act opposing the plaintiffs, accompanied by a threat. Moreover, it would seem to me that equity would have jurisdiction under the circumstances, to prevent a multiplicity of suits, for the constant use of this right is necessary for the public: Bitting’s Appeal, 105 Pa. 521. In this connection the case of Hagner v. Heyberger, 7 W. & S. 104, was cited by defendants. This was a nisi prius decision, and so far as it relates to the question, it seems to have been repudiated by the Supreme Court. In Stockdale v. Ullery, 37 Pa. 487, Lowrie. C. J., says, “The Supreme Court never formally sanctioned the dictum in that case.” And in Wistar v. McManes, 54 Pa. 328, Strong, J., says, “ Our more modern decisions do not recognize the doctrine asserted by Judge Sergeant at nisi prius, 7 W. & S. 104, that our courts are powerless to restrain acts contrary to equity.” But the defendants urge, upon the authority of Rhea v. Forsyth, 37 Pa. 503, that the plaintiff’s rights are not acknowledged, and they must therefore be established at law before resort can be had to a chancellor. The authority of this case I fully recognize. There is a long line of cases to the same effect, among which may be mentioned: Brown’s Appeal, 62 Pa. 17, and Mining’s Appeal, 82 Pa. 373, and their authority remains undoubted; but it does not seem to me that the doctrine of those cases is applicable to the facts of this case. In Rhea v. Forsyth, there was no writing witnessing the right claimed, and there was much conflict in the testimony relating to both the grounds on which the plaintiff rested his claim. In Brown’s Appeal, there was a serious dispute about the very terms of the contract that had not been reduced to writing. In Minnig’s Appeal, the plaintiff’s rights had been made more than doubtful by the finding of the master, and an action of ejectment was pending. In the case in hand the plaintiff’s title is by deed, about the due execution of which there is no dispute. There appears to be no serious conflict in the testimony upon any material point in the case. There is no contention that requires to be settled by a jury. A chancellor may declare the rights of the parties upon the construction of writings and upon facts not seriously controverted. Under such circumstances the right is clear, and it would seem to me that, as it was held in Hacke’s Appeal, 101 Pa. 245, “It need not first be established by a suit at law, nor is it necessary that the owner should prove special damage to entitle him to a decree. In the Commonwealth v. Railroad Co., 24 Pa. 159, it was also held that “in a case where public rights, or private rights secured by contract are invaded, and an injunction is asked for in order to protect them, no question of the amount of damage is raised, but simply one of right.” In Bitting’s Appeal, 105 Pa. 517, it is held that “ when the facts show a legal title in the complainant, it is not a prerequisite to the enforcement in equity of equitable rights incident thereto, that the complainant’s legal title be established in an action at law; that actions at law would not afford an adequate remedy.” I am therefore of the opinion that I should recommend the following decree:..... Among the exceptions filed by the defendants to the foregoing report, overruled by the master and then renewed in court, were the following: That the .master erred 2. In finding as a matter of fact that the arrangement between C. R. Earley and the county commissioners was only of a temporary character.2 9. In finding as a matter of law that the writing from Mr. Ridgway to Ives et al. vested the title to the spring in the county of Elk.6 13. In finding as matter of law that acts allowed to have been done and threatened by the defendants were sufficient to support a bill for an injunction.5 15. In not finding as a matter of fact that the plaintiff’s bill contained no allegation of irreparable injury.10 18. In not finding as a matter of law that a court of equity had no jurisdiction in this case, until the rights of the parties were settled by an action at law.8 25. In finding as a matter of law that a court of equity had jurisdiction to construe the writing from Mr. Ridgway to Ives et al., dated November 5, 1843.12 After argument of the said exceptions, the court, Mayer, P. J., on May 27, 1887, filed an opinion confirming the report of the master, and signed a decree which was as follows : And now, to wit, May 23, 1887, this cause came on to be heard and was argued by counsel, and thereupon, upon consideration thereof it is ordered, adjudged and decreed as follows, viz.: That the defendants in this case be perpetually enjoined from molesting, hindering or impeding the plaintiff, her agents, servants or employees, and preventing them from fixing, repairing or rebuilding the reservoir at the spring on the out-lot 18, or relaying or repairing the pipe or pipes leading therefrom to the public square, or entering or re-entering upon the lands when, where and in such manner and way as may be necessary for the purposes above named. The plaintiff having received the benefit of the improvements made by the defendants to the spring, it is ordered that the plaintiff pay the costs. The defendants then took this appeal, specifying as error, inter alia: 2. The overraling of defendants’ 2d exception.2 5. The overruling of defendants’ 13th exception.5 6-12. The overruling of defendants’ other exceptions.6 *°18
121 Pa. 511Shurley v. N. Y., L. E. & W. R. Co. (1888)
EBROK, TO THE COURT OP COMMON PLEAS OP MCKEAN COUNTY. No. 145 January Term 1887, Sup. Ct.; court below, No. 600 September Term 1881, C. P. On September 2, 1881, an action in case was begun by John T. Sburley against The New York, Lake Erie and Western Railroad Company, to recover the value of a mare killed by a train on the defendant company’s road. At the trial on October 20, 1885, the testimony on the part of the plaintiff showed that on July 18,1881, at Kendall Creek, McKean county, he was having a valuable mare kept at the Bradford Driving Park in training for “ trials of speed.” The driving park was near to the defendant company’s track, thirty or fifty feet therefrom.. It was the custom of the keeper to turn the mare, with other horses kept by him, into the park at night for pasture, and on the night of the date mentioned plaintiff’s mare got out of the park and wandered upon the railroad track, where she was struck about midnight by an excursion train run by the defendant company, and killed. Evidence was given tending to show negligence on the part of the defendant company’s employees in charge ■ of the excursion train, but the case was made to turn upon the construction of the act of Márch 28, 1868, P. L. 514, entitled, An act for the protection of farmers and owners of cattle, horses, sheep and swine, along the line of railroads in the county of Warren, section 1 of which provided: That for the protection of farmers and owners of cattle, horses, sheep and swine residing along the line of any railroad now constructed or that may hereafter be constructed in the county of Warren, all railroad companies, when railroads are completed, and on which they are now running trains in said county, shall, before the first day of September, one thousand, eight hundred and sixty-eight, construct and keep in repair, or cause to be constructed and kept in repair' a good and sufficient fence at least four feet high along their tracks, except through incorporated boroughs; and also construct sufficient cattle-guards at all road crossings sufficient to prevent orderly cattle, horses, sheep and swine from straying upon any railroad track in said county; and all railroads that may hereafter be constructed in said county, are hereby required to construct such cattle-guards before running trains thereon. By the supplement of April 17, 1869, P. L. 1125, the act quoted from was extended to the counties of Bradford, Mc-Kean and Venango, and § 1 of said supplement provided: That if any company referred to in said act shall neglect to perform the duties imposed by said act, the company so offending shall be answerable to the owners of cattle, horses, sheep or swine, to the value of the property injured upon said roads in consequence of such neglect. It was admitted that the defendant company’s road was constructed through McKean county prior to 1868. Thomas Stanley on the stand: Plaintiff’s counsel proposes to prove by the witness that at the point where the plaintiff’s horse entered upon this track, and for quite a distance either way, it was open to the public leading from the main road, about thirty rods away east from the road, and that it was not fenced and never had been fenced by the defendant, as required by the statutes. Objected to as incompetent and irrelevant, and also for the reason that the railroad company was not bound to fence its road. By the court: I think we will [not] let you prove it was not fenced, and if we are of the opinion that we have heretofore promulgated, on the final argument of the case, we will say that it makes no difference, and you can have the benefit of the question. We will rule against you in this and give you an exception. Evidence was given on the part of the defendant tending to rebut the evidence of negligence adduced in the plaintiff’s case. The court, Olmsted, P. J., charged the jury : In the view which we take of this case, there is nothing in the case to submit to the jury, and we withdraw it from the jury. Our predecessor, and we have followed in his footsteps— ■whether right or wrong, I cannot say — held that the act of 1868, passed for Warren county and subsequently extended to the county of McKean, does not apply to the defendant company. We have held that it was impossible that it could apply, under the phraseology of the act of assembly. If that did apply to the defendant company and they were bound to keep the road fenced, we think under its provisions the plaintiff would be entitled to recover in this case. But thinking as we do, that this act does not and cannot apply, by the very terms and language of the act, although very likely it was intended to do so, we cannot hold that the plaintiff can recover in this case. We think this case is ruled by the decision reported in 11th Wright and read here by the counsel; that this plaintiff’s horse or mare strayed upon the railway; that no matter, though he may have intended to have kept her inclosed, yet she strayed upon the railway, and he could not recover for any injury that was done to her in consequence of it. She was a trespasser on this railway, and he could not therefore recover and the defendant is not liable. I do not think there is any evidence in the case showing such gross carelessness on the part of the railway as makes it our duty to submit the case to the jury on the question whether or not there was gross carelessness. Plaintiff’s points: 1. The court is requested to charge the jury that if they believe from the evidence that the defendant’s railroad was not inclosed by a proper fence, and that the plaintiff’s horse without the fault or knowledge of plaintiff, was killed while on said railroad by the defendant’s train, that then their verdict should be for the plaintiff. ' Answer: Refused.1 2. That if the jury find from the evidence that the defendant’s railroad was constructed and operated as such before March 28, 1868, and if in a reasonable time after the passage -of the act of April 17, 1869, extending the provisions of said ■act of March 28, 1868, providing for the protection of farmers .■and owners of cattle and horses along the line of railroads in Warren county, was not fenced or inclosed as provided for in «aid act, and that the plaintiff’s horse, while on the defendant’s railroad track, by the carelessness of the agents of the defendant was struck by a locomotive and killed, that then their verdict must be for the plaintiff. Answer: Refused.3 8. If the jury find from the evidence tha.t the plaintiff’s horse was on the defendant’s railroad track, without his fault or knowledge, and was killed by being struck by one of the defendant’s locomotives while passing over said railroad, and should believe from the evidence that the defendant’s agents having charge of said locomotive and train could, by the exercise of ordinary diligence have avoided the accident, that then their verdict should be for the plaintiff for damages sustained. Answer: Refused.3 4. If the jury believe from the evidence that at the time of the accident the train was running at a greater rate of speed than usual upon said road, that it of itself would be carelessness and negligence upon the part of the defendant, and that their verdict should be for the plaintiff. Answer: Refused.4 Defendant’s point: 1. That the horse of the plaintiff was a trespasser on the track of the defendant’s railroad, and there being no evidence that the injury to said horse was wantonly inflicted by the defendant or its agents, the plaintiff cannot recover, and the verdict should be for the defendant. Answer: Affirmed.5 We think that the plaintiff cannot recover and we negative the points that have been presented by the plaintiff’s counsel and affirm the point presented by the defendants’ counsel, and direct the clerk to enter your verdict in favor of the defendant. If we are wrong we will be corrected by the court above us. The jury returned a verdict for the defendant, and judgment having been entered thereon, the plaintiff took this writ assigning as error: 1-4. The answers to the plaintiff’s points.1 to 4 5. The answer to the defendant’s point.5
121 Pa. 520Duncan v. Sherman (1888)
