author: Chief Justice Agnew

text:
    Seely versus The City of Pittsburgh.
    The frontage rule of valuation, whereby the cost of the paving of streets or other municipal improvements is assessed upon the property holders abutting upon the street, in proportion to the number of feet their property fronts thereon, while it may be a just mode of assessing the cost upon compact city lots, where the properties do not materially differ in value, cannot be applied where the street or improvement is made through rural or suburban districts, and the Act of April 2d 1870, in so far as it applies this mode of assessment to such districts is unconstitutional.
    October 6th 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 300.
    This was a scire facias suivmunicipal claim brought by the city of Pittsburgh against C. B. Seely, in which the following case was stated for the opinion of the court:—
    “ That under the provisions of an Act of Assembly, entitled £ An Act to provide for the improvement of Penn avenue and other avenues and streets in the city of Pittsburgh,’ approved April 2d 1870, and the supplement thereto, approved March 20th 1872 (copies of which are hereto annexed and made part hereof), the owners of the property abutting on Penn avenue, between St. Mary’s avenue and the eastern line of said city, on the 10th day of May 1870, elected James Littell, Paul Hugus, John P. Penny, Dr. A. J. Davis and Dr. John J. Marckant as commissioners to control and superintend the grading, curbing and paving of that part of said avenue (the said act having been previously approved by the councils of the city of Pittsburgh).
    ££ That said commissioners, as required by said Act of Assembly, met and organized, determined the kind and description of pavement to be used upon that part of said avenue to be improved, and let the contracts for the grading, paving and cui’bing of the same, as required by said act.
    ££ That during the progress of the work, for the purpose of providing for the payment of the cost and expense of said improvement, they made requisition upon the mayor of the said city of Pittsburgh, for the issue of bonds of said city from time to time — upon which requisition, bonds were' issued as required by said act, and negotiated by said commissioners, amounting in the aggregate to the sum of $356,500, and the proceeds of said bonds were paid into the treasury of said city, and paid out by the treasurer upon the requisition of said commissioners as required by said act.
    “ That as soon as said grading and paving of said avenue was completed to the satisfaction of said commissioners, they notified the city engineer of that fact, and in accordance with the requirements of said act, they, on the 18th day of September 1873, assessed the cost of said improvement equally per front foot upon the property fronting or abutting upon said improvement, and that all other requisites and conditions of said act and supplement were fully and strictly complied rvith.
    “ That said defendant, C. B. Seely, at the time said improvement was made, owned, and at the present time owns, property abutting upon said avenue, and assessed with a part of the cost of the said improvement thereof, and which is bounded and described as follows, viz.: Beginning on the north side of Penn avenue, at the corner of Beatty street; thence along said avenue 108.48 feet to the corner of H. H. Negley’s land, and thence extending back, preserving the same width 120 feet. That a lien was filed as required by said act, against said property of defendant amounting to the sum of $1073.84. That the line of said improvement, in part, runs through what is called the rural or suburban part of the city, and defendant’s premises are situated in such rural district.
    “ If, under the foregoing statement of facts, your honors should determine that said assessment is not in derogation of. the defendant’s rights under the constitution of this Commonwealth, that then judgment shall be entered for the plaintiff for the sum of $1301.84, to be collected as directed by said act, with costs, but if on the contrary your honors should conclude that said assessment is in conflict with the provisions of said constitution, that then judgment shall be entered for the defendant for costs. Either party to have the right to take out a writ of error to the Supreme Court.”
    The Act of April 2d 1870, Pamph. L. 796, and its supplements of February 1st 1871 and March 20th 1872, provided, inter alia, as follows :—
    That the owners of property abutting on Penn avenue, between St. Mary’s avenue and the eastern line of the city of Pittsburgh, should elect five citizens, owners of property, to be known as commissioners of Penn avenue improvement, whose duty it was made to control and superintend the grading, curbing and paving of that part of said avenue above mentioned, and who were to determine the kind and description of pavement to be used, and to make and enter into contracts for furnishing materials, grading, curbing and paving of the said avenue. All contracts made by said commissioners were to be paid out of the funds to be provided for said improvement ; and for the purpose of providing for the payment of its cost and the expenses incurred therein, the commissioners were authorized from time to time, as the work progressed, to make requisition upon the mayor of the city of Pittsburgh for the issue of bonds of said city, in such sums as they deemed best; and it was made the duty of the mayor to make and execute bonds in the name of the city, to an amount not exceeding the amount of the contract price for said work; said bonds to be .known as Penn avenue bonds, and to be payable twelve years after date ; the commissioners to negotiate said bonds in such manner as they might think best, and for such prices as might be obtained for the same, not less than par. All moneys received by the city treasurer from the sale of said bonds were to be kept by him in a separate fund, and paid out on requisition of the commissioners when the improvement was completed; and it was made their duty to ascertain the entire amount of the bonds sold by them, which was to be taken as the cost of said improvement; and said cost was to be assessed equally per front foot upon the property fronting or abutting upon said improvement. The commissioners were also required to have a plot of said avenue prepared, showing the separate lots of ground and the names of the several owners, and to make a list or schedule of the names of all said owners, and the amounts assessed against each lot or piece of ground, and to file the same in the office of the prothonotary of Allegheny county; said assessment to be payable at the office of the city treasurer, in ten equal annual instalments, with interest at seven per centum upon the unpaid portion thereof. If said instalments, or any of them, were not paid at the time they became due, it was made the duty of the treasurer to certify the same to the city attorney for collection; and the same was to bear interest at seven per cent, from the time it became due and payable; said assessments, with the interest accruing thereon, to be a lien upon the property abutting upon said avenue, from the commencement of the work, and to remain a lien until fully paid; to have precedence' of all other liens, and not to be. divested by any judicial sale. If any assessment or instalment thereof remained unpaid for thirty days after the same became due, the city attorney was to file a claim for the same in the District Court of the county of Allegheny, in the same manner as mechanic’s liens are filed, and a writ of scire facias and levari facias might issue thereon, as in the case of mechanics’ liens, and the same costs be taxed, judgments be entered thereon for the full 'amount of the assessment remaining unpaid, with leave to take out execution for the instalment and interest then due, and for each subsequent instalment and interest as the same became due. All moneys received from assessments were to be appropriated, under direction of the finance committee of the councils of the city of Pittsburgh, to the payment of the interest and the redemption of the bonds which were issued for said improvement. If any interest should become due on said bonds, where there was no fund from which to pay the same, the councils of the city of Pittsburgh were authorized to make a temporary loan for the purpose of paying the same-. This act was not to take effect until the councils of the city of Pittsburgh should have approved thereof.
    On the case stated the court entered judgment for the plaintiff.
    Defendant took this writ and assigned this judgment of the court for error.

      J. W. Kirher and M. A. Woodward, for plaintiff in error.—
    The part of Penn avenue improved under this act was, in the main, through the rural or suburban part of the city, where the land is held in large tracts, and where much of it is unimproved, and used only for agricultural purposes. It is contended that the assessment according to the frontage of property abutting on this avenue, to pay for the improvement thereof, is not a fair and legitimate mode of taxation, and does not impose the burthens in accordance with the benefits conferred. The frontage rule, as a practical adjustment of proportional benefits, can apply only to cities and large towns, where the density of population along the streets and the small size of the lots make it a reasonably certain mode of arriving at a true result; but to apply the same rule to rural and suburban lands leads to such irregularity and injustice as to deprive it of all soundness as a rule: In re Washington Avenue, 19 P. F. Smith 361. Local assessments can only be constitutional when imposed to pay for local improvements clearly conferring special benefits on the properties assessed, and to the extent of these benefits. They cannot be imposed when the improvement is either expressed or appears to be for general benefit: Hammett v. The City of Philadelphia, 15 P. F. Smith 155; Cooley’s Constitutional Limitations 500.

