author: Mr. Justice Merche,

text:
    Connolly versus Miller et al.
    1. In the case of a conditional verdict in ejectment a writ of habere facias possessionem, is not, of course, as in ordinary cases of judgment in ejectment, "but can only be issued by leave of court, and the party asking for the same must show to the satisfaction of the court that he is justly entitled to it.
    2. In ejectment to compel payment of purchase-money the court has the power to extend the time of payment as made by a conditional verdict, and to supply just and reasonable conditions omitted in the verdict.
    October 25th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Somerset county: Of October and November Term 1880, No. 207.
    Ejectment by Sarah Connolly, executrix of Martin Connolly, deceased, against Jacob D. Miller, Jacob P. Lichty and others, for a tract of land in Somerset county.
    The facts set forth in the opinion of this court and the following assignments of error sufficiently state the case.

      The verdict was for defendants, when plaintiff took this writ and alleged that the court erred :—
    1. In discharging the rule and refusing the writ of habere facias possessionem on 15th December 1879.
    2. In decreeing that the money paid into court by Jacob P. Lichty, one of the defendants, should remain in court until a deed be filed by the plaintiff to John D. Roddy for the land described in the writ, and the money not to be taken out of court until the defendants are satisfied with the deed, unless the court order it to be paid to the plaintiff. And in further ordering and directing that, upon the payment of the money to the plaintiff; the said Jacob P. Lichty be subrogated to all the right, title, interest and privileges of the plaintiff, for the purpose of adjusting the equities between the several .defendants.
    3. In discharging the rule and refusing the writ of habere facias possessionem on 17th July 1880.

      J. G. Ogle and Robb & McClung, for plaintiffs in error.
    Plaintiff was entitled to a verdict, defendants having failed to comply with the terms of the conditional verdict: Act of April 21st 1846, Pamph. L. 424; 1 Purd. Dig. 535, pl. 18. The essentials of the verdict were time and money, and the failure to bring the money within the time fixed rescinded the contract and rendered the judgment absolute: Gable v. Hain, 1 P. & W. 264.
    If plaintiff did, by reason of her application to the Orphans’ Court of Allegheny county, waive her right to insist upon a strict forfeiture, and plaintiff and defendants thereby remained in the same position as before the first instalment was due, that position continued only until the second instalment of the verdict was due, to wit, until the 13th day of October 1879. Defendants then made default, and by reason thereof their equity was extinguished; the plaintiff was no longer a creditor: Boyd v. McNaughton, 1 P. F. Smith 225. The terms of the verdict did not make it obligatory upon plaintiff to file a deed. The title, agreeably to the laws and customs of the state, remained in the plaintiff as a security for the payment of the unpaid instalments: Hamm et al. v. Beaver, 1 Grant 448.
    The law governing this case is clearly laid down in Hewitt v. Huling, 1 Jones 34. There was no payment or tender of payment made, but default was made, and thereby the relative positions of plaintiff and defendants were changed. Plaintiff became entitled to the fruits of her judgment; this could be had only by execution, and the only writ of execution known to the law in cases of this kind is habere facias possessionem. This writ the court denied plaintiff on two different occasions, and decreed her rights in the premises to Lichty.

      January 3d 1881.

      Valentine Say and Coffroth & Raphel, for defendants in error.
    —No deed was ever tendered or filed as it should have been: Markley v. Swartzlander, 8 W. & S. 176 ; Lauer v. Lee, 6 Wright 165 ; Webster v. Webster, 8 P. F. Smith 164 ; Hawk v. Greensweig, 2 Barr 299; Boyd v. McNaughton, 1 P. F. Smith 227. Plaintiff waived her right to a writ of habere facias possessionem : Boyd v. McNaughton, supra; Hatton v. Johnson, 2 Norris 222. The application for the writ was premature, and the granting or refusing it in this case was in the sound discretion of the court: Creigh v. Shatto, 9 W. & S. 82.
    There may be cases in which equity may require an enlargement of the time: Creigh v. Shatto, supra. There was no forfeiture here, therefore, by reason of the non-payment of the money to the plaintiffs, for the judge modified the performance by the defendant, as he might do, in order more effectually to do equity: Webster v. Webster, 3 P. F. Smith 164; Napier v. Darlington, 20 Id. 65; Gordonier v. Billings, 27 Id. 501.
   Mr. Justice Merche,

delivered the opinion of the court,

The first and third assignments are to the refusal of the court to order a writ of habere faeias possessionem, to issue. In case of a conditional verdict the writ is not of course as in ordinary cases of judgment in ejectment, but can only be issued by leave of the court: Shaw v. Bayard et al., 4 Barr 257. In other words, the party asking for the writ must show to the satisfaction of the court that he is justly entitled to it. Whether there was error in refusing it in the present case depends on whether the court was justified in making the order covered by the second assignment.

The action was on the legal title to enforce the payment of the residue of purchase-money due on articles of agreement which called for a deed of general warranty. A verdict was rendered on 13th February 1879 in favor of the. plaintiff for the land, to be released on payment of $2975.33, to be paid in three equal payments in four, eight and twelve months, with interest. On the same day a rule was granted to show cause why a new trial should not be granted. This was continued until the 30th May following when it was made absolute, unless the plaintiff remitted $1100, as of the date of the verdict, by paper filed within thirty days. On the 9th of June, so far as appears, without notice to the defendant, the plaintiff filed a writing remitting the sum specified. The jury fee was not paid until the 25th August, when judgment was entered on the verdict. On the same day application was made for a writ of habere facias and a rule granted to show cause why it should not issue. On the 17th December answer was filed and the money, $2007.73, paid into court, and the rule discharged. It was thereupon ordered that the money remain in court until a deed to the assignee of the defendant for the land described in the writ be filed, and the money should not be taken out until deed was made satisfactory to the defendant, unless the court ordered it paid to plaintiff. On the 29th March plaintiff renewed the application for a writ of habere facias, and it was again refused.

It is contended by the plaintiff in error that the court had no power to extend the time of payment of any instalment, nor add to the conditional verdict of the jury.

This action is in the nature of a bill in equity to compel payment of purchase-money. In a court of equity before decree the title is referred to a master, and if found incurably defective, it is a full answer to the bill. A purchaser will not be compelled to accept a doubtful title nor inequitable terms.

It is further contended that time is of the essence of the verdict, and becomes a material part of the judgment. As a general rule this is undoubtedly true where all the questions have been passed upon, and the verdict is in such form as to receive the approval of the court. A judgment on a conditional verdict so far partakes of equitable principles that this court has often, on writ of error, extended the time of payment to prevent the injustice which would arise from an absolute affirm anee of the judgment. The propriety of this applies w;ith especial force when the unpaid purchase-money is very much less than the value of the land: Creigh v. Shatto, 9 W. & S. 82. In the present case the original purchase-money was $5000, and only about $2000 thereof remained unpaid. The power of the Court of Common Pleas in other cases of ejectment to extend the time fixed by the jury for the payment of money has also been recognised. Thus in an action of ejectment on the legal title for lands, against one who had purchased it as unseated, gone into possession and made improvements, the jury rendered a verdict on the 30th April and assessed the value of the defendant’s improvements at $1897.58, to be paid within three months. In consequence of the pendency of a motion for a new trial judgment was not entered until the 3d of September following. On that day the court ordered the time of payment to be extended for one month from t-hat date. Thus the jury found the money should be paid on the 30th July, but the court ordered that it might be paid on the 3d of October thereafter. On writ of error that extension of time was assigned for error. This court affirmed the judgment more than a year thereafter, and further extended the time of payment two months beyond the affirmation: Pendleton v. Richey, 8 Casey 58. In the opinion it is said to resemble an action in ejectment for purchase-money, and as the power of the jury in both classes of cases is conferred by statute the practice may properly be assimilated. The power of the court to extend the time of payment, when equity required it, was again affirmed in Webster v. Webster, 3 P. F. Smith 161. It was an action of ejectment on the legal title to enforce payment of the purchase-money remaining unpaid on a contract. On the 19th December the jury rendered a verdict for the plaintiff to be released on payment of a sum specified in thirty days. On the 2d January the judge at chambers gave leave to the defendant to pay the money into court, to be taken out by the plaintiffs on their filing a deed. On the 12th March, by reason of the money not haying been paid to the plaintiffs within the time specified in the. verdict, they issued a writ of habere facias, which was set aside by. the court. The ease was reviewed on writ of error, and all the proceedings subsequent to the judgment were affirmed. It was held to be within the power of the judge acting as a chancellor to make the order he did for the payment of the money into court, to await the making of the deed by the proper parties, and that the time limited by the verdict within which it declares the money shall be paid does not always absolutely control. It was there said it was not obligatory on the defendant to pay his money to the plaintiffs, and run the risk of ever getting his deed.