ERROR TO THE COURT OE COMMON PLEAS OE WARREN COUNTY. No. 371 January Term 1888, Sup. Ct.; court below, No 21 September Term 1886, C. P. On July 1, 1886, a summons in ejectment was issued at the suit of R. C. Duncan against J. W. Sherman, to recover possession of two oil leaseholds, which together formed a part of lot 109 in Mead township. On November 18th, the defendant appeared and by his attorneys filed a disclaimer of all right, title and interest in the leaseholds, and averred therein that he had never been in possession of the premises described in the writ, either before, at the time of the suit, or after. On November 30th an alias writ was served upon J. F. Keifer. On November 21st, following, J. W. Sherman pleaded not guilty. At the trial on January 14, 1888, by agreement the jury were sworn as to J. W. Sherman alone. The plaintiff then showed a judgment, 11. C. Duncan v. J. W. Sherman, entered on March 10, 1883, and executions therefrom resulting in a sale on May 10, 1886, of the judgment defendant’s interest in the leaseholds to the plaintiff in the judgment. As evidence of possession by defendant of the leaseholds in dispute, the writ was then put in evidence followed by the testimony of witnesses as to the presence of the defendant and his acts done upon the leases at different times, at and before the levies were made and since, and the plaintiff rested. In the defendant’s case in chief: Defendant offered in evidence a lease dated April 27, 1882, from Butterfield and others to Alfred Short, together with an assignment by Alfred Short to Mrs. Annie Sherman, dated September 9, 1885, for the purpose of showing title in Mrs. Sherman, and that Mr. Sherman never did anything on the property, prior to September 9, 1885,- and then did what he did do as the agent of Mrs. Sherman; to be followed by evidence that the property was paid for by Mrs. Sherman out of her own means; this for the purpose of showing that Mr. Sherman was not in possession in his own right, but under his wife. The offer was objected to, as incompetent and irrelevant; the defendant, being the defendant in the execution whose property was sold,'cannot set up an adverse title as against the purchaser and vendee at the sale. By the court: The controversy here, not being in regard to the title, but in regard to the possession of the defendant, J. W. Sherman, the lease is admitted as evidence preliminary to showing the character of the acts done by him, only; beyond this, it is rejected. So much of the offer as proposes to show an assignment of the lease to Mrs. Sherman, is admitted only as preliminary to proof that the acts, given in evidence by the plaintiff to show the defendant’s possession, were acts done by him solely as the agent of Mrs. Sherman. Two other assignment of leases dated September 9,1885, by Alfred Short to Mrs. Annie L. Sherman, covering other portions of the property in. dispute, were then put in evidence under the foregoing offer. Under objection as incompetent and irrelevant under the pleadings, and exception sealed for plaintiff, but admitted as showing the character of the acts done by him in connection with the leaseholds, the defendant then put in evidence the testimony of-Mr. and Mrs. Sherman and others, in substance,, that defendant had never had anything to do with the leaseholds before September 9,1885, and all that he did with reference thereto after that date was as the agent of Mrs. Sherman, such as occasionally directing and helping in the operation of the leaseholds, paying employees with her checks and currency, etc. The court, Brown, P. J., charged the jury and answered the points presented: [We think that under the evidence, the defendant having disclaimed title to the land and all right to the possession of the property, the sole question in the ease is, who shall pay the costs? And it would seem that question has been given about the same attention that would have been given, had the case involved title to the land itself.] 10 This suit was brought on July 1, 1886. Service was made on the defendant on July 16, 1886. We say to you now, although, as a preliminary item of proof, we admitted in evidence the assignments of the leases including this land, from Short to Mrs. Sherman, that there is no evidence of any title in Mrs. Sherman and so far as this is concerned, we throw it out of the case altogether. In order to maintain an action of ejectment, two things are necessary: First, it is necessary to prove a right of possession in the plaintiff; and so far as that is concerned, as against the defendant, J. W. Sherman, that right is shown. But that is not sufficient. If one of you have a claim to a piece of land, you can only maintain an action of ejectment for it against the person who was in possession at the time of the bringing of the suit, or at least at the time of the service of the writ. This brings us to what we regard as the material question in this case. Was the defendant, J. W. Sherman, in the possession of this land at the time of the bringing of this suit, or at the most, at the time of the service of the writ, July 16, 1886? If he was, then you find a verdict against him for the costs. If not, then you find a verdict in favor of the defendant. So far as the question of possession is concerned, the sheriff’s return of the writ, given in evidence, is prima facie evidence that the defendant was in possession. But it is only prima facie evidence, and is subject to be rebutted. [In addition to the service by the sheriff, evidence has been given of acts done by Mr. Sherman, the defendant, in connection with the land; overseeing to some extent, and to a certain extent employing hands and giving directions in regard to it, and I believe, as stated by Mr. Sherman, in some instances paying them either by the check of Mrs. Sherman or by currency. So far as this is concerned, we say, that whether Mrs. Sherman had any title or not, if she claimed title and if Mr. Sherman did all these acts simply as her representative, or merely as her agent, then he had no possession of the property, any more than if one of you had been hired to go there and look after the property, and do the same acts that he did.] 11 . . . [I have endeavored to call your attention to what I think is the real question in the case. And we repeat that the mere acts by Mr. Sherman, as the agent of his wife, if such was the fact, did not give him any possession of the property, nor subject him to an action of ejectment, any more than if you hired a man to oversee your farm, and harvest your crops, and put them into the barn, it would render the man thus employed subject to an action of ejectment for the farm. We say to you, if under this evidence, you find that the defendant was in the possession of the property, that is, if he was there claiming it as his own, exercising acts of ownership over it as his own, then you can find a verdict in favor of the plaintiff. We will determine the question of costs afterwards. On the other hand, if he was there simply as the agent and representative of Mrs. Sherman, whether she had any title to it or not, he disclaiming title, then the verdict should be for the defendant.] 12 We will read the points of the plaintiff and answer them together. 1. That a defendant in possession of land at the date of a sheriff’s sale thereof as his property, cannot, in an action of ejectment brought by the purchaser at such sale to recover possession of the land sold, set up an independent adverse title to defeat the plaintiff’s title acquired at such sale, nor to justify his retention of possession; by such sale the purchaser becomes entitled to the possession of the debtor.1 2. It is a presumption of law, in a contest between a married yoman and her husband’s creditors, that property either real or personal purchased or acquired by the wife after marriage, and in the joint possession of the husband and wife, or in the possession, management, and control of the husband, belongs to the husband; and, upon a sheriff’s sale thereof as the husband’s property, the purchaser as a matter of law becomes entitled to the possession of such property as against the husband, or as against any claim of the wife, unless she shows affirmatively, by clear and satisfactory evidence, that she purchased and paid for it with means not derived from her husband, or, if upon credit, that she had a separate estate, independent of her husband, and that such purchase was upon the faith and credit of such separate estate; and the burden of proof is on her to show these facts by a preponderance of evidence before she can hold such property as against her husband’s creditors.8 3. • It appearing from the proofs and records in evidence that R. C. Duncan, the plaintiff in this action, was a judgment creditor of J. W. Sherman as whose property the lands in question were sold, and that an assignment of the lease or title to such lands, was made by Alfred Short to Mrs. Ann L. Sherman, the wife of said J. W. Sherman, in the face of such indebtedness, in the absence of clear and satisfactory proof on claim of title by the wife, that she purchased and paid for it with money not derived from J. W. Sherman, her husband, or that she had a separate estate and that such purchase was upon the faith and credit of such separate estate, the presumption of law is that the title or lease of said lands was purchased and paid for with money or credit of the husband; and, no conveyance appearing to have been made out of him, that, he was the legal owner thereof at the date of the sheriff’s sale, and the plaintiff is entitled to recover possession of said lands as the purchaser of J. W. Sherman’s title, which the law presumes was in him.3 * 4. A married woman cannot purchase either real or personal estate upon credit and sustain her claim of title, until she shows by clear and satisfactory proof that she' not only has a separate estate and money of her own, but that such purchase was paid for with her own money or obtained upon the faith and credit of such separate estate, and the products and earnings of property so purchased, as well as the property acquired with the money derived therefrom, belong to the husband, as between the wife and his creditors.4 5. That it requires the same degree of proof as to the wife’s title where a husband attempts to justify his possession of lands sold at sheriff’s sale as his property by a judgment creditor, as it would in a contest directly between such creditor and the wife; and, before he would be entitled to retain possession under her title, he must show by clear and satisfactory proof all the elements to make her title good, and if the evidence falls short of these requirements, the plaintiff is entitled to recover.3 7. There is no evidence that the property in controversy, was or is, the property of Ann L. Sherman, and in the absence of such proof the presumption is that the property belonged to J. W. Sherman, down to the time it was sold to the plaintiff, and he, J. W. Sherman, cannot explain his acts in connection with it by showing that he was the agent of his wife in managing his own property.6 9. To show possession it is not necessary to prove that the defendant was living upon, or raising grain, upon the land. Acts of managing and controlling property, when proved, are facts from which the jury may infer possession.7 10. If the plaintiff is entitled to recover, he is entitled to a verdict for the land in controversy, and legal damages and costs.8 In answer to these points we say to you, that so far as the points are in accordance with what we have said to you was the controlling question in. this case, they are affirmed.’ And so far as they are not in accordance with the opinion we expressed in the general charge, they are refused.9 [We may add, that the fact that the defendant is the husband of Mrs. Sherman, so far as the question before you is concerned, should have no bearing upon the question, provided you believe their testimony is correct. The rights of the wife are as distinct from those of the husband as those of strangers, and should be so regarded, so far as the question in this case is concerned, which we repeat, is simply the naked question, whether at the time of the service of this writ J. W. Sherman was in possession of this property, claiming it as his own, or was he overseeing it, and doing the acts that are claimed to indicate possession, as the agent of his wife. If the former, the plaintiff is entitled to recover. If the latter, the verdict should be for the defendant.] 13 The verdict of the jury was in favor of the defendant, and judgment being entered thereon, the plaintiff took this writ, specifying that the court erred: 1-8. In not specifically affirming the plaintiff’s 1st, 2d, 8d, 4th, 5th, 7th, 9th, and 10th points.110 8' 9. In reading and answering all the plaintiff’s points together, and in not answering each point separately. 10-13. In the parts of the charge embraced in [ ] 10 to 13
121 Pa. 530Short v. Ames (1888)
ERROR TO THE COURT OF COMMON PLEAS OF MCKEAN COUNTY. No. 82 January Term 1888, Sup. Ct.; court below, No. 219 May Term 1887, C. P. On April 5, 1887, upon tbe petition of Sampson Short, a lien creditor of Childs, Willis & Loomis, the court below ordered a feigned issue to try the validity of a certain mechanics’ lien filed by P. W. Ames and O. Keese, trading as Ames & Keese, against R. H. Childs, William Willis and E. R. Loomis, trading as Childs, Willis & Loomis. In the issue as framed Ames & Keese were plaintiffs, and Sampson Short, defendant. At the trial on June 21, 1887, it was made to appear that in the fall of 1882, Childs, Willis & Loomis completed the erection of an oil refinery in Kendall borough, and on February 12, 1883, made an assignment to Alfred Short for the benefit of creditors; that on May 17, 1883, Ames & Keese filed a claim against Childs, Willis & Loomis, for a lien under the act of June 13, 1836, P. L. 696, and its supplements, for materials furnished by them “ for and about the erection and construction of several buildings and a certain oil refinery erected within the county of McKean, hereinafter more particularly described.” The material parts of said claim were the following: The said Childs,'Willis & Loomis were the owners of said buildings and oil refinery at the time when the same were commenced, and with whom the contract of the said Ames & Keese therefor, was made. The amount claimed to be due to them, the said Ames & Keese, is $2,002.49. This sum is due for materials furnished, such as engines, steam pumps, stills, fittings, etc., by the said Ames & Keese, for and about the erection and construction of said buildings and oil refinery. * * ******* * Said buildings and oil refinery are situate in the county of McKean and state of Pennsylvania and is bounded and described as follows, to wit: All that certain piece or parcel of land situate in Foster township, Mc-Kean county, Pennsylvania, bounded and described as follows, to wit: On the north by the Tunuugwant creek; east by a small stream or gulley emptying into the said creek; south by land of Rochester & Pittsburgh Railroad; west by land of Philo Ackley; containing four and one third acres, more or less, being the same land conveyed to Childs, Willis & Loomis by Melvin Brothers, by deed dated tje-day of July, 1882. And having buildings and machinery erected thereon, consisting of boiler and boiler house, tanks and tank houses, stills, warehouse and barn, and donkey pumps, engines