      Greorge Shiras, Jr. (with whom was Thomas S. Bigeloiv, City Solicitor), for defendant in error. —
    The system under which this improvement was made derived its name from the title of the first act, and its main points of difference from the street laws in force were briefly these: 1. It required a petition from the majority of property holders along the line of the proposed improvement before the councils could act. 2. The improvement, when authorized by councils, was placed under the exclusive charge of commissioners elected by the owners of property abutting on the improvement. 3. Instead of making the whole cost of the improvement payable immediately, it was divided into ten equal annual instalments, with interest. The provisions of this system were eagerly sought by property owners in the annexed districts on every side of the city ; so much so, that up to the time of taking the writ of error in this case, the sum of five millions of dollars had been borrowed by the city on the different streets and avenues constructed under the Penn avenue acts. No property owner along the line of any streets or avenues improved under this system, has in any manner formally objected to these improvements while they were in- progress and they were under the direct and exclusive direction of the persons immediately interested, to wit: the property owners.
    Should this case be reversed, it would practically add over five millions of dollars to the debt of the city, which would be a sore burthen to those who were in no way benefited by the legislation ■under consideration. The power of apportionment of a local tax for a local improvement within the limits of a municipal corporation by the frontage rule has been frequently before this court, and approved, viz.: Pennock v. Hoover, 5 Rawle 291; Northern Liberties v. St. John’s Church, 1 Harris 104; City v. Wistar, 11 Casey 427; Commonwealth v. Woods, 8 Wright 113; McGonigle v. City, Id. 118; Magee v. Commonwealth, 10 Id. 358; Stroud v. City, 11 P. F. Smith 255; Schenley v. City, 1 Casey 130; City v. Tryon, 11 Id. 404; City v. Field, 8 P. F. Smith 320; Smith v. McCarthy, 6 Id. 359; Lea v. City, 2 Weekly Notes 254.
   Chief Justice Agnew

delivered the opinion of the court, January 2d 1877.

It is fortunate for the rights of the people when a case occurs causing the courts to pause and to retrace the boundaries of delegated power. Thus the stealthy steps of invasion may be detected and the power denied, ere it be too late and a precedent become fixed beyond judicial control. This is such a case. The attempt is to apply, here, the frontage rule of valuation of compact city lots to a rural population, and make farm property and town lots indiscriminately pay for an expensively paved city highway, under the name of a street, running far out into the country. The assumption is that by the addition of extensive rural districts to a city, the whole surface is brought by the legislative power within the sphere of city taxation for municipal purposes; and cases are cited of local or special taxation for local purposes, as justifying this stretch of power. Rut seeming analogies must not be allowed to lead our minds astray. Fortunately this subject has been examined in several recent cases, leading to a fuller development of the principles at the foundation of this power. Prominently among them is Hammett v. Philadelphia, 15 P. F. Smith 146 and Washington Avenue, 19 Id. 352. In the early cases the mode of determining the benefits, to pay the damages and the cost of construction, was by actual view and assessment: McMasters v. Commonwealth, 3 Watts 292; Fenelon’s Petition, 7 Barr 173; Extension of Hancock street, 6 Harris 26. These were followed in the later cases of Commonwealth v. Woods, 8 Wright 113 ; McGee v. Pittsburgh, 10 Id. 358; Wray v. Pittsburgh, Id. 365. Afterwards came the frontage mode of equal valuation per foot front: Schenly v. Allegheny, 1 Casey 128; Philadelphia v. Tryon, 11 Id. 401; Schenly v. Allegheny, 12 Id. 57; McGonigle v. Allegheny, 8 Wright 118; Stroud v. Philadelphia, 11 P. F. Smith 255. In none of these cases was there a close examination of the per foot front rule, but it seems to have been assumed as a convenient approximation where the property fronting on the street was of a kind and not differing much in value. But in Washington Avenue it is shown that this mode of valuation is but a substitute for actual assessment. It is there said, “ So long, therefore as a law faithfully and reasonably provides for a just assessment according to the benefits conferred, and does not impose unfair and unequal burthens it cannot be said to exceed the legislative power of taxation when exercised for proper objects. It is on this ground only that assessments according to the frontage of property on a public street to pay for its opening, grading and paving, can be justified. As a practical result in citi®_jp^l^gg_towng_.&6„pej,fe9Í. front modéqf assessment reaches a just and equal apportionment in most ca'ses.” Again] “"But it is an admitted substitute only because practically it arrives as nearly as human judgment can ordinarily reach, at a reasonable and just apportionment of the benefits on the abutting properties.” “But this rule as a practical adjustment of proportional benefits can apply only to cities and large towns where the density of population along the street and the small size of the lots make it a reasonably certain mode of arriving at a true result. To apply it to the country and to farm lands would lead to such irregularity and injustice as to deprive it of all soundness as a rule, or as a substitute for a fair and impartial valuation of benefits in pursuance of law; so that at first blush every one would pronounce it to be palpably, unreasonable and unjust.”

It needs no reasoning to prove the soundness of these views.

That the benefits a property owner receives from an improvement can be ascertained only by a reasonable mode of assessment is plain. And, that to measure the fronts of' all thejbutting properties and divide the cost by an equal charge per foot front upon each, is not an\ assessment of advantages, but simply an arbitrary mode of charging, is equally plain. Therefore, to be just and equally fair to each, it is evident all the owners must stand in like, or in reasonably equal, circumstances; otherwise the charge is an exaction nota fair, assessment. The cases of frontage cited, so far as discoverable, were of city lots in close juxtaposition. The frontage rule, when applied to such cases, is not denied. As remarked in Washington Avenue, “Whatever doubt might have been originally entertained of it as a substitute, which it really is, for actual assessment by jurors or assessors under oath, it has been so often sanctioned by decision it would ill become us now to unsettle its foundation by disputing its principle.” These remarks will enable us to test the case before us. The law under which the proceeding took place was peculiar, and in some respects extraordinary. .It was passed April 2d 1870 (PmnpjnJL, ]796). A marked featurels~that it gives poweffOTTmlrjority of the abutting owners on Penn avenue, between St. Mary’s avenue and the eastern boundary of the city of Pittsburgh, a distance of about three miles, to elect a commission of five citizens, without any previous ordinance or subsequent control of the city. The only assent of the city required was its approval of the act before its taking effect. Then the commissioners were to determine the kind of pavement, contract for the work, make requisitions on the city for bonds, and sell them to raise money to pay the contractors. When the avenue was completed it was to come under the city control. The commissioners were to ascertain, on completion, the entire amount of bonds sold by them and the interest, and this should be taken to be the cost of the improvement and assessed equally per foot front upon the abutting properties. They were to give notice, and within twenty days might correct errors. After that their judgment became final, without appeal. Now, though technically it may be said the improvement was made under municipal authority, because of the general approval of the act by the city, yet, in fact, the improvement is made by a majority of the owners, the minority nolens volens. It is perhaps not beyond the power of the legislature to authorize the work to be done by such a commission, but it will be seen that practically the voice of the property owner who objects to be thus charged with the expense, is not heard even through his representatives in the city councils. The municipal authority cannot even intervene for his protection. Now, without resting a decision on these marked features of the law, they constitute strong reasons for a rigid examination into the power of the legislature to authorize the frontage rule to be applied to this case. The east end of Penn avenue upon which this improvement is made extends from St. Mary’s cemetery, near the United States Arsenal, eastward for about three miles, as shown by the distances upon the plot made part of the stated case; passing in that distance the grounds of several cemeteries and through lands partly farms, partly large rural residences, partly smaller lots, and partly the lots of several hamlets and villages, which were taken into the city territory. The avenue is a broad, wood-paved highway, after the manner of a city street, and its cost, as evidenced by the bonds issued, was $356,500, while the cost per foot front, as evidenced by the map and the charge, was within a small fraction of ten dollars; the defendant’s lot being 108T4a% feet front, and his assessment $10†3.84. The bonds which, under the 16th section, were made the cost of the improvement, were made up of the contract price and the incidental expenses. The contracts were to be let by the commissioners, without supervision, the, law providing for no settlement of their account, and the expenses were such as might be determined by the commissioners to be incidental and subject to no review. The commissioners were, no doubt, reputable men, and so far as their personal supervision went, their duties were performed, no doubt, faithfully. Yet, such a system, which subjects the property holders to’jobbing contracts and ingenious expedients, such as men bent upon making all they can out of their jobs, and to patent-right claims for wooden streets, which rot out in seven or eight years, without a power of self-protection or the control of even their representatives in councils, is not to be viewed complacently. How near the actual value of the improvement approximated the estimated bond cost, may be inferred when it is seen that the whole cost was $350,000, and the per foot cost ten dollars. This blending of town and country, of city lots and farm lands, of the residences of the living and the graves of the dead, constitute a group so motley and discordant, a series so wanting in similitude and uniformity, that .the frontage or per foot front rule cannot be applied to it. It is so plainly, palpably, ranldy and ruinously unjust, it must be pronounced no proper or lawful mode of special taxation, but an injustice so rank is therefore void as against the right of property as protected by the Bill of Bights. The ground of this has been so distinctly stated in the Washington Avenue case it need not be re-stated here: 19 P. F. Smith 363, A fixed sum to be paid per foot, without regard to the character, kind, vilueNriextenFoF'the property, is an exaction, not a,just assessment according to benefits. The extent, back to which the lien rññi“(12Ó feet), merely limits the quantity to be taken, but does not change the kind, character or value of the property upon which the fixed charge is fastened.