We have thus shown the court has power, in a proper case, to extend the time of payment, and to supply just and reasonable conditions omitted in the verdict. It is a power to be exercised with care, and only when equity demands it for the protection of the party required to pay the money. In this case there certainly was no equity in the plaintiff demanding a payment of the money while she was unable or unwilling to execute a deed according to the contract. It is shown that she did not obtain authority from the Orphans’ Court to execute one until the 19th August. Hence at the time specified for the payment of the first instalment she was not able to make it; but she might have done so when the second became due. Nevertheless then, and at all times since, she has omitted and declined to execute any deed.

In addition to the motion for a new trial and the delay in entering judgment, other equities of the defendants are shown. Thus the unpaid purchase-money is small compared with the value of the land. The answ’er of Lichty, the principal defendant in interest in the ease, shows he was living out of the state when the verdict was rendered, and he was not informed of the sum adjudged to be due, nor when it was to be paid, until October or November following. With his answer he paid into court the debt, interest and costs of the judgment. In view of the whole case, notwithstanding the able argument of the counsel for the plaintiff, we discover no such error in the recognition and application of equitable principles as to justify a reversal of the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Lloyd’s Appeal.
    1. Although a party may, by express contract, waive his right of set-off, and such a contract, founded upon a consideration, would be binding upon him, yet he can be deprived of that right by nothing less than a contract. Feed v. Penrose’s Executrix, 12 Oasey 234, followed.
    2. A. having become indebted to his employer, B., settled an account and gave B. a judgment-note for the amount of the indebtedness, and remained for eight months afterwards in B.’s employ. He then quit the employment, but shortly thereafter resumed work under an agreement that he was to be paid his wages as fast as he earned them, without regard to any claim which B. had against him. B. died subsequently, and in the distribution of his estate A. claimed and was allowed his wages from the date of the note: Held, that this was error ; that any portion of the wages unpaid during the eight months, in the absence of any express contract to the contrary, should have been applied to the judgment.
    October 25th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Cambria county: Of October and November Term 1880, No. 126.
    Appeal of Harriet P. Lloyd, widow, and others, administrators of Thomas J. Lloyd, deceased, from the decree of the court confirming the report of the auditor appointed to distribute the funds in the hands of said administrators.
    Thomas J. Lloyd, the decedent, was a lumber merchant, and carried on this business for many years previous to his death, on the 6th of March 1878. For about six years previously he had D. H. Kinkead in his employment as clerk and superintendent, who, as such, had authority to receive and pay out money. On the 14th September 1875, the parties made a settlement, and Kinkead was found to be indebted to Mr. Lloyd in the sum of $1286.85, for money of his employer retained by the appellee in excess of his salary to that daté.
    For this amount Kinkead gave to the decedent his judgment note, bearing date the day of the settlement (September 14th 1875), and payable one day after date: on which note judgment was entered in the Common Pleas of Cambria county on the 8th of June 1876. Kinkead continued in the employment of decedent until on or about the 22d of May 1876. At this time, and without previous notice, he left the service of the decedent. Two or three days afterwards he returned to the office of his former employer, when the parties entered into a parol agreement that Kinkead should resume his services at a salary of $1200 per annum, which was to be paid to him-as fast as earned.
    At the time he resumed his service (24th or 25th of May 1876), he was indebted to the decedent the amount of the note previously mentioned, ........ $1286.85
    Interest September 15th 1875, .... 53.61
    $1340.46

      November 8th 1880.
    The appellants contended before the auditor that the salary earned by Kinkead from the time of settlement (September 14th 1875) to the 22d of May 1876, the time he left, and before the parol bargain was made, less the payments made on account, should be applied as a set off or credit on the judgment; that the contract of the 24th or 25th of May 1876, that the salary of the appellee should be paid as he earned it wras entirely prospective. Kinkead contended that this agreement was also retrospective in its terms.
    The auditor found that the parol contract was retrospective and awarded to the appellee the whole of his salary, deducting payments made on account; to which report the appellants excepted, and the exceptions being overruled and the report confirmed absolutely, this appeal was taken therefrom.

      George M. Reads, for appellants.
    The finding of the auditor and the confirmation of his report by the court, deprived the estate of the decedent of the right of set-off, to the extent of the unpaid salary from the 15th September 1875 to the 24th or 25th May 1876, without consideration, and the decree was, therefore, clearly erroneous : Rhoads v. Frederick, 8 Watts 448, 450 ; Case v. Cushman, 1 Barr 241, 246; Snyder v. Liebengood, 4 Barr 305; Davis v. McGrath, 10 Id. 170, 172; Fisher v. Seltzer, 11 Harris 308.

      F. A. Shoemaker and John P. Linton, for appellee. —
    The deceased could “waive his right to set’off or defalcate the indebtedness to him” of Kinkead against the said Kinkead’s demand for the wages of his labor, and such an agreement is binding and can be enforced: Louden v. Tiffany, 5 W. & S. 367; Henniss v. Page, 8 Whart. 275; Reed v. Penrose, 12 Casey 214. That he made such an agreement, thus to waive his right of set-off, is found by the auditor as a fact from the evidence.
    While the auditor has found as a fact that the agreement made by Thomas J. Lloyd, the decedent, was retroactive, the appellee could have maintained his right to the fund allowed him, even if the agreement had been merely prospective. In the absence of any specific appropriation by the parties, the amount paid by Thomas J. Lloyd to the appellee, and charged against the latter on the books of the former, would be by the law appropriated “ in discharge of the earliest liabilities of a running account:” Speck v. Commonwealth, 3 W. & S. 328 ; Berghaus v. Alter, 9 Watts 394; Peirce et al. v. Sweet, 9 Casey 157.
   Mr. Justice Gordon