and fittings. It also appeared that on July 20, 1883, Alfred Short, the assignee of Childs, Willis & Loomis, had sold the oil refinery property discharged of liens, under order of the Court of Common Pleas, and that an auditor was appointed to distribute the purchase money. During the hearing before the auditor, a rule taken to show cause why the said mechanics’ claim should not be stricken off, was discharged, when this issue was applied for and awarded. The facts and questions arising, so far as material, sufficiently appear in the charge to the jury, Olmsted, P. J., which after reviewing the evidence proceeded: Now that is really the question you are to determine, whether Ames & Keese, the plaintiffs, had a valid lien against the land that was assigned to Alfred Short, and from the sale of which the fund was raised that came into the court for distribution. * * * * * . * * * We have been requested by defendant’s counsel to answer certain points in writing, which we will now do. 1. The property against which the attempted lien is filed, is not the subject of a mechanics’ hen, and the claim of the plaintiffs cannot be sustained. Answer : We answer this point in the negative. It is one of the doubtful questions, and perhaps the doubtful question in the case.3 2. The articles alleged to have been furnished, and for which the attempted lien is filed, are not such as will enable a lien for them to be sustained against property of the character described in the plaintiffs’ statement filed. Answer : We answer this point in the negative. It is substantially the same question that is raised in the first point.4 ******** 4. Under the facts shown plaintiffs are not entitled to recover, and the verdict should be for the defendant. Answer: We answer this point in the negative, as we cannot unqualifiedly affirm it.3 Now, gentlemen of the jury, we have by our answers to the legal points that have been suBmitted, said to you that this property, if it is what it is described to be, is such a property as may be the subject of a mechanics’ lien. That question is not one, therefore, for you, and we say to you now if you believe from the evidence in the case that the plaintiffs, Ames & Keese, sold and delivered to the defendants these items that have been gone over in your presence, amounting to some $1,800 and upwards, upon the faith and credit of an erection that was to be made by Childs, Willis & Loomis upon a piece of land in Tarport, and that the last item of goods shipped was delivered, or shipped for delivery, that would be delivered, probably, on November 18th, and the hen was entered on May 17th, we say that that was within six months and within the meaning of the law. ******** The jury, upon the several issues of fact submitted, found for the plaintiffs, and judgment being entered, the defendant took this writ assigning as error, inter alia : 2-4. The answers to the defendant’s points.3 *° 4
121 Pa. 537Morse v. Rollins (1888)
1. The courses and distances in a deed always give way to the boundaries found upon the ground, or which are supplied by proofs of their former existence, when the marks or monuments are gone: Lodge v. Barnett, 46 Pa. 477. 2. The deed, under which a defendant in ejectment claimed, called for a line of a certain length. The fact was, that by a survey made by the parties to the deed, that line was marked upon the ground of a shorter length and the deed afterwards drawn with the difference unobserved: Held, that the line of the deed must be controlled by the line as marked on the survey.
121 Pa. 543Ford v. Kendall Bor. Sch. District (1888)
ERROR TO THE COURT OF COMMON PLEAS OF MCKEAN COUNTY. No. 411 January Term 1888, Sup. Ct.; court below, No. 580 October Term 1884, C. P. On September 19, 1884, an action in case was brought by DeVere Ford, by her father and next friend, Joseph Ford, against The School District of Kendall borough. The plea was, not guilty. At the trial on July 20, 1887, before Neale, P. J., 33d district, specially presiding, tlie case of the plaintiff was shown by evidence that on January 30,1882, DeVere Ford, a young lady of 19, a pupil at tbe public school of the defendant district, was standing with other pupils at the st.ove of the sebool room, in wbicli the janitor employed by the district was endeavoring to start the fire. Failing to get a fire to his liking, the janitor threw into the stove a dish of crude petroleum, when an explosion occurred followed by a flame of burning oil which seriously burned and injured the plaintiff, as well as others of the pupils. There was evidence tending to show that the board of directors had been informed of such use of petroleum by the janitor, before the occurrence of the accident; that they had discussed the subject, but had taken no steps to prevent it. At the close of the plaintiff’s case, the defendant’s counsel moved the court for the entry of a compulsory nonsuit, on the ground that the school district could not be made liable for the negligence of the janitor. The motion was allowed, a compulsory nonsuit entered, and rule granted to show cause why the nonsuit should not be taken off. On January 81, 1888, the court filed an opinion refusing the motion to take off the nonsuit, when the plaintiff took this writ, and assigned the entry of the nonsuit and the refusal to take it off as error.
121 Pa. 550McClure v. Jones (1888)
No. 216 January Term 1887, Sup. Ct.; court below, No. 85 December Term 1879, C. P. On October 9, 1879, an action of ejectment was brought by Powhatan (alias dictus, “Potan”) McClure against Jane Jones, to recover a small lot of ground in the East ward of Uniontown. The plea was not guilty.
121 Pa. 563Dunbar Furnace Co. v. Fairchild (1888)
ERROR TO THE COURT OF COMMON PLEAS OF FAYETTE COUNTY. No. 50 January Term 1888, Sup. Ct.; court below, No. 168 September Term 1881, C. P. On August 25,1881, an action of trespass q. c. f. was brought by John W. Fairchild, W. W. Fairchild. J. A. Fairchild and others, against The Dunbar Furnace Company. The narr, filed September 5, 1881, charged that the defendant on September 1, 1881, with force and arms broke and entered the plaintiffs’ close in Dunbar township, containing about 362 acres, and “ then and there mined, dug and carried away the iron ore and other minerals therefrom, and felled and carried away the timber thereon standing and growing, and other wrongs then and there to the plaintiffs did, against the peace and dignity of the commonwealth of Pennsylvania and to the damage,” etc. The defendant pleaded not guilty. On November 27, 1886, the plaintiffs by leave of court, under objection and exception to defendant, filed an amended narr, which as again amended on' the trial contained the count following: ’And for that the plaintiffs were in peaceable possession of the lands aforesaid, and had so been possessed of the same for a long time before the bringing of this suit, the defendant knowing that the said land did not belong to the said defendant, but belonged to the plaintiffs, the defendant did wrongfully and wilfully enter upon and cut, take and carry away large amounts of growing timber, then and there being and standing upon said land, and did convert the said timber so cut as aforesaid by the defendant to the defendant’s own use, which said timber was of the value of ten thousand dollars, to the damage of the plaintiffs of three times the value of said timber, to wit, of $30,000.1 The defendant added the plea of the statute of limitations. At the trial on December 13, 1886, the facts shown were in substance, the following: On April 1, 1854, John Martin, owning a tract of mountain land containing about 362 acres, and known as part of the John Parker, Sr., tract, made an agreement in writing with his son, William J. Martin, providing that, in consideration of $200 to be thereafter paid, “said John Martin doth agree to grant to said William J. Martin the right and privilege of digging all the ore-on his place and lands.” This agreement, with payments amounting to $150 indorsed on it, was recorded on November 10, 1855. On January 21, 1862, by deed recorded the next day, John Martin and wife conveyed to Catharine C. Fairchild “all the estate, right, title, claim and interest ” of the grantors in said tract of 362 acres. Catharine C. Fairchild died in October, 1865, leaving to survive her her husband, Alexander Fairchild and the plaintiffs, who were her children. On November 15, 1865, Alexander Fairchild by a contract under seal agreed with the Youghiogheny Coal & Iron Co., to grant, bargain and sell unto the said party of the second part the free and uninterrupted right of way in, upon and out of, all that certain tract of land, situate in Dunbar township, aforesaid, conveyed by deed of John Martin and wife to Catharine C. Fairchild, being part of the tract called by name of John Parker, Sr.,.....for the uses and purposes following, namely: To build and construct and use tram or other roads, to build cabins, houses, etc., near the line of the tram road; to dig and mine iron ore and remove the same off the premises ; to cut and make use of such timber growing upon said premises (except such chestnut oak trees as will make bark, and locust timber trees) as may be needed for constructing and using such roads and mining or digging and removing said iron ore: together with all the liberties and privileges incident to or necessary for the full enjoyment and use of said land and premises for the purposes hereinbefore specified, the said company agreeing to do no unnecessary damage and to avoid all injury to the crops or farming of said land; the said use and enjoyment, rights and privileges to commence immediately upon the execution of this agreement. In consideration of the premises the said parly of the second part hereby covenants and agrees to grant and convey to said party of the first part that certain piece or parcel of land situate in said township, adjoining land now owned by or in possession of said Fairehild on the east side thereof, and to commence on the northeast corner of said Fairchild’s land, and running thence.....a distance that will include 100 acres by returning to the starting point, excepting and reserving to said company all iron ore, coal or other minerals therein, and all necessary mining rights and privileges for the obtaining and removing the same.....The said party of the second part hereby agrees to make and deliver to said party of the first part a good and sufficient deed for said piece of land of 100 acres, with allowance, on receiving a good and sufficient deed from said Fairchild, etc. , . . . . It was shown that the Fairchilds moved upon the tract in dispute in 1868, and the defendant claimed that the plaintiffs worked ore in the land and used timber therein, in the employ of the Youghiogheny Coal & Iron Co. Alexander Fairchild died in 1872. It was agreed on the record that the plaintiffs’ and defendant’s title, as put in evidence at a former trial on May 4,1886, should be considered in evidence, and it was stated in the paper book of the defendant, though the papers themselves were not shown, that “ These papers put the title of William J. Martin to the ore in the John Parker, Sr., or Fairchild tract, in the defendant, and the title of the Youghiogheny Iron & Coal Co. to the timber, also in the defendant, prior to the trespass alleged in this case.” The defendant took possession and began mining operations upon the land in 1876. It was agreed that the quantity of ore mined should be considered for the purposes of the trial to be 82,006 tons. J. A. Fairchild, one of the plaintiffs, testified in chief as to the value of the timber cut and used, to a ton of ore mined. On cross-examination, it was .proposed by the defendant to ask: Q. What would it be worth to cut and haul and put it in place ? A. It would be owing to the kind of roof. Q. Well, what would be the average price per ton ? Objected to by plaintiffs as not a proper cross-examination. By the court: Objection sustained.2 The court, Inghram, P. J., charged the jury that no recovery could be had for the value of the ore mined, as the defendant held the title of William J. Martin under the contract with his father of April 1, 1854, but plaintiffs were entitled to recover the value of the timber cut and carried away during six years prior to the time the suit was brought. The defendant’s points were thus answered: 1. That under all the evidence in this case, the plaintiffs are not entitled to recover for the ore taken. Answer: Affirmed. 2. That under all the evidence in this case, the plaintiffs are not entitled to recover for the timber taken. Answer: Refused.3 3. That if the jury find from the evidence that the defendant company or those under whom it claims, at the time the title to the premises vested in the plaintiffs, was taking the timber off this land under a bona fide claim of right, and continued to do so till after the bringing of this suit, the defendant had such possession as would prevent a recovery for the timber. Answer: Refused.4 4. That, under the pleadings and evidence in this case, the plaintiffs cannot recover treble damages for the timber cut and removed by the defendant. Answer: Refused.5 5. That if the plaintiffs knew that the defendant was cutting and removing the timber under a bona fide claim of right, and made no objection thereto, they cannot take advantage of the act of March 29, 1824, and recover treble damages. Answer: Refused.6 6. That under the act of March 29,1824, to prevent a recovery of treble damages, an affirmative consent of the owner of the timber is not required; an implied consent is sufficient. Answer: Refused.7 7. That the act of March 29,1824, under which part of the claim in this suit is made, was intended only to prevent the wilful or careless cutting of another’s timber; and that if the jury find from the evidence that the defendant cut and removed the timber under a bona fide claim of right, the plaintiff, if entitled to recover at all, cannot recover treble damages for cutting and removing the same. Answer: Refused.8 8. That if the plaintiffs knew of, and acquiesced in defendant’s cutting and removing the timber and made no objection thereto, the jury may find that it was done with plaintiffs’ consent, and that, therefore, if entitled to recover at all, they cannot recover treble damages. Answer: Refused.9 9. That if the jury find from the evidence that the plaintiffs knew of and acquiesced in defendant’s cutting and removing this timber, and shortly prior to the bringing of this suit demanded of defendant the deed for the one hundred acres of land referred to in the agreement of November 15, 1865, between Alexander Fairchild and the Youghiogheny Iron & Coal Co., this would show plaintiffs’ consent to the defendant’s cutting and taking the timber, and there could be no recovery of treble damages in this action. Answer: Refused.10 10. That under all the evidence in this case, the plaintiffs are not entitled to recover. Answer: Refused.11 The jury returned a “ verdict for the plaintiffs, single damages and interest amounting to $2,820.70.” On December 16, 1886, a rule on defendant was entered, to show cause why the amount of damages found by the jury should not be trebled. On September 15, 1887, the rule was made absolute and judgment entered for the plaintiffs for treble damages amounting to $6,962.10.15 The defendant then took this writ. The errors assigned were: 1. The permission to file the amended narr.1 2. The refusal of the defendant’s offer.8 8-11. The answers to defendant’s points.3 *°11 12-14. The inadequacy of the instructions as to the measure of damages. 15. The order trebling the amount of damages found by the verdict.15