But it is held that Seely’s lot is in a village, and therefore the per foot rule may apply to him. Possibly this might have been the case had the streets of that village alone been improved. But this is not its character. The act assumes to make a wide and costly avenue, extending long distances through rural lands, where it is not needed, and to make the cost of the whole the measure of the cost of each owner. It makes a unit of the entire distance, where the per foot front rule obtains, and where it does not obtain, and then divides 'this integer into fractions of a foot; imposing on the defendant his proportion of the fractions. Such a mode of ^ charging might be continued for any indefinite distance over the ■ state, and the owner of each lot in every village through which the line passes be made to pay his per foot charge of the entire route. The principle of such a system is wrong, and therefore cannot be applied even to the village lot-owner. If the rural portions of the route be exempt, as clearly they must be, then must all others be also, for the system itself is founded on a general error. If this case be examined closely, what is'it but a repetition of the Hammett or Broad street case in principle, differing only in form. Penn avenue, like Broad street, is a grand thoroughfare, designed for the use of the people of the city proper, where they may ride out into the country for pleasure or profit. That it is á great useful public improvement, so long as its wooden pavement lasts, no one will deny. But it is this very public character for general use, and not for local benefit through the farms and along the cemeteries, which should protect the owners along the route from special taxation. More literally and directly the case is governed by the case of the Washington avenue, which it resembles more closely in form and fact.

More than once lately we have had occasion to reprehend that legislation which seeks to casOlie^biuidens^of — tbe-publi&a)n the shoulders of individuals, often bringing ruin on men of niodejate 'means/ "Suchlegislation is too often the fruit of designing schemers to promote their selfish ends. We may therefore say that while the frontage rule is conceded to be a legal mode of assessments, when properly applied,' it is not to be used as an arbitrary mode of casting the public burthens upon the property of individuals.

To prevent any misconception of the facts, we may add before closing that they come up as a stated case, and not in equity form. If there be any facts to raise an estoppel or other defence in equity, the parties ought to have stated them. No motion has been made to quash the case as defective. The case itself states “ that the line of said improvement in part was through what is called the rural or suburban part of the city, and the defendant’s premises are situated in such rural district. The plan hereto attached is the assessment plan for said improvement, and is made part hereof.’-’ The plan referred to includes large tracts of land fronting on the avenue, whose lines and measurements noted prove that they are not city lots. Eor example St. Mary’s cemetery fronts 1000 feet, Philip Winebiddle’s property 1261 on one side and 2427 feet on the other. The Pennsylvania Bailroad Company’s land 1829. Then we find many tracts fronting 300 to 400 feet, 400 to 500, 500 to 600, 600 to 700, 700 to 800, 800 to 900 and 900 to 1000.

The facts of the case therefore distinctly appear, and we ought not of our owii motion to quash the case.

The judgment of the court below is therefore reversed, ,and judgment is now entered for defendant for costs.

Paxson, J., filed a dissenting opinion.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Phillips et al. versus Allegheny Car Company.
    1. A., the agent of a company, contracted with B. to supply the company with lumber, one half to be paid by the company in cash within the first fifteen days of each month, for the lumber delivered the preceding month, and the other half to be paid in the stock of the company at par value. The company neither made the cash payments nor tendered the stock, and B. brought an action to recover the whole amount of the claim in money. Held, that the agreement to take pay in stock for one half was absolute and not contingent upon the prompt payment of the cash portion, and where there had been no refusal to deliver the stock, the mere failure to pay the cash at the times appointed did not enable B. to rescind the contract and demand payment of the whole in money.
    2. B., having paid for it in lumber, became the owner of the stock and entitled to demand a certificate therefor, and in the absence of such demand or refusal by the company to issue the certificate, the company was not in default by a failure to tender the stock.
    3. Brown v. Foster, 1 P. F. Smith 165, distinguished.

      October 6th 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875, No. 256.
    This was an action on the case, brought by John 0. Phillips and William Mittenzwey, trading as Phillips & Mittenzwey, against the Allegheny Car and Transportation Company, to recover in money the amount due on a contract to deliver lumber and take part pay therefor in stock of the defendant company.
    The case was thus:
    Mr. D. C. Phillips, who was treasurer of the company, with the authority from the company to purchase lumber, went, in 1873, to his brother, one of the plaintiffs, and said to him that the company would take a certain quantity of lumber from his firm, Phillips & Mittenzwey, if they would accept the pay therefor one-half in cash and one-half in the stock of the company at par value. Mr. John 0. Phillips asked what was meant by cash, and his brother answered that the custom of the company was to pay each month before the 15th for the previous month’s receipts. On these terms Mr. John 0. Phillips said his firm would take the order and fill it. The par value of the stock was $50, and it was not denied that at the time of suit brought it could have been sold for its par value.
    Phillips & Mittenzwey from time to time delivered the lumber, and the whole order was filled prior to October 2d 1873. '
    The firm repeatedly asked for payments on account, but none were made. In October of the same year Mr. John 0. Phillips met Mr. Paul, the general manager of the company, on the street, and told him if the company did not pay the money that was coming to his firm, they would refuse to take the stock. On the 22d of the next month, November, defendants paid $700 on account, which the plaintiffs received without objection. The plaintiffs never made any demand for the stock, and it appeared that defendants were ready and could have delivered it at any time. No further payments having been made by defendants, this suit was brought by-plaintiffs, who claimed that the whole balance due was payable in cash.
    On the trial, before Collier, A. L. J., plaintiffs presented these two points, both of which the court refused:—
    “ 2. That under the special contract, as proved by defendants, it was the duty of defendants, at least within a reasonable time after the final delivery of the lumber, to offer certificates of stock and payment of the money, in compliance with the contract, and failing this, the whole became payable in money.
    “ 3. That the failure by defendants to pay cash from month to. month for one-half the delivery of lumber, as proved by D. C. Phillips to be a condition of the contract, gave the plaintiffs, the option to rescind the special terms as to stock, and claim the whole amount in money.”
    The following point was reserved by the court:—
    “ That if the jury find that plaintiffs agreed to furnish and did furnish the defendants the lumber as set forth in their bill of particulars, at the agreed price of $4063.70; that it was a part of the contract that one-half the price was to be paid by defendants in cash within the first fifteen days of each month for the lumber delivered in the preceding month, and the other half was to be paid in the stock of the company at par value; that the lumber was all delivered from time to time prior to the 2d day of October, but the defendants failed, though often requested, to pay any cash on the contract according to its terms; that after the entire delivery, plaintiffs notified defendants that unless they complied with the terms of the contract by making the cash payment, they, the plaintiffs, would rescind the contract as to the stock and claim the whole price in money; that subsequently, to wit, November 22d 1873, defendant paid $700 on account, which was received by the plaintiffs without objection, or notice that they intended to disaffirm the original agreement, still leaving $1331.85 due on the cash half of the contract, that plaintiffs, on such a state of facts, had the right to claim the whole price in money, and are entitled to a verdict for the balance of their bill, to wit, the sum of $3363.70, with interest from November 22d 1873.”
    There being no dispute about the facts in the foregoing point reserved, the court directed the jury to find a verdict for the plaintiffs for $1445.52, subject to the opinion of the court on the law reserved; and should that opinion be with the plaintiffs in the above point, then the verdict to be for them for $3363.70 with interest from November 22d 1873, non obstante veredicto.

    In their charge the court said: “We think the true rule is this, that if you believe the contract was made as stated; that the stock was of par value; and, that Mr. Phillips went from time to time to get the money due, and even gave notice that if they did not pay it he would not take the stock, yet if afterwards he received $700 on account, and then gave no further notice that he would not stand to the original contract, the plaintiffs would be bound to fulfil it; that is it would be an affirmance, under all the circumstances of the original bargain.”
    On the reserved question the court entered judgment for, the defendant, and thereupon judgment was entered on the verdict.
    Plaintiffs took this writ, and the errors assigned were the refusal of plaintiffs’ two points ; in refusing to enter judgment for plaintiffs for the full amount of their claim upon the point reserved, and in charging the jury as above.