delivered the opinion of the court,

If the contract made betweqn- Thomas J. Lloyd and D. H. Kinkead, the appellee, on or about the 24th of May 1876, was in its terms retrospective, that fact must have been established by some evidence not now exhibited to us. We have examined the testimony as it is found in the record before us with some care, and by it a condition of things about as follows appears : Kinkead was in the employment of Lloyd altogether about one year, commencing on the 15th of September 1875. On the 22d of May following, Kinkead, having for some reason become dissatisfied, abandoned that employment. Soon after this, the agreement, which forms the subject of the present controversy, was made. Its terms are detailed by two witnesses, Thomas Davis and John Gr. Bearer. The first of these says that Lloyd asked him to see Kinkead and induce him, if he could, to return to his employment, and, in the language of the witness, “He said that if he came back, he would pay him the money as he earned it, without regard to any claim he had against him; that he could have it whenever he wanted it, that he did not want Harry to work for him and credit it on anything.” The witness further says that he communicated this to Kinkead, and advised him to return, and that he did go back and remain with Lloyd for a short time. Bearer, the second of the above named witnesses, says he1 heard a conversation which occurred between these parties, and narrates it thus : “ Harry said he wished his money as he earned it, or he couldn’t live. They were talking about Harry’s indebtedness at that time, and Tom and he agreed he wouldn’t take his wages on that. I don’t remember that he said he would give him enough to live on and not credit it on his indebtedness. Harry was to go into the yard and work as he was working before. I heard nothing of that (that he would never collect Harry’s indebtedness of him). That was the particular bargain, that he was to have his wages as fast as he earned them; nothing was said about how often he was to be paid — that was the big trouble between them; it was to be paid just as he earned it. I can’t say how long Harry remained after that. I think it was in May or June this conversation took place.”

This, then, was the bargain between these parties, and we say with Mr. Justice Strong, in Reed v. Penrose’s Executrix, 12 Casey 234, that though a party may, by express contract, waive his right of set-off, and such a contract, founded upon a consideration, would be binding upon him, yet he can be deprived of that right by nothing less than a contract. But the contract in the present case was wholly prospective. Kinkead was to return to his employment with Lloyd, and was to have his wages as he earned them without set-off on his indebtedness to Lloyd. In all the testimony there is not so much as a hint that this contract was intended to affect Lloyd’s right of set-off as to the wages which had been previously earned. Indeed, the principal object at which Kinkead aimed, so far as we can see, was to prevent in the future what had occurred in the past, the application of his wages, or any part of them, to the judgment of his employer. This ho accomplished by the bargain which was made; he returned to his former position, and now, if he gets what he contracted for, he should be content. *

He was entitled to his wages in full, less the payments made upon them from the time he returned to Lloyd’s employment in May 1876, until September 26th of the same year., but from September 15th 1875, to the 22d of the succeeding May, any of his wages remaining due and unpaid, are properly applicable to the Lloyd judgment.

The decree of the court below is now reversed and set aside at the costs of the appellee, and it is ordered that redistribution be had in accordance with the above opinion.


author: Mr. Justice Trunkey

text:
    Detrick versus Sharrar.
    1. To take a parol sale of land out of the operation of the Statute of ikauds, the vendee must take actual, open, notorious and exclusive possession of the premises in pursuance of the contract, and make such improvements thereon as cannot be compensated in damages.
    2. Where a demurrer to a bill in equity is sustained it is simply a decision that the complainant has not set out a case which entitles him to relief and not a decision upon the merits, and hence it cannot be put in evidence in a subsequeut proceeding on the same cause of action to bar the complainant’s right to relief or recovery.
    October 22d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1880, No. 71.
    Ejectment by John, William, Samuel and Ebenezer Sharrar, heirs of Jacob Sharrar, deceased, against William, Levi, Elias, Martin and Jeremiah Detrick, heirs of Jacob Detrick, deceased, to recover a tract of land. The suit was brought February 20th 1878.
    At the trial the plaintiffs claimed title as follows : Jacob Sharrar, who was the son-in-law of Jacob Detrick, on August 23d 1853, entered into articles of agreement for the purchase of certain land, of which that in controversy is a part, and gave the vendors $14 in cash, and a bond wherein Jacob Detrick was surety, for the balance of the purchase-money. Sharrar immediately entered into possession of the land, and remained in possession until his death on May 25th 1857. Plaintiffs further showed that Sharrar died intestate, and that they were his heirs. They then gave evidence to show that Detrick, on April 21st 1869, paid the residue of the purchase-money and obtained from the vendors á conveyance of the land to him, and that afterwards Detriek sold thereof, to various parties, to an amount sufficient to reimburse him. This action of'ejectment was to recover the portion remaining unsold.
    Defendants gave evidence to show that Detrick took possession of the land after Sharrar’s death, and that he had improved it and remained in possession thereof until his death in 1876, since which time defendants have been seised of the same. Elizabeth Fox also testified that Jacob Sharrar, in his last illness, about five weeks before his death, told Detrick “ to take the land and do the best he could, for he (Sharrar) could not pay for it; if he (Detrick) would pay for it it was his, and to try and raise his (Sharrar’s) children.” They further showed that Detrick had assisted in maintaining Sharrar’s children, and that upon one occasion when he was endeavoring to borrow money to pay for the land, he had asserted that “ he wanted to pay off the land and to save the balance, while he could, for Sharrar’s children,” and when he sold part of the land had said, “ he had a right to sell it for Sharrár ; that Sharrar had requested him to sell it before he died — to sell part of the land and to save part of it for the children — and he was going to do so.”
    Defendants then offered in evidence the record of a suit in equity to April Term 1877, whereby it appeared that the plaintiffs in this suit, with others, were complainants, and the defendants, with others, defendants, in a bill in equity, which averred that Detrick had entered into a verbal agreement with Sharrar in his lifetime, wherein he had agreed to take care of theJand in dispute, and after selling so much as would reimburse him for the purchase-money paid to retain the use of the land for the family of Sharrar, and that in pursuance of this agreement Detrick had taken possession of the land after the death of Sharrar; had secured a conveyance of the title to himself, and reimbursed himself from the sales of land, and, therefore praying for a conveyance of the balance of said tract to the complainants, the heirs of Sharrar, and for an account, &c. It appeared, also, that defendants had demurred to the bill for a misjoinder of parties, because complainants had an adequate remedy at law, because the alleged trust was barred, by the Statute of Limitations ; that as to the account prayed for complainants were barred by said statute, and because the court had not jurisdiction in the premises. The record also showed that the demurrer .had been sustained by the court and the bill dismissed. This record was offered to show that the matter in controversy had been previously adjudicated by the court. The plaintiffs objected to the admission of this record and the court excluded it.
    The following were among the points of the defendants with the answers of the court:
    1. If the jury find from the evidence that Jacob Detrick, the ancestor of defendants, entered into a parol agreement with Jacob Sharrar for the purchase of his equitable interest in the lands in question, acquired by Sharrar under his article of agreement with Derickson & Henderson, whereby Sharrar sold to Detrick his interest in said lands under said contract, and that Detrick shortly thereafter and under and in pursuance of such parol agreement or understanding, entered into the possession of the said premises, and' made valuable improvements thereon, and continued thereafter in possession and occupancy thereof under a claim of title derived from Sharrar, such parol sale of his, Sharrar’s, interest in said contract, is not within the Statute of Frauds, and the verdict should be for the defendants.
    Ans. “ This point is affirmed as explained in the charge as to what constitutes a valid title under .the Statute of Frauds. ”
    3. If the jury should find from the evidence, as claimed by the plaintiffs, that Jacob Detrick took the title to said lands by parol, subject to a parol agreement on his part “ that he should hold the lands in trust for the children of Jacob Sharrar,” that such.agreement having been made more than five years prior to the bringing of this action, the plaintiffs are not entitled to recover under it.
    Ans. “ This point is affirmed if you further find the parol contract established under the instructions as to what constitutes a valid parol agreement.”
    The court, Taylor, P. J., inter alia, charged:
    “ If Detriek did not enter in pursuance of this parol contract, then the contract would not be good; it would be void, for the reason that possession must be taken in pursuance of a parol contract, and if Detrick was in possession before that time, he did not take possession in pursuance of the contract, and the contract is void under the Statute of Frauds and Perjuries. So that so far as the possession of this land is concerned, if Jacob Sharrar was in possession of it five weeks prior to his death, and Detrick did not take possession in pursuance of this parol contract, then the contract is void. * * * And did Detriek take possession of this land in pursuance of a contract? Did he take an actual, open, notorious and exclusive possession of that land in pursuance of that contract ? How is the evidence ? It is for you. There must, be still another thing to make a valid contract. There must be valuable improvements made upon the land, and these improvements must be of such value that they could not readily be compensated in damages. How is that? Have you any evidence before you of the value of the improvements made upon this land by Detrick? The evidence, as we understand it, is, that there has been some clearing — how much, has been left uncertain, so far as we remember the testimony. We do not remember how much land has been cleared. One of the boys built a house upon the land, but the value of it has not been given. Could not all the improvements upon this land be compensated in damages ? If so, the Statute of Frauds says it is void. We are left entirely in the dark as to the improvements so far as my recollection goes, but that is for you. If the improvements are so valuable that they could not be compensated it is fair to presume that it could be proven. Now so much for the parol contract. If these matters are not as stated, this parol contract so far as it is concerned, would be void under the Statute of Frauds and Perjuries, and the defendants would take no title to this land.”
    November 8th 1880.
    Verdict for plaintiffs, and after judgment thereon defendant took this writ and alleged that the court erred in rejecting the offer of the record of the equity suit, in their answers to the above points, and in the foregoing portions of the charge.