121 Pa. 573Moreland v. Moreland (1888)
ERROR TO THE COURT OF COMMON PLEAS OF EAYETTE COUNTY. No 416 January Term 1888, Sup. Ct.; court below, No. 224 June Term 1888, C. P. On May 15, 1883, William H. Moreland, Mary Moreland and Louisa Craig, brought an action of ejectment against Mary W. Moreland, Laura Moreland and four others, the widow and children of John H. Moreland, deceased, to recover the undivided three fourths of a tract of 181 acres in Dunbar township. The plea was not guilty. At the trial on September 29, 1886, it was shown in evidence, in the plaintiffs’ case in chief, that David Moreland and Alexander Moreland were brothers, owning and. residing, respectively, upon adjoining farms in Dunbar township, that of Alexander being the one in dispute. Alexander was a bachelor; David was a married man with a family of children. Alexander died of cancer on August 11, 1862, aged about seventy-five years, intestate, and leaving his brother David as his only heir at law. David Moreland died, also intestate, on January 8, 1877, leaving to survive him, as his heirs at law, John H. Moreland, William H. Moreland, Mary J. Moreland and Louisa (Moreland) Craig. The last three named were the plaintiffs. John H. Moreland died on October 24,1881, intestate, and leaving to survive him Mary W. Moreland, widow, and Laura Moreland and others, children. The plaintiffs then showed that the widow and children of their brother, John H. Moreland, deceased, were in possession of the land in dispute, and rested. To sustain title in themselves, the defendants, in their ease in chief, showed that John H. Moreland was married in 1856, .md about that time or a little before, his. uncle made a parol gift of the farm in dispute to him, if he would come upon the farm, live with and take care of the donor, who was much crippled with rheumatism. John H. Moreland occupied the ■farm and exercised acts of ownership and control over it until he died. He occupied, with his uncle Alexander, the old house on the farm, and in 1867, five years after his uncle’s death, he built a new house near by, at a cost of three or four thousand dollars. After his death his widow and children, the defendants, remained in possession until the trial. Witnesses were called who testified to declarations made by Alexander Moreland, to the effect that if his nephew, John H., would come and live with him and take care of him, he would give him the farm; also declarations of Alexander, of his brother David and of John H. himself, that the farm had been given to the latter, and the reasons for the gift. It was also shown that the new dwelling was erected and other improvements were made by John H. Moreland with the full knowledge and without any objection or protest from his father, David Moreland, who was living upon the adjoining farm. The court, Xnghram, P. J., reviewed the testimony, and charged the jury in accordance with his answers to the points presented, which were as follows: The defendants’ points: 1. That actual, continued, notorious and adverse possession of real estate for a period of twenty-one years, gives title to a parol donee. Answer: Affirmed.1 2. That if the jury believe from the evidence that John H. Moreland entered upon the land in dispute in 1856, under a parol gift from Alexander Moreland, and that he and the defendants claiming under him, have ever since continued in possession, holding and using and claiming the property as their own, then, more than twenty-one years having elapsed prior to the bringing of this action, they have a good title to said property by the statute of limitations, and the verdict must be for the defendants. Answer: Affirmed.8 3. That if the jury believe from the evidence that Alexander Moreland made a parol gift of the land in dispute to John H. Moreland about 1856, and delivered to him possession of said property, and by his acts and declarations then and subsequently treated this property as belonging to John H. More-land, and induced and encouraged John H. Moreland to expend his labor and means in caring for said land and in making valuable improvements thereon, then Alexander Moreland, and the plaintiffs claiming under him, are now estopped from setting up title in themselves, and the verdict must be for the defendants. Answer: Affirmed.8 4. That a man is not allowed to stand by and see another expend his money and labor and make valuable improvements upon land to which he claims title, without protest, except to his own detriment; and if he has knowledge of such expenditures and improvements upon his land and makes no objection thereto, and by his conduct encourages such improvements, he will be estopped and prevented from subsequently enforcing his title to said property. Answer: Affirmed.4 5. That if the jury believe from the evidence that David Moreland, after the death of Alexander Moreland, saw John H. Moreland making valuable and extensive improvements upon' this land, believing and claiming it to be his own, and made no objection thereto, but both by word and act encouraged it, then the plaintiffs in this action, claiming under David Moreland, now deceased, are estopped by his conduct from enforcing the title derived through him against the defendants holding John H. Moreland’s title, and the verdict must be for the defendants. Answer: Affirmed.5 6. That in determining the character of John H. Moreland’s possession of the property in dispute even during the lifetime of Alexander Moreland, from 1856 to 1862, the real question is not so fimch what was intended by the donor, Alexander Moreland, as what John H. Moreland’s understanding was, what he claimed and did; and if the jury find from the evidence that John H. Moreland believed the gift to be absolute, and under that idea went into possession in 1856, and held adversely to Alexander Moreland and those claiming under him for the period of twenty-one years, then the plaintiffs are not entitled to recover, and the verdict must be for the defendants. Answer: • Affirmed. As the Supreme Court has said, the real question is not so much what was intended by the donor as what the donee’s understanding was; what he claimed and did. Did he consider the gift absolute, and under that idea did he hold adversely for the period of twenty-one years ? If he did, that is a full answer, and the end of the plaintiffs’ title. In that event, the defendants’ title is.good as against any and every claimant whatever.6 Tire plaintiffs’ points: 1. That the statute of limitations did not begin to run against the plaintiffs until their right of action was complete. Answer: As an abstract proposition that point is correct and is affirmed, but it needs some qualification as applicable to the facts of this case, and we will answer it in connection with the second point, which reads as follows:7 2. That the plaintiff’s right of action was not complete until August, 1862, after the death of Alexander Moreland. Answer: In answer to the first proposition, we answer that the point is correct and is affirmed with the qualification that if the statute of limitations commenced to run in Alexander Moreland’s lifetime, that it continued to run after his death, and the plaintiffs claiming under Alexander Moreland, would be barred by tire running of the statute after 21 years, although it commenced prior to the death of Alexander More-land ; and in answer to the second point, that the plaintiffs’ right of action was not complete until August, 1862, after the death of Alexander Moreland, that point is correct and is affirmed. Their right of action was not complete until that time, but the statute of limitations having commenced to run in the lifetime of Alexander Moreland, if it did commence then, would continue notwithstanding his death in 1862, and 21 years from the time it did commence to run would bar the plaintiff’s right of action.8 3. That the beginning of the proceedings in partition was a. bar to the running of the statute of limitations, and if the defendants had not had exclusive, adverse, notorious and uninterrupted possession for 21 years, previous to that date, the plaintiffs are entitled to recover. Answer: Refused.9 4. That if the jury believe from the evidence that Alexander Moreland was in joint possession of the land in dispute together with John H. Moreland, then the statute of limitations did not begin to run until the death of Alexander Moreland. Answer: Affirmed. If Alexander Moreland had any joint possession of the land in dispute with John H. Moreland, the statute of limitations would not begin to run until after the death of Alexander Moreland. John H. Moreland’s possession must have been adverse to that of Alexander Moreland. 5. That the bringing of this action of ejectment on May 13, 1883, was a bar to the running of the statute of limitations, and plaintiffs are entitled to recover unless the defendants can show continuous, adverse, exclusive and notorious possession of said tract of land for 21 years, previous to May 15, 1883. Answer: Affirmed. ■ 6. If the jury believe from the evidence that Alexander Moreland was the owner of the tract of land in dispute and died in possession thereof, then the adverse possession of defendants against the plaintiffs would end at the death of David > Moreland, who died intestate; as the defendants would then be tenants in common with the plaintiffs, their subsequent possession would not be adverse, and the plaintiffs would be entitled to recover. Answer: Refused.10 The verdict of the jury was in favor of the defendants. A rule for a new trial being discharged and judgment entered on the verdict, the plaintiffs took this writ, assigning as errors: 1-6. The answers to the defendants’ points.110 6 7-10. The answers to the plaintiffs’ points.7 t010
121 Pa. 582Colvin v. Blymyer (1888)
Error to the court of common pleas of bedford county. No. 30 July Term 1888, Sup. Ct.; court below, No. 403 September Term 1887, C. P. On August 24,1887, a scire facias sur mortgage was issued at tbe suit of William Colvin, assignee of John H. Brice, against John F. Blymyer. The plea was payment. At the trial on February 18, 1888, the essential facts of the case were, that in September, 1879, a piece of real estate was to be sold in Bedford, and to enable him to buy it, John F. Blymyer arranged to borrow |5,000 from John H. Brice, to be secured by a mortgage upon the property when purchased. By the agreement, the money was to be loaned at the legal rate of interest, but the borrower was to pay $300 in cash to the lender as a bonus.' The property was purchased for Blymyer, and, in his absence from Bedford, as a temporary security for the loan, he sent his note, dated September 22,1879, for $5,000, drawn payable to the order of John H. Brice at three months after date and containing a warrant of attorney authorizing the entry of judgment. This note was delivered to Brice who supplied the full amount thereof that the sheriff’s deed for the property to Blymyer might be delivered. ■On December 19, 1879, Brice met Blymyer and desired payment of the $300 bonus agreed upon, in money. Blymyer could not pay, but offered his note to Brice for the amount, and it was accepted. On December 23d, Blymyer paid to Brice $100 upon this note. On December 24, 1879, judgment was confessed upon the $5,000 note of September 22d, for the full.amount thereof. On December 26th, a new bond in $5,000, and a mortgage upon the real estate purchased to secure its payment, were executed by Blymyer in favor of Brice, which bond and mortgage were delivered on January 12,1880, and on that day the mortgage was duly recorded. On January 13,1880, the judgment entered on September 24, 1879, upon the note of September 22d, was satisfied thus: “ January 13,1880, this judgment satisfied by mortgage given to me January 12,1880 : — John H. Brice.” On January 30, 1880, Blymyer paid to Brice $100, and on April 1,1880, the remaining $100, upon the note of December 19, 1879. On September 20, 1880, the mortgage and bond for $5,000 dated December 26, 1879, were assigned by Brice to William Colvin who paid the full face value thereof, and brought this suit. On October 25, 1887, after suit by the scire facias, the defendant paid $843.60, the balance admitted to be due upon the mortgage, without prejudice to the right of either party in the contest which remained, whether the defendant was entitled to have a credit for the payments made as hereinbefore stated on the note for $300, dated December 19, 1879. The court, Baku, P. J., instructed the jury as follows: We instruct you to render a verdict for the defendant and direct a motion for a new trial to be had by the plaintiff, on the ruling of which the court will file an opinion directing judgment to be entered on the verdict, or the judgment to be then entered in favor of the plaintiff, for the amount due as the court shall find, as if the directions were given you now. A verdict was rendered in favor of the defendant. The same day the plaintiff made a motion for a new trial, which motion on March 22, 1888, was overruled and judgment entered for the defendant. Thereupon the plaintiff took this writ, specifying that the court erred: 1. In instructing the jury to find for the defendant. 2. In not instructing the jury to find for the plaintiff for the balance due on the mortgage, without allowing any deduction for the claim of usury set up by defendant.