      Hill Burgwin, for plaintiffs in error. —
    The contract substantially was this; that plaintiffs would take half their bill in stock, provided the other half was paid promptly in cash on delivery. The cash has not been paid, though repeatedly demanded before suit brought, and this condition unperformed plaintiffs claim they have the right to recover the whole in money, and the contract should be considered an entirety, not separable. It was the duty of defendants to relieve themselves of liability to tender the stock. When no time or place is fixed by the contract for the payment or delivery of specific property, there must be an offer or tender within reasonable time to pay or deliver. If no place be fixed, obligor must seek creditor: Roberts v. Beatty, 2 Penna. R. 63. No tender having been made at proper place and time, defendant’s right of election is gone, and plaintiff may recover for money due: Ibid; Church v. Feterow, 2 Penna. R. 301; Fleming v. Potter, 7 Watts 380; White v. Tompkins, 2 P. F. Smith 363, and cases cited ; 2 Parsons’ Contracts 651, notis. The case of Brown v. Foster, 1 P. F. Smith 165, governs this case, and carries the rule beyond what is here claimed. Defendants may have been willing but were not ready. Willingness and readiness to pay are distinguishable: North Am. Oil Co. v. Forsyth, 12 Wright 291. For non-delivery of stock when obligation exists, money by way of damages may be recovered: Neiler & Warran, v. Kelley, 19 P. F. Smith 403.

      S. H. MeOormioh and Robb Snively, for defendants.
   Mr. Justice Paxson

delivered the opinion of the court, October 23d 1876.

A reserved point must be based upon certain facts admitted in the cause or found by the jury. In this case the facts are admitted; expressly stated to be so in the point itself. The court below entered judgment on the reserved question for the defendant, and judgment on the verdict, which is assigned here for error.

The case was tried below upon the theory that the contract was conditional, and that the right of the defendants to pay for one-half the lumber in stock of the defendant corporation depended upon their prompt payment in cash for the other half. But the facts as set forth in the reserved point are not so. It is there stated, “that it was a part of the contract that one-half the price was to be paid by defendant in cash, within the first fifteen days of each month, for the lumber delivered in the preceding month, and the other half was to be paid in the stock of the company at par value.” This was certainly an unconditional contract, but it was urged that the whole became payable in money for two reasons, viz.: 1. The failure to pay for one-half in money as the lumber was delivered, and 2. The failure to tender the stock. In regard to the first proposition, it is sufficient to say that the agreement to take pay in stock for one-half was absolute, and not contingent upon the prompt payment of the cash portion. A-refusal to deliver the stock would undoubtedly have made the whole sum payable presently in money, but we are unable to see how a mere failure to pay the cash on the days and times appointed can enable the plaintiffs to rescind the contract and demand payment of the whole in money. Nor do we see that the failure to tender the stock to the plaintiffs can have such effect. It is true there is a line of cases which decide that where a contract is made to pay in a particular commodity the debtor must have the article at the time and place.designated in the contract for its delivery, or he becomes liable to pay in money : Roberts v. Beatty, 2 Penna. R. 63; Church v. Feterow, Id. 301; Fleming v. Potter, 7 Watts 380; White v. Tompkins, 2 P. F. Smith 365. There is also the case of Brown v. Foster, 1 P. F. Smith 165, in which Foster had done certain work for Brown under an agreement that one-half of it was to be paid for on completion, by Brown’s notes at six and twelve months. Before the period at which the first note would have matured, Foster brought suit, and was permitted to recover, on the ground that the giving of the notes was a privilege to Brown, and unless he chose to avail himself of it by delivering or tendering the notes at the time, the demand became a money demand, and Foster could sue at once. The court held that there was no agreement for time, and that the giving of the notes was the price of the indulgence and a condition precedent to his obtaining time. The present case is easily distinguished from any of those above cited. Here the contract was with a corporation. It agreed to pay for one-half the lumber in its own stock. Had the contract been to pay in a horse, or even in the stock of another corporation, the case would have been materially different. But here the stock was to be issued by the defendant corporation to the plaintiffs, and to that extent they became purchasers from said corporation of its own stock. Having paid for it in lumber, they became in fact and in law the owners of the stock, and were entitled to demand a certificate therefor from the company. The stock of a corporation is an intangible thing; it can neither be seen nor handled. The certificate is the mere evidence of its existence, and of the title of the owner. The failure of a corporation to issue certificates of stock for the first instalment of the subscription is no defence to a suit for a subsequent one: Shelbyville v. Shelbyville & Eminence Turnpike Co., 1 Met. (Ky.) 54; Hardy v. Merriweather, 14 Ind. 203; Vawter v. Ohio Railroad Co., Id. 174. A subscriber who has paid for his stock cannot recover his money back for the mere failure to deliver the stock without a previous demand for it. It was even held in Arnold v. Suffolk Bank, 27 Barb. 424, that “ an action for money had and received will not lie against a corporation by one who has subscribed for a certain number of shares and paid for them, merely on the ground that the company refuses to deliver the certificates.” There was no allegation here that the defendant corporation was not ready and willing to issue to these plaintiffs the certificates of stock to which they were entitled under this contract.- In the absence of such demand and refusal, we do not think the defendant is in any default, and the judgment must be affirmed.


author: Mr. Justice Mercur

text:
    Minnig’s Appeal.
    1. A preliminary injunction is never awarded except in a clear case of right and where no doubt exists as to the claim of the plaintiff to the remedy he invokes, and where therefore the proof of the right is so equally balanced as to leave it in doubt, the injunction should be refused until the rights of the parties are ascertained.
    2. A court of equity may interfere in a case of trespass to prevent irreparable mischief and. multiplicity of suits, but if the trespass be fugitive and temporary, and adequate compensation can be had in an action at law there is no ground to justify its interposition, and no decree should be made to be followed by injunction unless irreparable injury be clearly established.
    October 6th 1876.
    Before Agnew, C. J., Sharswood, Mercur, ' Gordon, Paxson and Woodward, JJ. Williams, 'J., absent.
    Appeal from the Court of Common Pleas of JSrie county: Of October and November Term 1875, No. 164. In Equity.
    This appeal was from a decree granting a special injunction to restrain Jacob Minnig from teaming down a fence between the lot of himself and wife, and that of the complainant, E. E. Stuerznickel.
    The bill, which was filed September 10th 1874, sets forth that complainant owns a lot on Ninth street in the city of Erie; that upon the east side of this lot there is a fence which for twenty-five years has been the undisputed boundary line, of complainant’s lot; that Jacob Minnig owns the lot adjoining, and disputes this boundary line, and has repeatedly declared that he will tear down the fence; has given complainant notice that he would tear down and remove it within three days, and threatened complainant in an angry manner; that complainant is afraid he will carry his threats into execution; that the fence is valuable and necessary, and if tom down will do complainant irreparable damage, and he therefore prays'for a special injunction, and upon final hearing a perpetual injunction to restrain defendant.
    A special injunction issued, and on the 14th of September 1874, defendant filed an answer which claims that the fence is the boundary line, and avers that it is two feet upon the land of himself and wife; admits that he notified complainant to remove the fence from the land of defendant and wife, and that defendant would erect a more comely fence on the true boundary line; denies that the complainant has the exclusive property in the fence; that defendant ever intended to threaten to occupy the land of complainant, and denies also the right of complainant to occupy defendant’s property.
    On the 21st of September the preliminary injunction was continued until further order.
    When the cause was at issue a master was appointed to take testimony and report, from whose report it appeared, that the title to a certain in-lot, No. 698, was in 1847 vested in Mrs. Mary De Witt; that the western half of this in-lot she sold in 1847, its boundaries being described by certain courses and distances, but by no monuments or marks on the ground; that this western half of said in-lot by various mesne conveyances, in which were preserved the same description, finally vested in complainant; that the fence in dispute was two feet from the centre line of this in-lot, and extended over that distance on the eastern half, which was conveyed in 1874 by Mrs. De Witt to Elizabeth Minnig, wife of defendant. It appeared also that defendant did threaten to tear down the fence ; and that he and his wife had brought an action of ejectment for the strip of land. It was also in evidence that the fence had stood in its present place since 1847.
    The master further reported that the testimony clearly shows that complainant has no standing in equity, as. he has no title to rest upon, and continued, “ I am of the opinion that the fence, the subject of the controversy here, is two feet upon the land of Mrs. Minnig at the front; * * * and that a perpetual injunction ought not to issue to restrain the defendant from removing it, and if he sees proper, placing a fence upon the true centre line of the in-lot; and that the present injunction ought to be dissolved.”
    The complainant excepted,
    1. To the decree and finding of the master, recommending a dissolution of the injunction, and that it should not be made perpetual, as it is out of the province of the master; his duties end with finding the facts in the case.
    2. To the finding of the master as incorrect, as the evidence shows the fence has stood where it now stands for over twenty-six years, and has been recognised as the line of lots by all parties and owners for that period of time, to wit, since 1848.
    3. The defendant, a late purchaser, should not be allowed to destroy or remove the fence by force, but the injunction should be continued, and the defendant compelled to establish his right to the same, if he hath such right, by verdict in ejectment; that a line so long-established should not be destroyed by force and violence.
    4. Disputed lines can only be settled by ejectment, not in equity nor by force.