      John MeKissick and J. H. Osmer, for plaintiffs in error.
    The court erred in their instruction as to what was necessary to take a parol sale out of the Statute of Frauds. In this case we have the full measure of what is required to take a case out of the statute, to wit, delivery of possession, payment of the full purchase-money and valuable improvements: Milliken v. Dravo, 17 P. F. Smith 230. The equity proceeding was an adjudication of the same cause of action and a bar to plaintiffs’ claim.

      C. Hasbrouck and McCalmont & Osborne, for defendants in error.
    The charge of the court in relation to the parol sale is fully sustained by the authorities. A judgment or decree is not an estoppel unless it was decided on the merits : Keller v. Commonwealth, 1 Am. Law Jour. 156 ; Fleming v. Ins. Co., 2 Jones 391; Greenl. on Ev., 13 ed., vol. 1, p. 572, sect. 530 ; Whart. on Ev., vol. 2, p. 782; Doe v. Oliver, Duchess of Kingston, 2 Sm. Lead. Cas., 6th ed., p. 789, 808 and 809, marginal pages 677 and 673.
   Mr. Justice Trunkey

delivered the opinion of the court,

In 1853 Jacob Sharrar bought .the land by articles of agreement, paid a small portion of the purchase-money, gave his bond with Jacob Detrick as surety for the balance, took and kept possession till his death in 1857. With full knowledge of Sharrar’s equitable title, Jacob Detrick paid the balance of purchase-money and took deed to himself dated April 21st 1869. . Being liable as surety, it was reasonable that he should so pay and take the title. Soon after Sharrar’s death, Detrick took possession and -used the land as his own until 1876, when he died.

After taking the deed Detrick stood in the place of the vendors who sold to Sharrar, and on its face and the written contract he was bound to convey on payment to him of the purchase-money : Donovan v. Driscoll, 12 Norris 509. He knew he took only the legal title. His rights were those of a vendor who had peaceably got possession from his vendee; and on performance by the vendee of his part of the agreement, he would be entitled to recover possession. The plaintiffs, as heirs of Sharrar, are invested with such title as he had; and the defendants, devisees of Detrick, hold his title, but in no sense are innocent purchasers. As the cause was tried, there is no question but Detrick had fully reimbursed himself for the purchase-money by sales of land not embraced in the suit, but a part of that in his deed.

The first ground of defence is, a parol sale by Sharrar to Detrick. What is the actual proof of an oral contract? Mrs. Fox testifies, that about five weeks before Sharrar’s death, he “ told Detrick to take the land and do the best he could, for he could not pay for it; if he would pay for it, it was his, and to try and raise the children.” That is all. Detrick did not reply. His conversation with his neighbors after the death of his son-in-law does not indicate that he had purchased from Sharrar; but those conversations, as proved, cast scarcely any light on the question. His possession, cultivation and improvements for a long time make little as against his young grandchildren. This is not a case for relaxing the strictness of proof of the alleged oral contract because of the lapse of time. As applied to the testimony, we find no error in the instructions of the court in answer to defendants’ first point.

The parol contract set up not being established by the verdict, no question arises under the Act of 1856. Hence, the second specification of error requires no remark.

The second ground of defence is, former recovery; and it is urged that error was committed in rejecting the record in case of Sharrar and others against Detrick and others, in equity. That record shows that the bill relates to the same subject of this suit, but as it did not set out a case entitling the plaintiffs to relief, the defendants demurred. Among the causes for demurrer were misjoinder of parties, full and adequate remedy at law, bar of the Statutes of Limitations to part of the claim, and want of jurisdiction to another part. The judgment is, that said demurrer be and is sustained, and the said bill be'dismissed with the costs to be paid by the plaintiffs.” Is this decree a dismissal of the bill upon its merits ? If so, by all authority, it is conclusive between the same parties upon the same matter directly in question in another court.

It has been stated, as a general rule, decision in favor the defendant on a demurrer at law or to a bill in equity, is simply a decision that the plaintiff has not set forth a case entitling him relief or compensation. It does not, and in the nature of things, cannot determine that he has no case, and shall not have- relief a subsequent proceeding on grounds different from those disclosed in the first. Several persons joined in a petition which was dismissed on demurrer, the judgment being that the’ demurrer be sustained, the petition dismissed, and that defendant recover his costs. Afterwards, one of the same plaintiffs filed a petition for the same subject-matter valid and sufficient to entitle her to relief. The former recovery was set up as a bar. But the court said: “ That judgment merely pronounced the former petition insufficient. It decided that the case as presented by that petition was without merit, and to that, extent only can it be said to have been a decision upon the merits. But the facts set out in the subsequent case have never been litigated or passed upon in any way, and it is therefore illogical and an abuse of'terms to say that the judgment relied upon is a judgment upon the merits of the present case, and for that reason must operate as a bar to any relief:” Birch v. Funk, 2 Met. (Ky.) 544. A judgment sustaining a demurrer to a petition for want of form- and of proper parties merely decides that the suit cannot be sustained in that form against these parties, and it is not' a bar to another suit for the same cause of action: Nickelson v. Ingram, 24 Tex. 630. When it appears ’ that the bill was dismissed on the hearing of the case, it is to be inferred that it was upon the merits; but when not upon the hearing, if the record does not show, and it is not proved that dismission was upon the merits, there is no bar : Loudenback v. Collins, 4 Ohio N. S. 251.

At law a judgment of nonsuit is no bar to another action for the same cause. So, if the plaintiff mistake the form of his action and his writ be adjudged bad on demurrer, the judgment will not bar an action in proper form. So, if the plaintiff mistake his cause of action and the defendant demur and have judgment, this will not preclude a fresh action setting forth the right cause. So, also, if the declaration be demurred to and judgment sustaining the demurrer because of the insufficiency of the declaration, it will not estop the plaintiff to bring another action to enforce the same right; because the case as stated in the last declaration was not tried in the first. In these and like cases, if the defendant plead the former recovery in bar, the plaintiff may reply that it was not obtained on the merits: Wilbur v. Gilmore, 21 Pick. 250. Like, principle should apply wherever a decree in equity not obtained on the merits is pleaded in bar to an action.