121 Pa. 586Jacobs v. Commonwealth (1888)
ERROR TO THE COURT OF OYER AND TERMINER OF LANCASTER COUNTY. No. 350 January Term 1888, Sup. Ct.; court below, No. 66 January Term 1887, O. & T. On January 19, 1887, the grand jury returned as a true bill an indictment charging James H. Jacobs with the murder of Elmer Ellsworth Quigley, on December 11, 1886. The plea was, not guilty. At the trial on October 5, 1887, it was shown that on the night of December 11,1886, near ten o’clock, Elmer E. Quigley, a young man of 24 years of age, was going upon an errand along a thoroughfare in Lancaster, and when opposite the dwelling of the defendant his attention was attracted by the screams of children in the defendant’s house, and he stopped on the track of a railroad there. Just then, the defendant came out of the house, into the yard, with a dish in his hand. Quigley said something to the defendant about abusing his children, when the latter became angry and said, “Now, I want you to get out of this.” A few words were passed, when the defendant said, “Wait, I’ll settle you,” and ran back into his house, out again into the yard, through the gate, and upon the railroad track, following Quigley up to. some obstruction, when he stabbed him in the abdomen with a butcher knife. Quigley had an overcoat upon his right arm the entire time, and dropped it when he fell, a short distance from the place where he received the wound. The night was not dark, and the occurrence was witnessed by several passers-by and residents of the vicinity. Quigley made an ante-mortem statement, and died the next day about 10 o’clock. After the defendant stabbed Quigley, he ran into the house, put the knife in the table-drawer, and for a time concealed himself from arrest. On the part of the defendant, Dr. Joseph Furness was called, and testified that he was a practicing physician o£ sixteen years experience and had been well acquainted with the defendant for about two years: Q. State, if you please, what is the quality and characteristics of the mind of the defendant with regard to its excitability ? Objected to by the commonwealth. By the court: Offer overruled: no plea of insanity has been made, but the plea positively disclaimed by defendant’s counsel.2 Q. Were you able to judge, from your intercourse with him, what his temperament, disposition and the condition of his mind were ? Objected to by the commonwealth. By the court: Objection sustained.1 Q. Please state whether or not, in your judgment, there were such controlling influences in the mind of James H. Jacobs, the defendant, that it was not conscious of its own purposes, and on account of those influences, incapable of deliberating or premeditating, and if so, what were those controlling influences ? Objected to by the commonwealth. By the court: Objection sustained.3 The court, Patterson, J., charged the jury by a review of the facts, full instructions as to the law of homicide and the degrees of the crime of murder under the statute, and proceeded : The argument and declarations of counsel for the prisoner make the plea of justification for him; justify the deed on the ground of self-defence. That is a good defence if the facts, the circumstances proven, sustain it. The plea of insanity is not made, and it is so expressly stated by the counsel. The task is therefore imposed on us, to present to you the law of self-defence, or justification as stated. To excuse homicide by a plea of self-defence, it must appear that the slayer had no other possible, or at least probable means of escaping, and that his act was one of necessity. If the'slayer use a deadly weapon, and under such circumstances as he must be aware that death will be likely to ensue, the necessity to excuse the homicide, to excuse the killing, must be great and must arise from imminent peril to life, or of great bodily injury. The law of self-defence is a law of necessity, and that necessity must be real, or bear all the semblance of reality, and appear to admit of no other alternative, before taking life will be justifiable or excusable. The plea of self-'defence must be made out to the satisfaction of the jury; the prisoner must show an actual necessity for taking life, or a seeming one so reasonably apparent and convincing as to lead him to believe he could defend himself in no other way. If a party assailed, after having retreated, so as to be free from personal aggression, voluntarily returns and slays the aggressor, the justification of self-defence will no longer avail him. And we will add, that no man can justify taking the life of another, where he deliberately retires from the scene of merely loud words, accompanied with threats to do harm, arms himself with a deadly weapon, and returns to the scene of the former strife, for the purpose of inciting the rage of another to combat. Killing under such circumstances is either murder in the first or murder in the second degree. The law fixes no particular period of time to cool, as cooling time. It may be very short, although the provocation may be great, and each particular case is left to the jury under the particular facts and circumstances shown by the evidence. For, however great the provocation or insult which induces the quarrel, if there be sufficient time for the passion to subside and reason to interpose, the killing will then not be voluntary manslaughter, but murder in one or other of the degrees, in the first or in the second jlegree. To reduce, therefore, an intentional blow, stabbing or wounding, resulting in death, to manslaughter, there must be sufficient cause for provocation, and a state of rage or passion placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed, without time to cool. But as we have already stated, it is not every cause of provocation that is regarded as sufficient excuse for passion. Insulting or scandalous words are not sufficient cause; nor actual indignities to the person when of a slight or trivial character. It is the general rule of law, that all homicide, all killing of a human creature, is presumed to be malicious; that it is murder of one or the other degree, until the contrary appears in the evidence; and hence the burden of reducing the crime from murder to manslaughter, when it is shown that the prisoner committed the deed, lies on him, on the prisoner; he must show to the jury all the circumstances of alleviation or excuse, upon which he relied to reduce his offence from murder to a milder kind of homicide, unless it should happen that the facts and circumstances proven by the commonwealth establish it...... On October 10, 1887, the jury returned a verdict that the defendant was guilty of murder in first degree. A motion for a new trial was made, entertained, reasons filed, and on January 28, 1888, the defendant being present in open court, the rule granted was discharged, and on motion judgment of execution passed. The defendant then took this writ, assigning as error : 1-8. The refusal of the defendant’s offers.110 3
121 Pa. 593Scheid v. Rapp (1888)
No. 87 July Term 1887, Sup. Ct.; court below, No. 72 September Term 1885, C. P. On September 8, 1885, there was issued a scire facias sur mechanics’ lien, filed byDionis Rapp against Valentine Scheid.
121 Pa. 596In re East Grant Street (1888)
CERTIORARI TO TETE COURT OF QUARTER SESSIONS OF LANCASTER COUNTY. No. 15 January Term 1888, Sup. Ct.; court below, No. 85 January Term 1886, Q. S. On January 6, 1886, citizens of Lancaster city, said to be a city of the fifth class, under the act of May 24,1887, P. L. 204, represented to the city councils that they were about to present their petition to the Court of Quarter Sessions for the opening of a street or alley, as hereafter to be described, and praying the councils pass a resolution requesting the said court to grant the prayer of the petitioners. Thereupon, the said councils passed a resolution in accordance with said petition, which was duly certified to the said Court of Quarter Sessions. On January 15, 1886, the petition of citizens was presented to the Court of Quarter Sessions, setting forth that they labored under great inconvenience for want of a street or alley, beginning at or near the junction of North Christian street and East Grant street, and to extend from thence westward to North Queen street, in said city, the petition being accompanied with the foregoing resolution of the city councils; thereupon, on March 8, 1886, the court appointed three viewers for the purpose prayed for. The order was issued to the viewers, returnable to April Term thereafter. At April Term 1886, the viewers made a report in favor of laying out said street, fully describing the same by courses and distances and by reference to a plot or draft thereof attached, estimating the damages to be sustained by Samuel Demuth, for land taken, at f 14,210.66, to be paid by the county of Lancaster, and damages to be sustained by said Demuth, for certain buildings removed or injured, at $4,821, to be paid by Lancaster city. To this report, on August 17, 1886, the commissioners of the county of Lancaster filed the following exceptions: 1. The viewers erred in assessing' damages; they were not authorized by law to assess damages.1 2. The viewers erred in assessing any damages against the county of Lancaster; there was no legal'authority for such action on their part.8 3. The county of Lancaster is not liable for any damages for the opening of said street or alley.3 4. There was no legal authority for the appointment of said viewers, and their action and rejjort were therefore void.4 On the same day a petition was filed for the appointment of reviewers. On October 28, 1886, the foregoing exceptions were dismissed, and reviewers appointed. On November 12, 1886, a writ of certiorari from the Supreme Court, at the instance of the county commissioners, was filed. On May 19,1887, the writ of certiorari was quashed by the Supreme Court, on the ground that as reviewers had been appointed and had not made report when the writ was purchased, there was no final decree. On June 11, 1887, the record having been remitted, the ex-ceptants to the report of the viewers, and the petitioners for the review, presented a petition reciting the proceedings on the writ of certiorari, and that the November, January and April terms of the court had intervened, at neither of which terms had the order to the reviewers been continued, and moved the court to make an order entering said continuances of record nunc pro tunc, with the same effect as if made at said terms. A rule to show cause was granted. On the same day, on motion of the petitioners for the view, a rule was granted to show cause why an absolute decree of confirmation should not be entered on the report of the viewers filed at April Term 1886. On August 13,-1887, the court, Patterson, J., discharged the rule to show cause why the continuances of the order to the reviewers should not be entered nunc pro tunc.5 The same day, the rule to show cause why the report of the viewers should not be confirmed was made absolute, and said report was thereupon finally confirmed.7 The exceptants then took this writ, and assigned as error : 1-4. The dismissal of the exceptions.110 4 5. The order discharging the rule to show cause why the continuances of the order to the reviewers should not be entered of record nunc pro tunc.5 7. The order making absolute the rule to show cause why the report of the viewers should not be confirmed absolutely, and confirming finally said report.7
121 Pa. 605Masterson v. Masterson (1888)
ERROR TO THE COURT OF COMMON FLEAS OF LANCASTER COUNTY. No. 35 January Term 1888, Sup. Ct.; court below, No. 31 February Term 1886, C. P. On January 22, 1886, an appeal was filed by the defendant from the judgment of a justice of the peace, in favor of Tilomas Masterson against John S. Masterson, for §117. The cause was put at issue under the pleas, non assumpsit, payment, payment with leave, etc. At the trial on September 2, 1887, the plaintiff testified, in substance, that in October 1885, he had met his brother Thomas Masterson, the defendant, at the Grape Hotel in Lancaster, and was authorized by him to procure for him a purchaser for his tobacco, and if the plaintiff procured a purchaser, Ms brother was to pay Mm a commission for his services; that be was not a commission merchant or broker; that subsequently he introduced one Michael Kauffman to the defendant, who afterwards purchased the tobacco, of which there were 117 eases. James B. Fry, called for plaintiff: Q. Where a person is employed by a seller to secure him a purchaser for leaf tobacco, packed in cases, and he introduces a purchaser to the seller, and a sale is effected, what is the usual price or commission, per case, paid by the seller to the broker or party who secured the purchaser, in the absence of an express contract as to what shall be paid for the services ? Objected to by the defendant. By the court: Allowed.6 The witness testified that the usual and customary commission in such sales was $1 per case. Michael Kauffman, called for plaintiff, testified that he had purchased the tobacco from the defendant on November 3, 1885, after having been introduced to the latter by the plaintiff on October 31, 1885. His testimony appears more fully in the Opinion. On cross-examination, he was asked: . Q. Did not you take Jacob Mayer, of this city, to John Masterson, the defendant, to buy this tobacco, and didn’t Mayer do the negotiating with Masterson for the purchase of this tobacco, and didn’t Mayer buy it himself from Masterson in your presence, and did you not then