      The court (Vincent, P. J.) overruled the exceptions, in the following opinion:—
    “ The owner of the land adjoining the complainant, and claimant of that on which the fence stands, has. brought an action, of ejectment for the disputed strip, and the rights of the respective parties will, in that suit, be determined where they should be, in a court of law; but in the meantime we have the power, and under the complaint in this case it is our duty, to prevent any violence upon the claimed rights or property of the complainant, in the interests of both peace and justice.
    “ The bill in this case, it is true, asks us to grant a perpetual injunction against the defendant, and, therefore, does involve the necessity of an inquiry into the titles of the respective parties, if we felt at liberty to decide upon the question of title; and in that view of the case the master was justified in reporting his opinion upon the absolute rights of the parties to this disputed strip of land; but in view of the fact that the title to this strip is now in controversy in a suit at law, we are not disposed to pass upon the question of title in this suit, and we sustain the exceptions, so far as the report advises a decree looking to such an adjudication.
    “We also sustain the exception to so much of the report as advises that the injunction now in force be dissolved, for we are of the opinion that it should remain until the suit at law is decided.
    “ We will let stand also the question of costs until the decision of the suit at law; for upon the decision in that case may depend the proper adjudication upon the subject of costs.
    “ The report of the master is set aside and the injunction continued until the final decision in the case of Elizabeth Minnig and Jacob Minnig, her husband, v. E. E. Steurznickel, in Common Pleas of Erie county.”
    Defendant appealed from the decree of the court, and the third assignment, inter alia, was as follows
    The court had no power to continue the special injunction after the report of the master showing and reporting that the plaintiff had no ground or cause of complaint, and no right to equitable relief.

      S. JE. cf- T. S. Woodruff, for appellant. —
    Where the right is doubtful or denied by the defendant under oath, or the injury can be repaired in damages, courts will not make use of the extraordinary power of injunction: Rhea v. Forsyth, 1 Wright 506; New Boston Coal & Mining Co. v. Pottsville Water Co., 4 P. F. Smith 164; Haines’s Appeal, 23 Id. 169; Mammoth Vein Coal Co.’s Appeal, 4 Id. 183; Appeal of Brown, 12 Id. 17, 21; Hoskinson’s Appeal, Pittsburgh Legal Journal of June 30th 1875; Clark’s Appeal, 12 P. F. Smith 447; Schlecht’s Appeal, 10 Id. 173; Kelly v. Long, 7 Phila. R. 455; Rhodes v. Dunbar, 7 P. F. Smith 274; Tillmes v. Marsh, 17 Id. 508; Hieskell v. Gross, 7 Phila. R. 319.

      Benson Brainerd, for appellee,
    cited Hilliard on Injunctions 320; Jarden v. Phila., Wilm. & Balt. Railroad Co., 3 Whart. 502.
   Mr. Justice Mercur

delivered the opinion of the court, January 2d 1877.

This bill charged that appellant threatened to tear down a fence, standing on the line between adjacent lots of the parties, and to remove it eighteen inches on to another line, claimed by the appellant to be the true boundary line. It prayed for a special injunction then, and upon final hearing, that the defendant be perpetually enjoined from tearing down or interfering with the fence. The special injunction was granted. The answer denied making the threats, but alleged the fence to be about two feet over on the land of the appellant’s wife. It admitted that he had notified the complainant to remove it to the true line, and on his failing so to do, that he, the appellant, would remove it.

The case was referred to a master, who also acted as examiner. He found it was clearly shown, that the fence claimed by the plaintiff below to be the boundary line between them, was two feet upon the defendant’s land or his wife’s land. The master, therefore, was of the opinion, “ that a perpetual injunction ought not to issue to restrain the defendant from removing it, and if he sees proper, placing a fence on the true centre line,” and that the preliminary injunction ought to be dissolved.

On exceptions filed, the court below set aside the master’s report and continued the injunction until the final decision in the action of ejectment, brought by appellant and wife, after bill filed, for the land in dispute. From the decree granting the special injunction, and continuing the same, this appeal was taken. Several errors were assigned, but the argument was substantially confined to the third assignment.

The correctness of the decree depends on whether the right of the appellee was established with sufficient certainty, and the injury threatened was irreparable.

1. A preliminary injunction is emphatically the strong arm of the court, and is never awarded except in a clear case of right, and where no doubt exists as to the claim of the plaintiff to the remedy he invokes: Brightly’s Eq., § 303; Biddle v. Ash, 2 Ash. 211. Where the proof as to the right is so equally balanced as to leave it in doubt, the injunction should be refused until the rights of the parties are ascertained and settled: Mammoth Vein Coal Co.’s Appeal, 4 P. F. Smith 183; Brown’s Appeal, 12 Id. 17. Unless it be a strong and mischievous case of joressing necessity, or the right has been previously established at law, a party cannot ask a court of equity to enjoin: Gardner v. The Village of Newburgh, 2 Johns. Ch. R. 164; Van Beren v. Van Beren, 3 Id. 286. Where the plaintiff’s right has not been established at law or is not clear, but is questioned on every ground on which he puts it, not only by the answer of the defendant, but by proofs in the cause, he is not entitled to remedy by injunction: Rhea v. Forsyth, 1 Wright 503.

• 2. A court of equity may interpose, in a case of trespass, to prevent irreparable mischief, and to prevent multiplicity of suits; but if the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of a court of equity: Brightly’s Eq., § 295. As a general rule, mischief which is susceptible of compensation in damages is not irreparable: Brown’s Appeal, supra. No decree should be made to be followed by injunction, unless irreparable injury be clearly established: Clark’s Appeal, 12 P. F. Smith 447. Hence, when the owner of a hotel filed a bill to restrain the removal from it of a cooking-range set in brick work, a hot-water reservoir connected by cast-iron pipes running through the brick-work to the range, a carving-table nailed to the floor, and other fixtures of a permanent character for.a hotel, it was held the bill would not lie, as they were articles of convenience only, and not of necessity, and there was an adequate remedy at law, therefore a court of equity had no jurisdiction: Ibid. It is there farther said it was never intended to take away the common-law right of trial by jury, where a wrong done by a party could be redressed by it. In support of this view the learned chief justice cited numerous cases. So in Jerome v. Ross, 7 Johns. Ch. 330, in an opinion by Chancellor Kent, it was held that, for a naked trespass for which compensation could he made in money, the party must resort to his action of trespass ; that an injunction will not be granted, unless there was an intention to actually destroy the subject in dispute, and not merely to injure it.

Jarden v. Phila., Wilm. & Balt. Railroad Co., 3 Whart. 502, was 'urged as sustaining the bill. That, however, was the. case of a bill to enjoin a corporation from taking permanent possession of land before a performance of the conditions which preceded its right to possession. The street was to be opened, and the damages were to be paid. Neither had been done. The' case is not analogous to the one under consideration.

Looking at the facts found by the master, the evidence not only fails to establish the right of the appellee in the fence or in the ground on which it stands, but it shows the right to both to be in the appellant. Furthermore, if the latter should remove the fence without right, the trespass would be temporary only, and could be compensated in damages. The damages recovered would replace it. While the fence was probably convenient for the complainant, it was not as necessary for the enjoyment of his lot as the fixtures were to the enjoyment of the hotel in Clark’s Appeal, supra. Considering the whole case, we do not think the facts gave the court jurisdiction to grant an injunction, and the learned judge erred in making the decree.