We are of opinion that the record offered showed on its face that the decree was not on the, merits, even of the case presented. But further, the gravamen of the charge in the bill was an alleged verbal agreement between Jacob Sharrar and Jacob Detrick. As set out, it was insufficient to entitle the plaintiffs to relief. In this suit they claim an equitable title under a written contract, and rest thereon — they allege no oral agreement. In every view the merits of the claim in this suit were not passed upon in the former.

Judgment affirmed.


author: Chief Justice Sharswood

text:
    Metz versus Hipps.
    1. The saving clause in the 4th section of the Act of March 13th 1815, relative to the sale of unseated lands, provides that minors and insane persons, whose lands have been sold, are entitled to two years after removal of their disability wherein to redeem the same : Held, that this clause does not extend to cases of sales made under the 5th section of said act to the county commissioners, and to the redemption therefrom as provided in the 6th section.
    2. J. was born in 1851 and her title to certain land accrued in 1854. In 1862 said land was sold for arrearages of taxes', in accordance with the provisions of the Act of March 13th 1815, to the county commissioners and by them sold in 1868 to H. Two years after coming of age, in 1874, J. paid to the treasurer of the county the amount necessary to redeem her land and brought ejectment against H. to recover the same: Held, that the redemption of J. was too late and would not divest the title of defendant.
    3. Per Sharswood, C. J. — Limitations of remedies are purely statutory. While it may well be doubted whether the legislature could enact an immediate bar to any existing right, yet it is clearly settled that to prescribe the period within which any right may be enforced is within their power. They may or may not except disabilities, according to their pleasure. If they omit to say anything upon the subject, there is no power in the courts to supply what may have been an accidental or intentional omission.
    October 25tb 1880.
    Before Sharswood, G. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to tbe Court of. Common Pleas of Qamlria county: Of October and November Term 1879, No. 304.
    Ejectment by Tbomas J. Metz and Jennie, his wife, in right of said wife, against John Hipps and Uriah Lloyd to recover tbe undivided one-fourth part of a tract of land in Chest township, Cambria county, surveyed in pursuance of a warrant granted to James Hunter. The facts are set forth in the following opinion of Orvis, A. L. J., of the Twenty-fifth Judicial District.
    “ On the trial of the cause the plaintiff showed a complete tax title to this tract in Robert McNamara, the elder, who died in 1854, leaving four heirs, viz.: a daughter, Martha, two sons, Robert and William, and one granddaughter, the present plaintiff, and who was the daughter of Ellen Maria, wife of James Patton. Mrs. Patton, the daughter of Robert McNamara, and mother of the plaintiff, died in 1853. The plaintiff was born September 10th 1851. The James Hunter tract was regularly assessed with taxes for the years 1860 and 1861, and on the 13th of June 1862 was regularly sold by the treasurer to the commissioners of Cambria county. The tract not having been redeemed within five years the commissioners, at a public sale, on September 8th 1868, sold and conveyed the same to John- Hipps, one of the defendants. On the 25th of August 1874, within two years after Jennie McN. P. Metz had attained her majority, the amount of money necessary to redeem her undivided fourth part of this tract was paid by her agent to the county treasurer. The defendants allege this redemption to he without legal authority, arid therefore void. Notice having been given of a claim for mesne profits, and there being no fact in dispute concerning the title, we directed a verdict for the plaintiff, and submitted to the jury to find the quantity and value of the timber cut by the defendants, reserving the question whether the redemption made by the plaintiff on August 25th 1874 was good and valid in law so as to divest the defendant’s title acquired under the sale by the commissioners September 8th 1868. The jury returned a verdict for the plaintiff, .and assessed the damages at $8508. If the plaintiff has the right to redeem this land any time within two years after attaining her majority, judgment should be entered upon the verdict for the plaintiff. If her right to redeem terminated at the end of five years from the treasurer’s sale to the commissioners, judgment should be entered for the defendants non obstante veredicto.