go to Mr. Masterson and say, “ Now I effected this sale and I want my commissions,” and didn’t you say the custom was 50 cents per case, and didn’t John Masterson pay you 50 cents per case ? Objected to by plaintiff. By the court: Disallowed as a whole.1 Q. Was not this tobacco sold to Jabob Mayer at this time by Mr. Masterson, in your presence, and did .not Mr. Master-son pay you the commissions you asked for the sale of this tobacco ? Objected to by the plaintiff. By the court: As a whole, disallowed.8 Q. Did you or did you not ask Jacob Mayer, the purchaser of this tobacco, $1 per case, for bringing him up and showing him the tobacco? Objected to by plaintiff. By the court: Disallowed.3 In his case in chief, the defendant denied that he had authorized his brother to procure him a purchaser for his tobacco, or promised to pay him a commission for so doing, and testified that he had sold the tobacco to Jacob Mayer. His testimony sufficiently appears in the Opinion. He was asked by his counsel: Q. Did you or did you not pay to Mr. Kauffman 50 cents per case as commission for bringing Mr. Mayer, the purchaser of this tobacco, to you ? Objected to by plaintiff. By the court: Disallowed.4 Jacob Mayer, called for defendant, testified that he bought the tobacco from the defendant, with the help of Michael Kauffman, who took him to the defendant; that the contract was made with the witness, who paid the defendant for the tobacco. On cross-examination he was asked: Q. Did you not see John S. Masterson pay to Mr. Kauffman commissions as the broker, in bringing you and Masterson together in the sale of this tobacco? Objected to by plaintiff. By the court: Disallowed.5 The defendant testified to indebtedness of the plaintiff to an amount exceeding the plaintiff’s claim, which testimony was rebutted by the plaintiff. The court, Livingston, P. J., after reviewing the testimony, charged the jury as follows : [If you find from the evidence that defendant did agree with plaintiff that if he would bring him a buyer he would pay him commissions, and that plaintiff did bring him a buyer, Mr. Kauffman, and that Mr. Kauffman bought the tobacco, and not Mr. Mayer, then and in such case the plaintiff would be entitled to your verdict for the commissions, $ 1 on each case, unless you find also from the evidence that plaintiff was at that time indebted to the defendant in a larger amount than the amount of such commissions. If you find he was, your verdict will be for defendant.] 7 If you find he was indebted to defendant in a less amount than the amount of commissions, you will deduct such indebtedness from the commissions, and render your verdict for the plaintiff for the balance, with interest. [But if you find that defendant did not agree with plaintiff, or promise to pay him commissions; that plaintiff did not ask him to do so; that he did not bring defendant a buyer, but simply a man who said he thought he could find him a buyer; that Kauffman, who was introduced by plaintiff to defendant, did not buy the tobacco at all, but that Jacob Mayer bought it from defendant himself and for himself, your verdict should be for defendant.] 8 The jury returned a verdict in favor of the plaintiff for 1129.87. Judgment having been entered, the defendant took this writ, assigning as error: 1-5. The refusal of defendant’s offers.110 s 6. The admission'of plaintiff’s offer.6 7, 8. The parts of the charge embraced in [ ] 7 8
121 Pa. 611Gregory's Exrs. v. Commonwealth (1888)
EBBOB TO THE COURT OF COMMON PLEAS OF FULTON COUNTY.* No. 20 May Term 1888, Sup. Ct.; court below, No. 67 June Term 1887, C. P. On April 22, 1887, a scire facias sur recognizance in tbe Orphans’ Court, was issued in the name of the Commonwealth of Pennsylvania, for use, against Henry Gregory and D. C. Spitzer, executors of James Gregory, deceased, to enforce the payment of the share of John Gregory in the real estate of Joseph Gregory, deceased. The defendants pleaded payment. At the trial on October 10, 1887, it was made to appear that Joseph Gregory, a resident of Fulton county, died intestate in 1856, leaving to survive him three brothers, one of whom was John Gregory, one sister, and the children of a deceased brother and of two deceased sisters. Two of the brothers, James and Moses Gregory, became the administrators of his estate, and on August 4, 1857, settled an account which was confirmed and showed a balance due accountants of $1,380.98. A second and final account, as corrected and confirmed on October 29,1859, showed a balance due accountants of $350.12. On January 13, 1866, proceedings in the Orphans’ Court for the partition of the real estate of Joseph Gregory terminated in a decree awarding the land to James Gregory, who entered into the recognizance upon which the suit was brought. At this time and until his death in 1878, John Gregory, a beneficiary in the recognizance, lived in the state of Indiana. The plaintiff to rebut the presumption of payment arising from lapse of time, called several witnesses who testified to conversations with James Gregory in his lifetime and within 20 years before the suit was brought. These conversations sufficiently appear in the Opinion of the Court. The defendant put in evidence the administration accounts referred to above, and the case closed upon the evidence. The court, McClean, P. J., charged the jury: You have seen the origin of the cause of action in this case. The estate of Joseph Gregory, deceased, was settled by his brother James, who is also now deceased, and Moses Gregory, administrators. The personal estate was settled in the course of this administration. James afterwards came into the Orphans’ Court and asked to institute proceedings in partition of the real estate of his brother Joseph, and after the valuation made in that ease by the inquest,' he came into court, and on January 18, 1866, entered into a recognizance for the payment, among other shares, of a share due to his brother John, the property having been taken by James at an advance somewhat over the valuation, and decreed to him, the day before, January 12, 1866. This put the title to this real estate in James Gregory at that date. The Orphans’ Court act of 1832 [§ 37, act March 29, 1832, P. L. 201] provides that in every such case the party accepting the real estate, or some one on his behalf shall pay “ to the other parties interested, their proportionable parts of the value of such estate, according to the just appraisement thereof, made in manner aforesaid, or giving good security by recognizance or otherwise, to the satisfaction of the court for the payment thereof, with legal interest, in some reasonable time, not exceeding 12 months, as the court may direct.” Now it appears, gentlemen, that in this case the share was payable presently, on January 13, 1866. James Gregory acknowledged himself bound to the commonwealth of Pennsylvania in a certain sum, on condition that he would pay his brother John Gregory, the sum of $337. John Gregory could have immediately demanded that amount. The person “for whose use payment or satisfaction shall be so made, in any of the cases aforesaid,” for the part or share of such real estate, shall be forever barred of all right or title to the same. The defendants, the executors of the conusor in this case, say that it is paid. They offer you no evidence of direct payment. They say it is presumed to be paid by the lapse of time which has run before any demand was made upon them; and you will see, gentlemen, that that has been twenty-one years, three months and nine days. On January 13,1866, this money was acknowledged to be due to John Gregory. No suit was brought, no demand made by any action in court upon James Gregory or the executors of his will, until April 22d last', and that is the case we are now trying; and it is after an interval of time, as I have said, of twenty-one years, and three months and nine days. [This Orphans’ Court act [§ 50, supra] further provides that “where a recognizance hath heretofore been, or shall hereafter be taken in any Orphans’ Court, on the acceptance of the real estate of a decedent at the valuation or appraisement thereof, as hereinbefore provided for, and the same, or any part thereof, shall be satisfied or paid to the person or persons interested therein, his, her, or their agent or attorneys, any such person so having received satisfaction of the amount coming to him, shall enter an acknowledgment thereof upon the record of such court, which shall be satisfaction and discharge of the said recognizance, to the amount acknowledged to be paid.” Here was a duty resting upon John Gregory, if the whole or any part of this money had been paid to him in his lifetime. He could either come in to the Orphans’ Court, or the office of the clerk of the Orphans’ Court, and enter satisfaction if he had received the whole amount, or give credit for whatever amount might have been paid; but it has not been done. So it rested upon him, and the law enjoined upon him, if the money was paid, to enter satisfaction of record to the amount acknowledged to be paid, and then “the recognizance shall cease to be a lien on the real estate of the conusor to a greater amount than the principal and interest actually remaining due.” Again [§ 51, supra]. “Tf any person who shall have received satisfaction as aforesaid, for his claim or lien, secured by such recognizance, shall neglect or refuse to enter upon the record his acknowledgment thereof, upon the written request of the owner of the premises, bound by such recognizance or of any part thereof, or of his legal representative or other persons interested therein, on tender of all the costs for entering such acknowledgment within sixty days after such request and tender as aforesaid, such person, for every such default, shall forfeit and pay to the party aggrieved the sum of fifty dollars, absolutely, and any further sum, not exceeding the amount by such person received, as shall be assessed by a jury on a trial at law.” If this amount had been paid to John Gregory, James could have compelled him to come and enter satisfaction, or to execute a power of attorney to some one else to do it. “ Or the Orphans’ Court, on due proof to them made that the entire amount due to any heir, legatee or distributee, shall have been fully paid and discharged, may make an order for the relief of such person from any recognizance or other recorded lien; which order, being certified to the proper court where such lien may appear, shall be entered on their records, and shall enure and be received as a full satisfaction and discharge of the same.” This, gentlemen, is the provision of the original Orphans’ Court act of 1832. Later than that, in 1850 [act of April 26, 1850, P. L. 581], we have extended and applicable to recognizances of the Orphans’ Court the provisions of the act of 1823, relating to mortgages. That is made applicable to “ recognizances in the Orphans’ Court of any county of this common ■ wealth which are or may be liens upon any real estate within the same, in as full and particular a manner as if the several provisions of said act were here repeated at length.” And “the proceedings for the discharge and satisfaction of the lien of any such legacy or legacies, or any such recognizance, shall be the same as those prescribed in the act referred to in the preceding section, in reference to the satisfaction of mortgages, except that with regard to the aforesaid recognizances, the proceedings shall be had in the Orphans’ Court, upon whose records the said recognizances are found.” If we turn to the act of 1823 [act of March 31, 1823, 8 Sm. L. 131], which is entitled an act relating to mortgages, and made applicable to recognizances in the Orphans’ Court, we find this: “ In all cases where the legal holder or holders of a mortgage have died, or shall die, without entering satisfaction upon the record of the same, and also in all cases where the legal holder or holders of a mortgage have removed, or shall remove, or be out of the state, and payment being made of all the money or amount due, or to become due thereon, and shall so continue for two 'years, in such case the mortgagor, (in this case the conusor, James Gregory,) — “or mortgagors, his, her or their legal representatives, or the owner or owners of the mortgaged premises, or any or either of them, may petition the Court of Common Pleas of the county where the mortgaged premises are situate, setting forth the premises; whereupon the said court shall direct the sheriff of the said county to serve a notice, stating the facts set forth in the petition, on the legal representative or representatives.” In this case it could have been served upon the administrator of John Gregory, after his death in 1878. If he could not be found in this county the sheriff could give public notice as aforesaid. Now, I referred you, gentlemen, to the provisions of the law, showing what could have been done, what could have been required, what indeed the law did make incumbent upon John Gregory, if demand had been made on him for the satisfaction of record of the whole or part of this share ; and the remedy that James Gregory had, had any such demand been made, to have satisfaction appear where the evidence of the debt appears upon the record; but it has not been done; no entry has been made or authorized so far as any evidence goes to show.] 8 Gentlemen, you will keep in mind the legal principle that the lapse of twenty years raises a presumption of payment in such a case as this. It is the policy of the law to prevent stale claims being made