Decree reversed, and bill dismissed at the costs of the appellee, without prejudice.


author: Mr. Justice Woodward

text:
    Thompson versus Thompson.
    1. The right of a husband to procure a conveyance of land to be made to his wife and to settle the land upon her is not affected by the fact that he borrowed a portion of the purchase-money at the time of the execution of the deed, if at that time he had no other debts, was not about to enter into any hazardous business, and his acts indicated no intention to defraud creditors.
    2. Plaintiff, who loaned the portion of the purchase-money, having obtained a judgment against the husband on a judgment-note for a balance due, together with a new loan, sold the land, and brought ejectment to obtain possession, against whose claim defendants set up the wife’s title. On the trial it appeared that plaintiff had advised the purchase, was present when the deed was executed and subscribed as a witness thereto, and the defendants asked the court to instruct the jury that if they should believe from the evidence, that the plaintiff knew of the conveyance to the wife and lent his money to the husband, then he accepted the husband individually as his debtor without reference to the property; that upon such facts he would be estopped, and that his signature to the deed was some evidence of knowledge on his part; all of which the court refused, and instructed the jury to find for plaintiff. Held, that these points should have been affirmed, and the fact of knowledge being denied by plaintiff the question should have been submitted to the jury.
    3. The acceptance of a new bond, which included the balance of the purchase-money due, together with a new loan, did not create a new indebtedness that would estop plaintiff from asserting his claim against the land, if during all this time he was in ignorance of the conveyance to the wife.
    October 7th 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny comity:. Of October and November Term 1876, No. 33.
    This was an action of ejectment, brought by William Thompson against George Thompson and Jane his wife, to obtain possession of a lot of ground in the city of Allegheny.
    The facts were these: On the 22d of March 1866, Robert C. Wilson and wife conveyed to Jane Thompson, one of the defendants, the dot in dispute.
    The amount paid for the lot was $1425, which was paid in cash at the time of the execution and delivery of the deed. Of this amount, George Thompson paid $925 of his own funds and borrowed the remaining $500 from William Thompson, the plaintiff, at whose instance and advice the lot was bought, and who was present at the execution of the deed and was one of the subscribing witnesses. At the time this deed was made to his wife, George Thompson had no other indebtedness than this to William, for which he gave a bond. There was no evidence that he was possessed of any other property.
    The deed was recorded on the 2d of February 1867. George made payments on account of this $500 up to July 5th 1870, when it was reduced to $187. On that day he borrowed from William $600 more and gave him a judgment note, which included the $600, together with a due bill for $51 and the $187, the balance of the original indebtedness. Judgment was subsequently entered on this note, and under that judgment the lot in question was sold, William Thompson becoming the purchaser, who brought this ejectment.
    The defence was, that the lot was the separate property of Jane Thompson, the wife of George, and that plaintiff, by his purchase of the interest of the husband, acquired no title, and that having signed his name as a witness to the deed, and having knowledge of the conveyance to Jane Thompson, he was estopped from denying her title.
    On the trial before Sterrett, P. J., the defendants submitted the following points:—
    1. Defendants ask the court to charge, that the indebtedness of 1866 was paid by the judgment bond of July 5th 1870, which latter bond made an entirely new indebtedness, accruing four years subsequent to the purchase from Wilson et ux.

    2. That if the jury believe from the evidence that the plaintiff knew of the conveyance to Jane Thompson, and loaned the money to George Thompson, then the plaintiff accepted George Thompson individually as creditor, without reference to the property.
    3. That if the jury believe that the plaintiff knew of the conveyance to Jane Thompson, and loaned his money to George Thompson, he is estopped, and defendant is entitled to recover.
    4. That his signature as witness to deed is some evidence of knowledge on part of plaintiff.
    The court refused all these points and instructed the jury to find for plaintiff, which was accordingly done, and a motion for a new trial having been overruled, judgment was entered on the verdict.
    The defendant took this writ, and assigned for error the refusal of the foregoing points and the instruction of the court.

      Samuel O. Sohoyer, for plaintiffs in error. —
    It was for the jury to say from the evidence in the case whether plaintiff had knowledge, and loaned his money to the husband for the purpose of completing the gift or conveyance to the wife, and if they believed the evidence, plaintiff was estopped from denying the wife’s title: French v. Mehan, 6 P. F. Smith 286. The deed was recorded February 2d 1867, and at date of judgment note had been recorded three years, and plaintiff therefore had record notice and it is presumed acted upon it. To divest the title of the wife by this sale, it is necessary to show that the husband was indebted at the time of purchase and that he took the conveyance to his wife to defraud and hinder creditors: French v. Mehan, supra; Williams v. Davis, 19 P. F. Smith 28. The fact that the. property conveyed to the wife was all the husband owned, was immaterial: Nippes’s Appeal, 25 P. F. Smith 472. The questions as to the wife’s title were for the jury. The binding direction was error where there was a question for the jury: Strohl v. Levan, 3 Wright 177.

      J. W. Kirker, for defendant in error. —
    Where property is claimed by a married woman against the creditors of her husband, she must show by evidence which does not admit of a reasonable doubt, either that she owned it at the time of her marriage, or else acquired it afterwards by gift, bequest or purchase; in case of a purchase after marriage, the burden is upon her to prove distinctly that she paid for it with funds which were not furnished by her husband: Gamber v. Gamber, 6 Harris 366; Keeney v. Good, 9 Id. 355; Raybold v. Raybold, 8 Id. 311; Walker v. Reamy, 12 Casey 410; Winter v. Walker, 1 Wright 156 ; Aurand v. Schaffer and Wife, 7 Id. 363; Tripner v. Abrahams, 11 Id. 220; Baringer v. Stiver, 13 Id. 129; Flick v. Devries, 14 Id. 266; Hause v. Gilger, 2 P. F. Smith 412; Curry v. Bott, 3 Id. 400; Bower’s Appeal, 18 Id. 126. The signature of an attesting witness to a deed does not import a knowledge of its contents. The attesting witness simply vouches for the genuineness of the signature of the grantor, and no other inference can be drawn from it.
   Mr. Justice Woodward

delivered the opinion of the court, October 23d 1876.

When George Thompson procured the conveyance to be made by Wilson to Mrs. Thompson he owed no debts, and nothing appeared on the trial to show that he was about to enter into any hazardous business or to contract any fresh obligations. Doing no act indicating an intention to defraud creditors, it was competent for him to settle the land in controversy on his wife. And his right to do this was not affected by the bare fact that he borrowed $500 to pay on account of the purchase-money from William Thompson, the plaintiff below, at the time of the execution of the deed. In Williams v. Davis, 19 P. F. Smith 21, land subject to a purchase-money mortgage given by a husband had been conveyed to a wife. It was held that this was not such a debt as to render the conveyance void against subsequent creditors. The same point was ruled in Nippes’s Appeal, 25 P. F. Smith 472. In the last case it Avas said, that in the absence of proof of any fraudulent intention, the fact that the land conveyed was all the property the husband had, was immaterial. If the plaintiff lent his money with full knowledge that the deed had been executed to Mrs. Thompson, the land in her hands could not be made liable for the debt her husband had incurred in consequence of his subsequent inability to pay. The loan was to the husband, and if the plaintiff knew he had no title, it was upon his personal credit and not on .the credit of the property. On the other hand, if the money was lent in ignorance of the true nature of the transaction, and in the belief on the plaintiff’s part that the deed of Wilson and his wife had been made to George Thompson, he had the right to pursue the land. To permit the wife to hold it relieved from a claim for a portion still due and unpaid of the original purchase-money which the plaintiff had advanced under a mistake in regard to the ownership, would.’ be the sanction of a fraud.

On the trial the defendants alleged that the plaintiff was aware of all the facts. There was evidence that he was present when the deed'was executed. The contract to buy had been made in pursuance of his advice. George Thompson swore that he handed him the deed before it was signed, with a request that “he would look at it to see if it was all right.” And his name appears as a subscribing witness to its execution. The last three assignments of error raise in substance a single question. The court had been asked to instruct the jury, that if they should believe from the evidence that the plaintiff knew of the conveyance to Jane Thompson, and lent the money to George Thompson, then the plaintiff accepted George Thompson individually as his debtor, without reference to the property; that upon such facts he would be estopped; and that his signature as witness to the deed was some evidence of knowledge on his part. The instructions asked were refused, and a verdict in favor of the plaintiff was peremptorily directed. All these points should have received an affirmative answer. In French v. Mehan, 6 P. F. Smith 286, land had been conveyed in 1828 to a husband and wife as joint tenants. The grantor at the time held a bond against the husband for which a judgment had been recovered in 1832. Under that and other judgments the land had been sold in the husband’s lifetime. After the husband’s death the wife brought ejectment, and it was held that she was entitled to recover. Judge Williams, in charging the jury on the trial in the District Court, said: “It has not been shown that the husband, at the date of the purchase, owed any other debt than the one to Dickerson, the grantor of the land, and it can hardly be presumed or inferred that the deed was made to the wife for the purpose of hindering and delaying the grantor in the collection of the debt due by the husband. It seems to me that both he and the purchaser under the judgment obtained by him for such indebtedness, would and ought to be estopped from making any such allegation.” The judgment was affirmed'on the grounds stated by Judge Williams. The fact of knowledge was denied by the plaintiff. He said he first discovered that the deed had been made to Mrs. Thompson during the winter before the trial. The question-rested on the evidence of the witnesses, and could be settled legitimately only by a verdict. The court should have referred it to the. jury.