    “ The decision of this question depends upon the proper construction of the Act of March 13th 1815, 6 Sm. L. 299, regulating the sale of unseated lands for taxes. Does the proviso to the 4th section extending the time during which certain classes of persons under disability may redeem their lands sold by the treasurer extend to sales made under the 5th section to the county commissioners, and to the redemption therefrom as provided for in the 6th section ?■ It seems somewhat strange that this question has not arisen and been settled by the Supreme Court long ago, when we remember the date of the act under which it arises. After the most careful examination of our books of reports, we are unable to find that the question has ever before been even mooted. It is true that in Sidle
      v. Walters, 5 Watts 389, and in some other cases, it is said that unseated land, the property of minors, sold for taxes, is subject to be redeemed at any time within two years after they respectively come of age. But wherever this or similar language occurs it is in the decision of cases where the land was sold to individuals and not to the county. It is equally true that in Steiner v. Coxe, 4 Barr 13, and in many subsequent cases, the Supreme Court has held that after the lapse of five years from a treasurer’s sale to the commissioners the title of the county becomes absolute. But in all these cases the former owner was under no disability, and of course the judges delivering the opinions had not in their minds the question raised in this case. From the fact that this question seems never to have been before raised, we at first were inclined to infer that it was so clear and plain that all lawyers agreed about it; but to our ■surprise, on submitting the question to several eminent and learned land lawyers, we found they divided nearly equally in their construction of the act in this particular. We are therefore left to come -to the best conclusion we may, after as thorough consideration as we have been able to give the subject.
    “ A literal reading of the proviso of the 4th section of the act would make it apply only to the redemption provided for in the body of the section. The section begins: ‘ If the owner or owners of land, sold as aforesaid, shall make or cause to be made, within two years after such sale, an offer or legal tender of the amount of the taxes for which the said lands were sold, and the costs, together with the additional sum of' twenty-five per cent, on the same to the county treasurer,’ &c., he or they may recover the same by due course of law, &c. Provided, ‘ that when the owner or owners of land sold as aforesaid, shall at the time of such sale be an orphan or orphans, or insane and residing within the United States, two years after such disability is removed shall be allowed such person or persons,’ &c. This would look as though the proviso referred only to the kind of sales from which the owners not under disability had to redeem within two years by paying the taxes, costs and twenty-five per cent, on the same.
    “ The counsel for the plaintiff, however, contend that this would be too narrow and technical a mode of reading the statute — that it is to be considered as a whole, and the words of this proviso should have the same force and effect as though they were in a section by themselves at the end of the act; in which case they would undoubtedly apply to all sales made in pursuance of any section of the act. That the general purpose of the law was to enforce the payment of taxes and not to forfeit or confiscate the estates of citizens; that the right of redemption is an equitable and beneficial one, and should not be narrowed' by construction: Patterson v. Brindle, 9 Watts 98; Dubois v. Hepburn, 10 Peters 1; Jenks v, Wright, 11 P. F. Smith 410 ; Lynch v. Brudie, 13 Id. 206. That the general policy of our law has been to preserve and protect the rights of minors and others under disability, especially from all species of forfeiture by reason of laches. That no good reason can be assigned for denying the same privileges to minors when their lands are sold to the county, which the act undoubtedly gives them if the same lands were sold to individuals. That the provisions of the 4th section of the act, which cures all defects in the forms of sales of unseated lands for taxes-, has been repeatedly held by the Supreme Court to apply to sales made to the commissioners under the 5th section: Peters v. Heasley, 10 Watts 208; Lee v. Jedds Coal Co., 4 W. N. C. 231; Huston v. Foster, 1 Watts 477; Laird v. Heister, 12 Harris 452, and many other cases. That if the provision curing defects in the forms of sales of unseated lands contained in the 4th section applies to all sales made in pursuance of the act, whether made to individuals or to the commissioners, a fortiori the provision in favor of minors in the same section should apply to all sales'under the act, even though made to the county.
    “We have given these several arguments due consideration, and though many of them might be sufficient if addressed to the legislature to induce that body to change the law so as to preserve the rights of minors when their lands are sold to the county, yet we are not convinced by them -that the legislature, by the enactment of March 13th 1815, did so make the law. A careful reading of the entire act brings our mind to the opposite conclusion. The first section directs the treasurers of the several counties to com-, menee on the second Monday of June, A. D. 1816, and at the expiration of every two years thereafter, and sell all tracts and parts of tracts of unseated land upon which taxes shall have remained due and unpaid for one year; directs the treasurer to give at least sixty days’ notice of the time and place of such sales, the township or townships in which said tracts of land are respectively situated, the number of acres contained in each tract, and the names of the. warrantees or owners thereof, and the sums due upon eacji tract for taxes, under the penalty of $50 in each and every case, and then adds : ‘ but the neglect of such treasurer to cause the said publications to be made shall not in any case invalidate any sale made in pursuance of the provisions of this act.’ The 2d section simply authorizes the treasurer in office to execute and deliver deeds for lands sold by their predecessors. The 3d section authorizes the treasurers to sue for and recover the purchase-money, and provides that it shall not ‘ be competent for the defendant in such suit to give in evidence any irregularity in the assessment or proceeding of the commissioners or treasurer touching any sale made in pursuance of this act.’ Sect. 4 provides: ‘that if the owner or. owners of land sold as aforesaid shall make or cause to be made within two years after such sale, an offer or legal tender of the amount of the taxes for which the said lands were sold and the costs together with the additional sum of twenty-five per cent, on the same to the county treasurer, who is hereby authorized and required to receive and receipt for the same, and to pay it over to the said purchaser on demand * * * said owner or owners shall be entitled to recover the same by due course of law. * * * Provided, that where the owner or owners of land sold as aforesaid, shall at the time of such sale be an orphan or orphans, or insane and residing within the United States, two years after such disability is removed shall be allowed such person or persons, their heirs or legal representatives to bring their suit or action for recovery of the land so sold,’ &c., &c. By the Act of April 25th 1850, the words ‘orphan or orphans’ in the foregoing proviso are directed to be taken and construed to mean ‘minor or minors,’ and though the original act does not expressly give to such persons two years after their disability is removed to redeem, but only to bring their actions to recover said land, yet the Supreme Court in Sidle v. Walters, supra, has contrued the proviso to extend the right of redemption that far, otherwise the entire proviso would be meaningless.
    “ So far this act is merely an amendment of the act of April 8d 1804, directing the mode of selling unseated lands for taxes, and seems to provide a system complete in itself for all cases where any individual will bid the amount of taxes and costs for the land. The three following sections are entirely new, and establish a different system for all cases where no one will bid the amount of taxes and costs for any tract:
    “ ‘Sect. 5. That if any tract of unseated land, hereafter to be sold for taxes due at this time, or which shall hereafter be imposed, shall not have bidden for it a. sum equal to the whole amount of taxes for which it shall have been advertised and the costs accrued, then and in that case, it shall be the duty of the commissioners of the proper county, or any of them, to bid off the same, and a deed shall thereupon be made by the treasurer to the commissioners for the time being and to their successors in office, to and for the use of the proper county; and it shall be the duty of the commissioners to provide a book wherein shall be entered the name of the person as whose estate the same shall have been sold, the quantity of land and the amount of taxes it was sold for: and every such tract of land shall not thereafter, so long as the same shall remain the property of the county, be charged in the duplicate of the proper collector: but for five years next following such sale, if it shall so long remain unredeemed, the commissioners shall, in separate columns in the same book, charge every such tract of land with reasonable county and road tax, according to the quality of said land, not exceeding in any case the sum of f6 for every hundred acres.’
    “ ‘ Sect. 6. That the right of redemption shall remain in the real owner of such land for five years after such sale, and on paying the treasurer of the county all the taxes and costs due thereon at the time of sale, and interest therefor for the same time, and also the taxes which shall have been assessed thereon from year to year after the sale, and interest of each assessment to be counted from the time it ought to have been paid, and on production of the treasurer’s receipt, the commissioners shall, by deed poll, endorsed on the back of the treasurer’s deed to them, convey to the persons who shall have been the owner of the land at the time of sale, or his legal representative, all the right and title-which the county may have acquired under such sale as- aforesaid; the moneys so received for road taxes shall be paid to the supervisors of the roads of the township within which such lands shall lie, on orders to be drawn by the commissioners on the treasurer to be applied by them in making and repairing the roads and highways in their respective townships.’
    “ ‘ Sect. 7. That if the owner of any such land shall not redeem the same within the period aforesaid, it shall thereafter be lawful for the commissioners to sell any such lands by public sale, and make a deed therefor to the purchaser, which shall be available in law, as well against the county as against the person or persons as whose estate the same has been sold, but no tract shall be sold for a sum less than the amount of taxes, costs and interest, which shall be due at the time of such sale by the commissioners, and such land shall thereafter be charged by the township' assessors in the name of such last purchaser or redeemer, and shall again be liable to be assessed and sold for taxes, agreeably to this act and the act to which this is a supplement.’