and prosecuted. Where a creditor or party entitled lies by for a period of twenty years, and no demand is made upon any one, the law raises the presumption of payment. But this presumption yields before any circumstances and facts on which the mind can rest with satisfaction by which it is rebutted or repelled. It has not the power or effect of a positive statutory enactment of limitation or oblivion, which extinguishes the original demand, and requires a new promise to pay, or its equivalent. Observe then, gentlemen, that presumption of payment from lapse of time may be rebutted by any facts which go to destroy that presumption. This presumption is extinguished by an intermediate acknowledgment of the obligor that the bond is still due and unpaid, or by a part payment of the principal or interest within 20 years, or by the commencement of legal proceedings. We have no evidence in this case of a part payment of principal or interest within 20 years; we have no evidence of the commencement of any legal proceedings until after the lapse of twenty-one years, three months and nine days. But the plaintiffs answer, or attempt to answer this legal presumption from lapse of time, by asserting that there was an intermediate acknowledgment of the obligor, James Gregory, that the bond was still due — that the recognizance was still due and unpaid. Now, they have furnished you evidence...... Gentlemen, we think from the argument of the counsel and with the help I may have given you, and the attention you have paid to the testimony from the witness stand, you will be able to understand the issue to be determined by you between these parties. If you find that the presumption of payment from the lapse of time, arising from the running of 20 years or more, can be used by the defendants as a defence under all the evidence, and if you find that the evidence offered on the other side, on the part of the plaintiffs does not repel or rebut this presumption, your verdict will be for the defendants. If you are satisfied, looking at the law as we have given it to you, from the evidence, that this long lapse of time should give the estate of James Gregory the benefit of the legal presumption, you will find for the estate. But. gentlemen, as I said, this presumption yields before any circumstances and facts on which the mind can rest with satisfaction by which it is repelled or rebutted. So take the evidence of these five witnesses, Judge Gordon, William Gordon, Miss Catharine Gregory, Mrs. Peck and Moses Peck. Weigh their evidence and determine for yourselves whether you can rest your mind with satisfaction upon their statements of what was said by Mr. James Gregory in his lifetime, and whether that evidence rebuts or repels this presumption of payment. If having looked at it altogether, looking at the law relative to the parties to this recognizance and the declarations of James Gregory, you are satisfied that the debt has not been paid, and that this evidence is a sufficient answer to the legal presumption of payment, you will find for the plaintiffs. The verdict of the jury was in favor of the commonwealth, for use of the personal representatives of John Gregory deceased, for $775.22. Judgment having been entered, the defendants took this writ, specifying that the court erred : 1. In submitting to the jury an issue not sustained by sufficient evidence; on the contrary, the court should have ruled as matter of law that a recovery was prevented by the presumption of payment and should have directed a verdict in favor of defendants. 2. In that part of the charge embraced in [ ] 2
121 Pa. 628Porter v. Nelson's Exrs. (1888)
ERROR, TO THE COURT OE COMMON PLEAS OE YORK COUNTY. No. 7 July Term 1888, Sup. Ct.; court below, No. 28 April Term 1886, C. P. On February 1, 1886, a scire facias was issued at the suit of William Porter, guardian of Robert McCall Nelson, for tbe use of Robert McCall Nelson, against Frances A. Nelson, executrix of Samuel P. Nelson, deceased, with notice to Johanna Nelson, Emerson Nelson, Maria Theresa Floyd and Frances A. Nelson, terre tenants, the object being to revive a certain judgment hereafter referred to, and to charge the lands of the decedent devised to his widow and heirs, named in the writ, with the payment of it. The pleas were, payment, payment with leave, etc. At the trial on November 30, 1887, the essential facts appearing were as follows: On March 29, 1860, William Porter, guardian of Robert McCall Nelson, entered judgment upon a bond with warrant of attorney, of date June 25, 1855, against Samuel P. Nelson, who was the father of Robert McCall Nelson. The bond was payable, $377.25, on April 1, 1856, and the balance on April 1, 1857, with interest. At this time Robert McCall Nelson was living with his father and continued to reside with him until April 1, 1880, when, having been married, he became a tenant on his father’s farm, and remained such till the death of his father on February 9, 1884. The judgment had been assigned to Robert McCall Nelson, on March 15, 1865, when he had become of age, and at the time of the issuance of the writ was unsatisfied of record. To rebut the presumption of payment from the lapse of time, the use plaintiff called William Nelson, his brother, and Robert Livingston, his father-in-law. These witnesses testified, the former to a conversation with Samuel P. Nelson in 1874, and the latter to a conversation with him in 1880, in which conversations oral admissions were made of the existence of the indebtedness ; the testimony of these witnesses sufficiently appears in the charge of the court below. As evidence on the part of the defendants, tending to show payment of the bond, they called Maria Theresa Floyd, one of the defendants, a daughter of Samuel P. Nelson, and offered to prove by her that a short time after her father’s death, Robert, the use plaintiff, called at the house where her father had died to look up the plot of a survey, and in the search the bond upon which the judgment in suit had been entered was found, tied up with other papers of her father in a newspaper, and the plaintiff took it away with him. The plaintiff objected, that the witness was an heir and devisee of Samuel P. Nelson, deceased, and her testimony would have the effect of relieving the estate of the payment of a debt which existed before the decedent’s death, and of relieving herself of the payment of money as one of the devisees. By the court: I will admit the evidence.3 The defendants then called Miss Frances A. Nelson, and offered to prove that she was present with the preceding witness, when the bond was found among her father’s papers and taken away by the use plaintiff. The offer was objected to for the same reason. The objection was overruled and offer admitted.4 The testimony of both witnesses sufficiently appears in the charge of the court below. The court, Latimer, J., charged the jury and answered the points presented as follows : Over thirty years from the date of the bond, over twenty-five years.from the entry of the judgment, and over twenty years from the time plaintiff became of age, elapsed before this suit was brought. The obligor, Samuel P. Nelson, died in 1884, about twenty-nine years after the note was given, and nineteen years after the plaintiff became of age. The law is that after twenty years have elapsed from the time of the maturity of a debt, the debt is presumed to be paid. In the case of Kline v. v. Kline, 20 Pa. 503, the Supreme Court says that a presumption arises “from a lapse of more than twenty years without suit or demand after the money becomes payable. Though not possessing the force of a statutory limitation, which extinguishes the debt and requires a new promise or its equivalent to revive it, the presumption of payment from lapse of time is very strong and is favored in law as tending to the repose of society and the discouragement of stale claims.” In Bentley’s Appeal, 99 Pa. 500, the Supreme Court says “ a debt which has been due and unclaimed, and without recognition, for twenty years, in the absence of explanatory evidence, is presumed to have been paid. This presumption prima facie obliterates the debt, and the onus of proof is upon the creditor, not to establish a new contract as is the case when a debt is barred by the statute of limitations, but to show that payment of the debt has not been made.” Till that presumption is rebutted the defendants are not bound to open their mouths in defence. They can safely rest on the presumption. The presumption may be rebutted by evidence of facts, statements, and declarations of the debtor not consistent with such payment. To rebut the presumption of payment which had attached in this case, evidence was introduced by the plaintiff to which I will briefly call your attention. William Nelson, a son of Samuel P. Nelson, was called upon to testify to alleged declarations of Samuel P. Nelson, the debtor, not consistent with the idea that the bond had been paid. The witness said that, being in the field in 1874 with his father, a conversation arose about his father’s indebtedness to the witness and to others, including the plaintiff; that the witness mentioned to his father his indebtedness to the plaintiff, Robert McCall Nelson, and then used the expression that his father sanctioned it, and on being pressed both on the second examination and the cross-examination, he said that his father didn’t utter a word in response to his statement, but that he nodded his head; that he “ sanctioned it ” he repeated. Nothing seems to have been said, at least nothing is testified to have been said, on that occasion about the amount or character of the indebtedness, and it is proper to say that the testimony of the witness is very vague. Robert Livingston, the father-in-law of the plaintiff, was called, and testified, that at the time his daughter, who is married to the plaintiff, moved to the Nelson farm, where Mr. Nelson was then living, he had a conversation with Samuel P. Nelson, the defendant, and that Samuel P. Nelson had detailed to him an alleged contract between him and the plaintiff, in regard to the farm and stock and implements he had given him, and went on to say that he owed his son Robert $500 besides this stock; he owed his son Robert $500 for money that his aunt had willed to the plaintiff, and that they would fix it up at some subsequent period. Now these two witnesses were the only ones who testified to any admissions by the defendant that this note was not paid. No evidence is given that any demand was made by the plaintiff himself, or any one in his behalf, for payment of this note. Admissions of indebtedness made to any one but the creditor, are not entitled to the same weight in rebutting the presumption of payment as those made to the creditor. As is said by the Supreme Court in Bentley’s Appeal: “ When a person in conversation with a stranger respecting the claim of another, says he will not pay it, there is not the same reason for inferring recognition, that exists when the creditor requests and the debtor refuses payment. In the latter case not to deny is to admit. Besides, the debt is claimed. But it does not concern the stranger whether the claim is existing or has been paid; he has no right to ask payment.” When the creditor demands payment, or presents his claim and under such circumstances the debtor admits his indebtedness, the admission is of far more weight than such as were referred to here, to parties other than the debtor. [If the case of the plaintiff stood alone on the conversations had with the witnesses William Nelson and Robert Livingston, I would deem them insufficient to rebut the presumption of payment.] 2 But in addition to that, it is shown that the plaintiff, the son of the defendant, lived in his family until his marriage, and then lived as a tenant on his farm up to the time of his death. These are circumstances offered in this case, as tending to explain the delay of the plaintiff and his failure to demand the money of his father in his lifetime, proper to be considered in determining the question whether this bond has been paid. I cannot say that the evidence introduced by the plaintiff in chief is insufficient to rebut the presumption of' payment. The testimony, its weight, the credibility of the witnesses, the correctness of their testimony are all questions for you. The defendants to show that this bond has been paid, called Miss Frances A. Nelson and Mrs. Floyd, two of the defendants. They testified first, that on the day the parties came to town to prove the will of Samuel P. Nelson, Frances A. Nelson, the executrix, asked her brother Robert Nelson, who was the. executor of the will, in the kitchen, how much her father owed him, and that he replied, “ Nothing except $100, may be not quite so much, I have it all down in a book.” And, that on a subsequent occasion in General Heiges’ office, in answer to a statement made' by Miss Frances Nelson in regard to the amount of indebtedness of her father’s estate, made in reply to a remark of her counsel, the plaintiff in this case had said that his father didn’t “ owe him much, not more than $100, and may be not that much.” These statements are denied by the plaintiff, and they are denied by his brother and witness, William Nelson. The jury heard the testimony on both sides, and it is for you to determine to which of the witnesses on this branch of the case you will give credit, whether you will believe the testimony of the executrix and her sister Mrs. Floyd, to the statement that they say was made by the plaintiff, or whether you will believe the testimony of the plaintiff and his witnesses that no such statement was made. First you will readily see that if the plaintiff did on that occasion make the statement that has been attributed to him, that he is condemned out of his own mouth, his own statement of the amount of the indebtedness excluding the amount of the bond. But whether he testified truthfully, and whether he is to be believed on that branch of the case is exclusively for you to determine. In addition to that, Mrs. Floyd and Miss Nelson testified that about a month after their father’s death, the plaintiff came to their house and asked for the plot of a piece of land which had been owned by his father, and was among his father’s papers; that a drawer containing a bundle of papers wrapped up in a newspaper, was brought down into the kitchen, and opened, and that Mrs. Floyd and the plaintiff examined these papers, and searched them for the plot or survey; that she found this bond on which this judgment was entered, which is now attempted to be revived by a scire facias; that she read enough of it to ascertain what it was, and then made the remarks which have been detailed to you and referred to in the addresses of the counsel, in regard to its having been the bond which her father had to give for Robert’s money; and that the bond was taken away by Robert, he saying nothing at all on the subject, whether it was paid or not. [Now you will understand that where an obligation for the payment of money is found among the papers, or in possession of the obligor, he is presumed to have obtained it by payment.] 