The first point of the defendant was properly refused. In the bond which was given by George Thompson on the 5th of July 1870, a balance of $187 remaining due on the note of 1866 for $500 was included. If the plaintiff remained in actual ignorance of the conveyance to Mrs. Thompson until 1875, he was not estopped from asserting his claim against the land by his acceptance of the bond.

Judgment reversed, and venire facias de novo awarded.


text:
    Darlington and Wife versus The United States.
    1. The United States has the right to take private property for public use under the power of eminent domain.
    2. The Act of Congress of 3d March 1873 provided that the secretary of the treasury should purchase at private sale, or, if necessary, by condemnation in pursuance of the statutes of Pennsylvania, a suitable piece of ground in Pittsburgh for the erection of a court house, &e.; the United States condemned three separate sites, and began proceedings to condemn a fourth, with a view of selecting one of the four: Held, that the proceedings for condemning the fourth site were not authorized by the act.
    3. An Act of Assembly passed for the purpose of carrying out this Act of Congress, provided that the United States might pay the costs and refuse to take the land, if in their judgment the compensation assessed was excessive: Held, that this could not be construed to justify proceedings to condemn an indefinite number of sites at once; and even if it did so, it was unconstitutional.
    4. A petition filed by the United States in pursuance of the above Act of Congress for condemnation of a site under the Act of Assembly of 19th February 1849, did not contain an averment that the United States had attempted first to agree upon a valuation with the property owners: Held, that the court below had no jurisdiction to appoint viewers.
    5. It appearing that the United States had not actually selected a site for its buildings, but was endeavoring to condemn four sites for the purpose of experimenting upon the different values: Held, that the proceedings to condemn a fourth site were irregular.
    October 9th 1876.
    Before Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Agnew,C. J., and Williams, J., absent.
    Error to the Common Pleas, No. 1, of Allegheny county; Of October and November Term 1876.
    In the court below this was a petition filed April 17th 1874, in the name of “ David Reed, Attorney of the United States,” for the appointment of viewers to appraise property selected as a site for United States government buildings.
    By an Act of Congress, approved March 3d 1873 (17 U. S. St. at Large 621), it was enacted that “ the secretary of the treasury be and he is hereby authorized and directed to purchase at private sale, or if necessary, by condemnation, in pursuance of the statutes of the state of Pennsylvania, a suitable piece of ground in the city of Pittsburgh, in the state of Pennsylvania, for the erection of a building to be used for a court-house, custom-house, post-office, United States marshal’s office and other government offices, the cost of the same not to exceed $300,000.
    “ Provided, That no money to be appropriated under this act shall be available until a valid title to such land is vested in the United States, nor until the state of Pennsylvania shall duly release and relinquish jurisdiction over the same, and exempt from taxation such property and the buildings to be hereafter erected thereon, while the same are in the possession of the United States.”
    In pursuance of this act, a petition was presented to the court, setting forth an Act of Assembly of 22d April 1873 (Pamph. L. 42), as follows:—
    “ Sect. 1. Be it enacted, &c., That the consent of the state of Pennsylvania is hereby given to the acquisition, by the United States, by purchase or by condemnation, in the same manner as land is now taken for public purposes under any general or special statute, for railroad or other purposes (and should the property which the government desires to acquire have been dedicated to a religious or charitable use, the proceeds of such property shall be invested and used to and for the same use and purpose to which the property taken was originally dedicated.or conveyed), of one or more pieces of land situated in the city of Pittsburgh, on which to erect a court-house, post-office and other government buildings and appurtenances, and the said United States shall have, hold, use, occupy and own the said land or lands when purchased, and exercise jurisdiction and control over the same, and every part thereof, subject to the restrictions hereinafter mentioned.
    “ Sect. 2. In case the United States shall decide to resort to condemnation in acquiring land for the purposes specified in the first section of this act, the said United States shall, in all respects, be governed by the laws of this state regulating the appropriation of private property for public use, and said laws are hereby made applicable: Provided, That the United States may pay the costs and refuse to take the land, if in their judgment the compensation assessed therefor is excessive.”
    The petition further averred that the United States had already made application for the condemnation of three several sites in the city of Pittsburgh, on one of which to erect a court-house, &c., and had made application for the condemnation of a separate and additional site to the three lots described in a former petition, viz.: a lot of ground bounded by Fourth avenue, Smithfield street, Third avenue and Cherry alley; and that the United States had decided to resort to condemnation in acquiring land for such purpose. The petition then prayed the court to appoint seven freeholders to estimate the value of the piece of property in question, and to report the same to the court. Viewers were appointed, who, on May 24th 1874, reported, among other things, that they had estimated damages for the taking and occupying of “ lot No. 7, owned by William Darlington, being 120 feet on Fourth avenue by 172 feet, with buildings thereon, at the sum of $89,000.” To this report Darlington filed the following exceptions:—
    “ 2. It does not appear, from the record of the proceedings in this case, that the viewers appointed were freeholders.
    “ 3. The petition does not aver and it does not appear that the petitioner, or the proper representative of the United States, or the United States could not agree with the owner of the property sought to he condemned for the damages likely to be done to or sustained by such owner by reason of the taking of their said property, or that any effort had been made to agree with said owner, or any of them, or that he or they were absent or legally incapacitated to enter into such an agreement.
    “ 4. These proceedings are unauthorized. There can be no condemnation of property until a site has been selected; and the petition shows that no site has been selected, but that proceedings were taken, prior to the presenting of the petition in this case, to condemn three other sites, being separate and distinct parcels of ground, which proceedings are not disposed of.
    “ 5. The legislature cannot delegate the right of eminent domain, as it has attempted to do in the act under which these proceedings are taken.”
    At the same time he appealed from the report.
    On the 17th of October 1874, the court, after argument, overruled the above exceptions of Darlington, and afterwards made an order that, as it appeared that the lot of ground in question belonged to Mary 0. Darlington, the wife of William M. Darling-ton, the above proceedings should be amended so that the damages that might be awarded should be to William M. Darlington and Mary O. his wife, in her right, and that the appeal entered and the exceptions filed should be for the benefit of William M. and Mary C. Darlington. To this order both Darlington and his wife excepted.
    The court, on October 24th 1874, ordered that the appeal taken by Darlington and his wife be put at issue, to determine the question of the value of the said premises. The jury found their value to be $107,000; upon which verdict judgment was entered. Darlington and his wife then took this writ of error and also a writ of certiorari, and assigned for error, among other things, that the court below erred in overruling the second, third, fourth and fifth exceptions to the petition and report of the viewers.

      D. T. Watson (with whom was J. W. Over), for Darlington and wife. —
    The petition was filed under the Act of 19th February 1840 (Pamph. L. 83), which requires that the petitioner should first endeavor to agree with the owner: Reitenbaugh v. Chester Valley Railroad Co., 9 Harris 104; O’Hara v. Penna. Railroad Co., 1 Casey 448. The right of eminent domain is in derogation of comInon-law rights, and the statute must be strictly followed: Lance’s Appeal, 5 P. F. Smith 26; Kensington v. Keith, 2 Barr 219; Cool. Const. Lim. 528. The Act of Congress only authorizes condemnation if necessary. Even apart from this statute, there could be no condemnation without an effort to buy at private sale, as in such case there would be no such necessity as would justify a resort to eminent domain. Necessity being the basis of the right of eminent domain (Lance’s Appeal, supra; Kohl v. U. S., Am. L. Reg. 1876), only the land actually required may be taken. Yet this is an attempted condemnation of a fourth site, when only one is needed.
    There ought first to have been a taking: O’Hara v. Penn. Railroad Co., supra; Neal v. P. & C. Railroad Co., 7 Casey 20. The proviso in the 2d section of the Act of 1873, supra, does not give the United States a roving commission to condemn any number of sites at once; at most it only gives the government a right to refuse to take a site after a fair selection and boná, fide proceedings for its condemnation. Even then it may be doubted whether it is constitutional : Weston v. City Council of Charleston, 2 Peters 464; Neal v. Penna. Railroad Co., supra.

    The state cannot delegate the right of eminent domain to the United States: Kohl v. United States, supra.