      “ The subsequent sections of this act afford no additional means of determining the question now at issue. It would, however, be difficult to imagine what words the legislature could have used to limit the right of redemption to five years in cases of land bought by the commissioners, regardless of the age and condition of the former owner, if the language quoted is liable to a different construction. ‘ The right of redemption shall remain in the real owner of such land for five years after such sale,’ is as clear and conclusive as if the words and no longer had been added; and as no exception is made in favor of minors or insane persons in respect to this right of redemption, we must presume the legislature intended there should he none. It must be borne in mind that the rights of all parties under tax sale in Pennsylvania, including the right of the owner to redeem, is purely statutory, and while we may not abridge or narrow the right of redemption by construction, neither can we extend it to any cases in which the legislature has not seen fit to give it. It is not pertinent to say that the minor is as much entitled to it in this case as if the land had been sold by the treasurer to an individual. Why the legislature gave it in the one case and did not give it in the other we may not be able at this late day to ascertain. But if it were necessary to give a reason one might be found in the fact that as to all lands bought by the commissioners, the terms of redemption were made easier by not requiring the twenty-five per cent, additional to the taxes and costs to be paid, but only simple interest, and the time for redemption was extended from two to five years, which the legislature may have thought was sufficient fpr persons under disability, they generally having guardians or committees to look after estates: especially as the lands that would be thus bought by-the commissioners were only those of so little value that no individual would bid the taxes and costs for them.
    “ If any further argument than that found in the words of the act were necessary to show that the legislature did not contemplate that the right to redeem from a treasurer’s sale to the commissioner’s could exist in any owner beyond the period of five years, it may be found in the absence of all provisions in the act which would be necessary if such right survived. If the infant or insane owner of a tract of land sold to the commissioners has the right to redeem after the expiration of five years, one of two consequences must necessarily follow: either first, the commissioners may not sell such tract at all as long as the right-of redemption exists, viz.: until the former shall have arrived at the age of twenty-three, if he was a minor, or until he recovered his reason if he had been insane; or secondly, the commissioners may sell at the expiration of five years after their purchase, in which case their vendee would take the land subject to the right of the former owner still to redeem. If we assume' the first to be true, it would then clearly be the duty of the county commissioners whenever they purchase a tract of land at treasurer’s sale to make inquiries and ascertain the age and condition of the former owner in order that they might know when his right of redemption would expire. In many instances this would .be impossible for them to do as the 'land may not have been assessed in the name of the real owner, who may be a non-resident of the county, and his title deeds may not have been placed on record. Besides, this duty would be entirely foreign to the ordinary official duties of county commissioners. It is, however, sufficient to say that no such duty was imposed upon them by the act, either in express words or by necessary implication, for they are clearly authorized to sell every tract of unseated land ‘if the owner of any such land shall not redeem the same within the period aforesaid,’?, e. within five years after the treasurer’s sale.
    “ If, therefore, the right of redemption in any case survives this period, the commissioners may sell, but the purchaser takes the land subject still to the right of the former owner to redeem from the treasurer’s sale. If a redemption should be made under such circumstances to whom would the redemption money belong ? Not to the county and supervisors of the roads, for they have already received all that was due the public from the proceeds of the commissioners’ sale. It may be said that in equity it belongs to the purchaser at the commissioners’ sale, as he has already paid the same taxes and costs into the county treasury ; but the county treasurer is not authorized or required to pay this redemption to him as he is to pay the redemption money to the purchaser at treasurer’s sale under the 4th section of this act. But even if we concede that the vendee of the county would be entitled to this redemption money, it might not compensate him for the amount he paid the county for the land. In consequence of the restriction in the 7th section he could not purchase it for less than the taxes, costs and interest; he might pay much more. In the case of Goodman v. Sanger, 4 Norris 37, a tract of land was sold, at commissioners’ sale for $10,000, although the taxes, costs and interest due the county at the time of the sale could not have amounted to $100. During the whole time which this tract was held by the county of Northumberland the former owner might have been insane. Had he, subsequent to the sale of the commissioners, recovered his reason and exercised his alleged right to redeem this tract he could have done so by paying the taxes and costs due at the time of the treasurer’s sale in 1816, with simple interest upon the same, from that time to the date of redemption, as no taxes were subsequently assessed upon this tract in the county of Northumberland. The sum of money required thus to redeem the tract would not have reached one per cent, of the amount for which the tract sold at commissioners’ sale. Conceding this redemption money to belong to the purchaser from the county, how would he be reimbursed the additional $9900 which he paid the county for-the land? Clearly this act does not require.the county to refund the money; the former owner is only required to pay the taxes, costs and interest, and yet the purchaser at commissioners’ sale loses his title by a redemption without having the .¿money which he paid refunded to him. It may be said that he purchased at his own risk, and if he gets no title it is his own loss. It is true that in all commissioners’ sales the rule of caveat emptor applies. The purchaser necessarily runs the risk of the existence and value of the tract and the validity of the title. He simply purchases and pays for the title which the oounty has; if he gets this he must be satisfied,' whether it is valuable or not. But surely the law will not provide to take that title from him by a subsequent redemption without at the same time providing to restore to him the consideration which he paid for it. The very absence of all provisions in the act for adjusting the equities between the former owner, the county and the purchaser at commissioners’ sale in case a tract of land was redeemed from the sale by the treasurer to the commissioners after the commissioners had regularly re-sold the same, is conclusive to our mind that the legislature never intended any such right of redemption to exist. As long as the county continues to own lands purchased by the commissioners at a treasurer’s sale the owner may redeem with the consent of the commissioners, although more than five years may have elapsed since their purchase : Steiner v. Coxe, supra; Coxe v. Walcot & Smith, 3 Casey 154. But after the commissioners have regularly sold the land at public sale no act of theirs or of the county treasurer in receiving redemption money can defeat the title of the county’s vendee. Diamond Coal Co. v. Fisher, 7 Harris 267.
    “ We are, therefore, brought to the conclusion that the redemption by the plaintiff of the undivided one-fourth of the James Hunter tract on the twenty-fifth day of August 1874, more than twelve years after tHe treasurer’s sale to the county commissioners, and nearly six years after the commissioners had sold to John Hipps, one of the defendants, was without legal warrant or authority, and, therefore, inoperative to divest the defendant’s title.”
    Plaintiffs took this writ, alleging that the court erred in entering judgment for defendants non obstante veredicto.

      Samuel S. Blair, for plaintiffs in error.

      F. A. Shoemaker and W. Horace Bose, for defendants in error.
   Chief Justice Sharswood

delivered the opinion of the court, November 8th 1880.

It seems scarcely necessary to add anything to the clear and able opinion of the learned judge of the court below, which we adopt as the opinion of this court. Limitations of remedies are purely statutory. While it may well be doubted whether the legislature could enact an immediate bar to any existing right, yet it is clearly settled that to prescribe the period within which any right may be enforced is within their power. They may or may not except disabilities according to their pleasure. If they omit to say anything upon the subject there is no power in the courts to supply what may have been an accidental or unintentional omission. The case of Warfield v. Fox, 3 P. F. Smith 382, strongly illustrates this doctrine. There it was expressly ruled that a saving from the operation of statutes for disabilities must be expressed or it does not exist. It is true that some pains were taken to show in the opinion that the statute there in question did not purport to be a supplement to the general Act of 1785, but that was merely an answer to the argument that the disabilities of that act were impliedly incorporated with it. We do not understand from it that if it had been a supplement to the Act of 1785 the determination would have been different. All acts of limitation are in pari materia and the same principles of construction are to be applied. If they were all to be consolidated into one statute, it would not follow that a saving of disabilities, specially enacted as to one class of subjects, would be implied as to all others. If the first section of such a statute related to limitation of actions for lands, and contained a saving of disabilities, it would not follow that such a saving would be implied as to personal actions. Each subject-matter must he considered as distinct. Had the seventh section of the Act of April 22d 1856 been a subsequent section of such a statute, it would not be a sound construction to import into it the saving of disabilities contained in the first, unless there was some reference to it. The argument of the learned counsel of the plaintiff in error that the fourth and seventh sections of the Act of 1815, being part of the same statute, are to be construed as if the seventh section was a mere supplemént to the fourth is therefore more ingenious than sound. They relate to different subjects, the one to sales by the treasurer to individuals in which a period of two years is allowed for redemption, the other a sale to the commissioners in -which the period is extended to five years. In the fourth section the saving of disabilities is expressly limited to sales as aforesaid made by the treasurer. In the seventh section there is no saving of disabilities. It is useless to speculate as to what may have been the reason of this distinction. If there were no reason, or a bad one, it would make no difference. It is enough to say that such was the will of the law makers. Besides the incongruities pointed out in the opinion of the learned judge below it is enough to say that they may have meant that to secure a full price for lands held by the county the purchasers should have a clear and indefeasible title, and thus the public treasury be benefited.

Judgment affirmed.


text:
    O’Maley versus Borough of Freeport.
    1. Where an act incorporating a borough confers upon the authorities all powers necessary “ for the well ordering and better government of said borough,” the power conferred is sufficiently comprehensive to cover every regulation necessary for the government of the borough and protection of its citizens, and the only limitation of this power is that it must be exercised in a reasonable, lawful and constitutional manner. If these limitations are not transgressed courts cannot interfere with the ordinances of such a municipality, for the burgess and council will be left to a reasonable discretion, and, for the proper and wholesome exercise thereof they are accountable, not to the courts, but to the people they represent.
    2. An ordinance of said borough requiring people to buy and sell coal by weights and measures is reasonable, lawful and constitutional.
    3. An ordinance of said borough requiring the payment of five cents per load for weighing coal bought and sold and the use of the borough scales, is notin the nature of a tax and is within the charter powers of the borough.
    4. Fisher v. Harrisburg, 2 Grant 291, followed.