1 But you will bear in mind in considering that question that, the lips of the plaintiff are sealed as to anything that took place between him and his father in his lifetime ; that he is incompetent to testify; he is rendered, incompetent by law to testify to any such facts. Now the case largely depends upon the credibility to be attached to the testimony of the witnesses, and that is to be determined from their manner of testifying, and the probability or the improbability, of what they have testified to; and those questions of the probability, of their credibility, and of the weight to be attached to the oral testimony of the witnesses, are questions entirely for the jury. ******** The plaintiff and defendants respectively have presented ■ certain points on which they have asked me to charge you. I will read the points to you, and then I will read my answers to the points. The court is requested to charge for the plaintiff: 1. The facts that the plaintiff was a minor when the bond was taken by his guardian and the judgment entered, and remained a minor about five years thereafter; that at the time the bond was assigned to him by his guardian soon after he arrived at the age of twenty-one years; the relationship of the plaintiff and Samuel P. Nelson; and that until his marriage in 1879 he lived with and worked for his father Samuel P. Nelson, the defendant in the judgment, and afterwards was his tenant until said Samuel P. Nelson’s death, are circumstances in connection with the other evidence in the case for the jury to consider, to account for the delay of the plaintiff in enforcing the collection of the judgment in evidence, and to rebut the presumption of payment. Answer: I answer that the plaintiff’s first point is correct. 2. If the jury believe from the evidence that Samuel P. Nelson, within twenty years of his death in 1884, acknowledged that the debt in controversy was still unpaid, then the presumption of payment has been rebutted, and the plaintiff is entitled to recover the principal of the original judgment and interest on this amount. Answer: I answer that plaintiff’s second point is not correct. 3. If the jury believe from all the evidence in the case that the judgment in evidence was unpaid at the time of Samuel P. Nelson’s death, the plaintiff is entitled to a verdict for the principal and interest on said judgment from April 1,1855, until December 1, 1887. Answer: I answer that the plaintiff’s third point is correct. The court is requested to charge for the defendants: 1. That a debt that is due and unclaimed for twenty years, in the absence of explanatory evidence is presumed to have been paid. What the debtor said to a third person about the debt has not the same weight, and that the same weight should not be given to it by the jury as if said to the creditor; that the only declarations attempted to be proven in this case are those alleged to have been made to third persons in the absence of the creditor, hence they should have less weight given to them than if made to the creditor. Answer: The defendants’ first point is correct. 2. The alleged facts proven by plaintiff in this case do not sufficiently rebut the presumption of payment arising from lapse of time, and hence the court is requested to instruct the jury that the plaintiff is not entitled to recover. Answer: This point I cannot affirm. The jury returned a verdict for the defendants. Judgment being entered, the plaintiff took this writ, and assigned for error: 1, 2. The parts of the charge embraced in [ ] 1 2 3, 4. The admission of plaintiff’s offers.3 4
121 Pa. 641Appeal of Breneman (1888)
FROM THE DECREE OR THE ORPHANS’ COURT OR LANCASTER; COUNTY. No. 162 January Term 1888, Sup. Ct.; court below, No. O. C. On March 21,1887, the account of A. N. Breneman, Jr., executor of the last will and testament of A. N. Breneman, Sr., deceased, was confirmed, showing a balance for distribution of $10,000, and on April 9th, Mr. William Leaman was appointed auditor to report a distribution of this balance among those legally entitled thereto. By the report of the auditor, filed September 3, 1887, the following facts appeared: On January 17,1848, E. C. Reigart was appointed guardian of the persons and estates of five minor children of Abraham Breneman, deceased, and among the assets which reached his hands, as guardian, was the note of A. N. Breneman, now deceased, to said Abraham Breneman, dated April 1, 1847, for $400. The guardian held the note, and received interest upon it from the maker till April 1, 1859. On April 12, 1860, A. N. Breneman delivered to Mr. Reigart a new note for $424, in lieu of the former and interest thereon, payable to him as guardian of the minor children of Abraham Breneman, deceased, and containing a warrant of attorney, by virtue of which a judgment was entered upon the note the next day. On February 16, 1861, Mr. Reigart exhibited in the register’s office his account as guardian, in which he charged himself with $400, the amount of the original note, and interest thereon from April 1, 1849, to April 1, 1861. This account was duly confirmed, and the balance shown thereby against the guardian was afterwards paid out in full and releases taken from the distributees. A. N. Breneman became insolvent in 1859, and so continued until 1870. On September 28,1865, a scire facias was issued on the judgment entered in 1860, and on November 27th, judgment of revival was entered and the sum due liquidated at $566.75, in favor of “ E. C. Reigart, guardian of the minor children of Abraham Breneman, deceased,” against A. N. Breneman. During the month of May, 1868, certain letters passed between Mr. Reigart and A. N. Breneman, in which correspondence the latter admitted the existence. of said indebtedness at that date. The nature of this correspondence appears in the Opinion of the Court. Mr. Reigart died on December 20, 1869, and on the 27th of the same month letters testamentary upon his will were issued to H. E. Slaymaker and Benjamin Champneys, Jr., appointed therein his executors. The note was found among Mr. Reigart’s papers, but it was inventoried as of no value. A. N. Breneman died on December 31, 1883, testate, and letters testamentary were issued to A. N. Breneman, Jr. No inventory of his personal estate was filed. The indebtedness represented by the Reigart judgment remaining unpaid, the executors of E. C. Reigart claimed payment thereof out of the fund for distribution. The hearing was had in May, 1887. The accountant, with the heirs and legatees of A. N. Breneman, deceased, resisted payment of the judgment on two grounds: 1. That, more than twenty years having elapsed since the execution of the judgment note of April 12, 1860, proved and put in evidence, and also since the revival of the judgment on November 27, 1865, the indebtedness is presumed to have been paid. 2. That when E. C. Reigart charged himself in his guardian account, on February 16, 1861, with the amount of the note of April 1, 1847, and the interest thereon, he made a voluntary payment of the debt of another, and therefore no recovery could be had against the estate of A. N. Breneman, deceased. The auditor held, first, that the judgment of revival of November 27, 1865, could not be questioned before him, no attempt to do so was made, and the indebtedness at that date was thus absolutely fixed; that the contents of the letters between the parties to the judgment, in May, 1868, show that the claim was then unpaid, and the latter date being within twenty years, the presumption of payment was repelled: and, second, that the guardian had properly charged himself with the amount of the note, — at all events, when the account was confirmed, and the balance shown thereby paid out to the distributees, the payment was not voluntary, but was made under a decree of the Orphans’ Court; that, moreover, the executors of E. C. Reigart were the proper parties to demand and receive payment of the claim, notwithstanding the lapse of time: Slaymaker v. Farmers N. Bank, 103 Pa. 616. The claimants were awarded by the auditor the sum of $1,306.25, and a' distribution ordered accordingly. To the allowance of this claim, the executor and legatees of the deceased filed exceptions, which, upon argument, were dismissed by the court, Patterson, J., and the auditor’s report and distribution confirmed. The exceptants then took this appeal and assigned as error the decree confirming the report and the distribution recommended by the auditor.
121 Pa. 649Appeal of Runner (1888)
FROM THE DECREE OF THE ORPHANS’ COURT OF LANCASTER COUNTY. No 300 January Term 1888, Sup. Ct. On June 20, 1887, the account of Jesse Wood and L. O. Wright, administrators of Robert Killough, deceased, who had died on January 5, 1886, was confirmed, and Mr. Charles Denues was appointed auditor to report distribution of the balance shown. At a hearing before the auditor, in August, 1887, Margaret J. Runner, administratrix of Mary E. Killough, deceased, presented for allowance and payment two notes under seal, made by Robert Killough, to the order of Mary E. Killough, both dated December 10,1864. One of these notes was for $800, payable one year after date, with interest, with a credit of $10, October 6, 1876, indorsed; the other was for $275, payable one year after date, with interest, having credits indorsed, as follows: $5, December 2, 1867; $70, October.....; $25, March 3,1879. Objection to the allowance of the notes was made, on the ground that they were presumed to have been paid, from lapse of time. It was shown and the auditor found as facts, that Mary E. Killough, deceased, was a sister of Robert Killough whose estate was for distribution, and she had left at her death, intestate on April 5, 1884, a sister, Eleanor Tomlinson, and the brother, Robert Killough, as her next of kin; that the indorsements of credits on the notes were made by the obligee ; that the only demand made for the payment of the notes, was the one made before the auditor, and that the estate of Robert Killough had all along been solvent. Several witnesses were called by the claimants to prove conversations had with Robert Killough a short time before his death, in which, as it was claimed, he acknowledged the then existence of the indebtedness; their testimony is fully shown in the Opinion of the Court. The auditor ruled, first, that the indorsements upon the notes were not sufficient to repel the presumption of payment, in the absence of affirmative evidence that they were made when it was against the interest of the obligee to make them: Lash v. Von Neida, 109 Pa. 207; and, second, that after the lapse of twenty years, the burden of proof to repel the presumption of payment devolves upon the plaintiff, and whether the evidence introduced for the purpose is sufficient or not is a question of law: Reed v. Reed, 46 Pa. 242; Beale v. Kirk, 84 Pa. 416; and, third, that the admissions made-in the conversations of the decedent proven, were insufficient to repel the presumption of payment. The claim upon the notes was therefore disallowed. The report of the auditor was filed on December 10,1887, when the claimant filed exceptions to the rulings under which the claim was rejected. These exceptions were argued before Patterson, J., on December 22, 1887, who on January 14, 1888, filed an opinion ruling with respect to the testimony of the witnesses referred to: “ This testimony, without more, does not, in the opinion of the court, show that the notes were not paid. We think there should be something more direct and positive to overcome'the presumption of payment. It is not even shown in support of those two witnesses’ testimony that the decedent did not ‘ come up shortly and fix up those notes,’ or that he did not ‘ come up in a week or ten days for that purpose.’ We think the auditor did not err, and we dismiss all the exceptions and confirm absolutely the report of the auditor. Thereupon, the claimant took this appeal and assigned the order confirming the report as error.