    The appeal was not a waiver of the exceptions. The Act of 19th February 1849 gives the right to file exceptions with the appeal; if the exceptions are overruled the appeal proceeds.

      H. H. McOormiek, United States District Attorney, and Gf. P. Hamilton, for the United States. —
    The appeal was a waiver of the exceptions: Royer v. Myers, 3 Harris 87; Lentz v. Stroh, 6 S. & R. 33; Del., Lack. & W. Railroad Co. v. Burson, 11 P. F. Smith 369; Church v. N. C. Railroad Co., 9 Wright 339; Hays v. Risher, 8 Casey 169. A writ of error only brings up the trial in the court below.
    The United States has an original and inherent right of eminent domain (Kohl v. United States, supra), and superior to the Act of 1849, supra. Under the Act of Congress of 1873, the United States had a right to elect to proceed by purchase or by condemnation. Reitenbaugh v. Railroad Co., supra, was decided when there was no appeal from the viewers; and in that case the land owner had no notice of the appointment of viewers. So in O’Hara v. Penna. Railroad Co., supra. In the case at bar the plaintiffs were present before the viewers. The proceedings against the other three sites were experimental and not final; they did not divest title.
    As to the seventh assignment, the. United States possess the power independently of the state; legislation was only necessary to transfer jurisdiction and exemption from taxation. A state has a right to condemn land for the United States: Gilmer v. Lime Point, 18 Cal. 229; Burt v. Merch. Ins. Co., 106 Mass. 356. The United States has a right to condemn land by proceedings either in its own or in the state courts: Kohl v. United States, supra.

   Mr. Justice Paxson

delivered the opinion of the court, October 23d 1876.

The right of the United States to take private property for public use is too well settled to be now disputed. Of the numerous cases upon this subject it is sufficient to refer to Kohl v. The United States, which is believed to' be the last, and will be found reported in the American Law Register for September 1876. The opinion of the court was delivered by Mr. Justice Strong, who said: “ The right of eminent domain is inherent in all governments by virtue of their sovereignty. For all purposes- required by the constitution this right exists in the United States independently of any consent of the state in which the property lies.” The right itself arises from necessity, of which necessity the sovereignty taking the property must be the judge, and is qualified only by the duty of making compensation to the owner. We are in no doubt, therefore, as to the right of the United States to take and condemn a site for public buildings in the city of Pittsburgh, under and by virtue of the Act of Congress approved March 3d 1873, entitled “An Act to purchase a site for public buildings in Pittsburgh.”' Said act provides, “that the secretary of the treasury be arid he is hereby directed to purchase at private sale, or if necessary by condemnation, in pursuance of the statutes of the state of Pennsylvania, a suitable piece of ground in the city of Pittsburgh, in the state of Pennsylvania, for the erection of a building to be used for a courthouse, coustom-house, post-office, United States marshal’s office and other government offices, the cost of the same not to exceed three hundred thousand dollars.” Here the power to take is expressly conferred, and the mode designated by which the owner or owners may receive compensation. The condemnation in case of a failure to purchase shall be “in pursuance of the statutes of the state of Pennsylvania.” The proviso in said act, that the state shall release and relinquish jurisdiction over the same, is fully met by the Act of Assembly of April 2d 1873 (Pamph. L. 42). We therefore think it was competent for the United States authorities to proceed under said Act of Congress to purchase, or condemn, if necessary, a site for public buildings in the city of Pittsburgh. Have they proceeded to do so according to law ? Without entering into a tedious recital of the facts it is sufficient to say, that it appears from the record in this case that proceedings have- been commenced to condemn four different sites, with a view of selecting one out of the four. There is no warrant for this in the Act of Congress. It authorizes the selection .of one site, but it does not create a roving commission to experiment upon the values of different sites. It is said, however, that this action can be sustained under the second section of the Act of Assembly referred to, which provides, “ that the United States may pay the costs and refuse to take the land, if in their judgment the compensation assessed therefor is excessive.” The most that can be claimed for this section is, that in case the United States should select a site, and the damages assessed should be found excessive, and no terms could be made with the owner, the United States might pay the costs, abandon the proceedings and then proceed to condemn another site.. It could not be held to justify proceedings against an indefinite number of sites at the same time, and thus chaffering with the respective owners for the lowest price. And if such construction could be successfully claimed for it the answer is that the legislature has no such power. The state may take the property of a citizen for public use by virtue of its right of eminent domain, but it cannot take it for the benefit of another sovereignty, for the use of the citizens of 'the latter, nor can it delegate its right of eminent domain to another sovereignty for such purpose. I am aware that it has been held otherwise in Gilmer v. Lime Point, 18 Cal. 229, and in Burt v. The Merchants’ Insurance Co., 106 Mass. 356. But a different doctrine was asserted in Trombly v. Humphrey, 25 Mich. 471. In that case, speaking of the exercise of the power by the state for the United States, the court says: “ For the one to enter the sphere of the other and supply its officers and machinery in the exercise of its eminent domain for the benefit of the other, would not only be as much without warrant, but also as much a work of supererogation as for the United States to exercise the like authority and employ the like agencies for a foreign country.” Again, The eminent domain in any sovereignty exists only for its own purposes; and to furnish machinery to the general government under and. by means of which it is to appropriate land for national objects is not among the ends contemplated in the creation of the state governments.” The foundation of the right of eminent domain is necessity. The reason utterly fails when .one sovereignty proceeds to take land for the use of another sovereignty. This seems to be the view taken by the Supreme Court of the United States in Kohl v. The United States, supra. Says Justice Strong : The proper view of the right of eminent domain seems to be, that it is a right belonging to a sovereignty to take private property for its own public uses, and not for those of another.’ Beyond this there exists no necessity which alone is the foundation of the right.” It is not a sufficient answer to this to say that the public, buildings proposed to be erected áre for the accommodation of our own citizens. That is a secondary object. The primary object is the accommodation of the business of the United States government, and the convenience and comfort of its officials. The citizens of this state have no rights in said buildings not common to all other citizens of the United States, nor have they any control over them.

These proceedings are radically defective for other reasons. The petition was evidently presented under the Act of Assembly of February 19th 1849, Pamph. L. 83, entitled “ An act regulating railroad companies,” and its supplements. I am not aware of any other act under which such proceedings could be instituted. The petitioners are bound by the terms of the act under which they proceeded. The eleventh section of said act provides that “ when the said company (railroad company) cannot agree with the owner or owners of any land or materials for the compensation proper for the damages doné, or likely to be done, or sustained by any such owner or owners of such land, *' * * or by reason of the absence or legal incapacity of any such owner or owners no such compensation can be agreed upon, the Court of Common Pleas of the proper county, on application thereto by petition,” may appoint viewers. In Reitenbaugh v. Chester Valley Railroad Company, 9 Harris 104, which was a case arising under this act, it was said by Woodward, J., in delivering the opinion of the court, that “ when a railroad company is about to appropriate the property of individuals, they are required by the Act of Assembly of 19th of February 1849, entitled £ An act regulating railroad companies,’ to apply to the owner of the property wanted, and endeavor to agree with him on the compensation, unless the owner be absent or légally incapacitated. Nor have they a right to petition the court for viewers until' such effort has been made; and when they do petition they should set forth the names of the owners whose property is desired, the fact that they cannot" agree on the compensation, or that the owner is absent or legally incapacitated to contract, and verify their statement by the affidavit of some person having knowledge of the facts.” To the same point is O’Hara v. The Penna. Railroad Co., 1 Casey 448. The petition filed in this case lacks all these essential pre-requisites. There was no averment that any attempt had been made to agree with the property owners. Nor is any reason given why no such attempt had been made. It was therefore error in the court below to appoint the viewers. There was no jurisdiction.

Again, in proceedings under the Act of 1849, there must be a taking, Here'there was none. There was experiment and chaffering; nothing more. A railroad company must locate its road, mark and survey the land before they can petition for a jury, and such facts must be set forth in the petition and verified by affidavit: O’Hara v. The Railroad, supra; Neal v. Pittsburgh & Connellsville Railroad Co., 7 Casey 19.

More might be said. What has been said is sufficient. A proceeding of this nature is out of the course of the common law, and every requirement of the statute under which it is taken must be complied with: Lance’s Appeal, 5 P. F. Smith 26; Dillon on Municipal Corporations, §§ 469, 470; Dwarris on Statutes 224. These proceedings are irregular from their inception.

The judgment entered, in this case, and all proceedings subsequent to the filing of the petition, so far as they relate to the plaintiffs in error, are reversed and set aside.