      October 25th 1880.
    Before Sharswood, G. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, J J.
    Appeal from the Court of Common Pleas of Armstrong county: Of October and November Term 1880, No. 233. In Equity.
    Bill in equity filed by James O’Maley against the borough of Freeport and others. Defendants demurred to the bill.
    The facts are sufficiently stated in the following opinion of Neale, P. J.:
    “ These proceedings arise from the attempted enforcement of an ordinance of the borough of Freeport, passed the 4th of February 1878, relating to the sale and delivery of coal, &c., in the borough of Freeport. The bill filed by the plaintiff, avers: 1. That he is engaged in mining and the coal business in said borough, and that he has contracts for delivery to sundry persons in said borough. 2. That his customers do not require the same to be weighed, and that it would be inconvenient to do so. 3. That on the 4th of February 1878, the burgess and town council of said borough passed an ordinance, to take effect from and after the 4th of March 1878, requiring the. weighing of coal and the payment of five cents for each load delivered in said borough, and als'o imposing a fine of $5 for the first offence and $10 for each succeeding offence, &c. 4. That the charter of said borough was confirmed by Act of April 8th 1833; that the same does not authorize said ordinance. 5. That said defendants have Sued plaintiff, and are Seeking to enforce said ordinance. 6. Prayer for injunction to restrain and prevent the enforcement of said ordinance.
    The answer of defendants — 1. Admits facts of ordinance and its enforcement. 2. Demurs to third paragraph. 3. Denies allegations of fourth paragraph. 4. Have erected scales, &c. 5. Alleges compliance on part of plaintiff with ordinance. 6, 7. Alleges that ordinance is supplement of an ordinance passed April 19th 1864. 8. Ordinance necessary for the welfare of the residents of said borough. 9. Borough changed and under general borough law since September 6th 1878.
    “ In considering the question involved in this controversy, we are confined to the simple duty of construing the Act of Assembly incorporating the town of Freeport, approved April 8th 1833, Pamph. L. 320.
    “ The section relating to the powers of the burgess and council and the part that is pertinent to this inquiry is in these words :
    “ ‘ Section 7. And be it further enacted by the authority aforesaid, that the town council, so chosen, or a majority of them, of which the burgess shall in all cases be chairman and have the casting vote, or in case of his absence, inability or refusal to act, the assistant burgess shall have full power and authority to make and enact such ordinances, rules and regulations as may be necessary for improving and keeping in order the streets, lanes, alleys, roads, public squares, wharves, landings and common ground belonging to said town within the said borough, or removing nuisances or obstructions therefrom, and the same to annul, alter or make anew, as occasion may require; and also annually to appoint a town clerk, treasurer, and such other officers as may be deemed necessary; and also to assess and levy a tax for the said purposes, and shall have all other powers necessary for the well ordering and better government of the said borough. Provided, that the said ordinances, rules and regulations shall not be repugnant to the Constitution or laws of the United States or of this Commonwealth,’ &c., &c.
    “ Section 13 relates to general powers ofburgess, &c., and sheds some light on the construction of the whole act.
    “ It will be perceived that the first part of section 7 confers the power of taxation for the improvement, repairs, &c., of streets, lanes, wharves, &c. ; and the next part of same section is of a more general import, and authorizes the enactment of ordinances for the ‘ well ordering and better government’ of said borough. The words of an Act of Assembly as well as those of an ordinance, deed or will, are always to be taken as having a meaning, if such act or instrument is susceptible of construction, which will give force and effect to all the words, and only when they are unintelligible or obviously insensible are they to be distinguished.
    “ The first part of section 7 clearly presents certain objects for which taxes may be levied, assessed and collected. But it is clear that if the powers conferred by that part were to be limited to those expressed objects, the charter would be a dead letter so far as many essentials in the ‘ well ordering’ and ‘ better government’ of the borough would be concerned. We see no power conferred by which the dangers of fire could be averted. An engine could not be bought,'or an engine house erected; and yet this should be of first consideration as to the protection of the property of the citizens as salus populi suprema est lex. Anticipating, therefore, the various exigencies of municipal existence, the additional clause was added, which, if it has a meaning, and we cannot doubt that it has, carries with it a power beyond and different from those in the preceding clause, and conferring additional power, the purview of which is the ‘well ordering’ and ‘better government’ of the borough ; incidental to which, and a necessary sequence of laying of tax is the collection of money. It is, therefore, clearly in the power of the burgess and council to create such ordinance and by-laws as may be conducive to the ‘ well ordering’ and. ‘ better government’ of the borough ; and incidentally they are empowered to provide for the necessary expenses that may attend and effectuate such enactment.
    “ In the present instance we have only the ordinance before us which applies to the weighing of coal by borough authority, and payment therefor, as well as the penalty imposed for'violation of the ordinance. It does not express the object or the application of the revenue thus to be derived. In the absence of any averment to the contrary, or evidence, it is presumably for some purpose within the chartered powers of the municipality. It therefore only remains to inquire whether the method resorted to to raise this money is ultra vires or not. The rule applying to the passage and enforcement of ordinances would seem to be that they must be reasonable and not in restraint of trade. In the case of Commonwealth v. Gas Co., 2 Jones 319, the charter provided ‘ to make, ordain, constitute and establish such and so many laws, ordinances and regulations as shall be necessary for the governing of the districts and the welfare thereofin effect, the same as those contained in the present charter. Justice Rogers construes the powers thus conferred to be ‘full’ and ‘plenary.’ That case cites the cases of Village of Buffalo v. Webster, 10 Wend. 95; Bush v. Seabury, 8 Johns. 418; Brooklyn v. Cleves, Lalor 231; Brooklyn v. Buslin, 57 N. Y. 591, and Stokes v. City of New York, 14 Wend. 87, relied upon by defendants as authority here. When a by-law of an incorporated town forbids the hawking about or selling by retail within the bounds of the corporation, except at the public markets hnd wi-thin distances thereof, the sale of a quarter of lamb to a grocer at a place not within the allowed limits, and taking goods in payment, is a violation of the ordinance, subjecting the seller to the penalty imposed: Village of Buffalo v. Webster, 10 Wend. 95. The ordinance under which the decision was rendered provided ‘ that the trustees are authorized to make such prudential by-laws as they may deem proper relative to the good government of the village.’
    “In Stokes v. New York City, 14 Wend. 87, it is decided ‘that the ordinance of the city requiring anthracite or hard coal to be weighed by weighers appointed by the corporation is a valid by-law, not unreasonable or in restraint of trade; and a penalty imposed for .a violation of it may be enforced by action.’ ‘A municipal corporation has power to make sewers without any special authority given with that view; and, having made them, it may, by general rules independent of its general taxing power, regulate the use of them, and the price at which any private person may tap them, and protect them by proper penalties against invasion or injury:’ Fish v. Harrisburg, 2 Grant 297 ; Greensburg v. Young, 3 P. F. Smith 280; Williamsport v. Commonwealth, 3 Norris 487; 1 Dill. Mun. Cor., chap. 12.
    “ The law, as gathered from all authorities, fixes as one of the essential qualities of a'valid ordinance that it must be reasonable. Construed in this light, is it reasonable to demand the payment of a fixed price for weighing a specified commodity in daily and general use, and necessary for the convenience and comfort of the citizen ? Each taxpayer,' whether he owns or uses a vehicle or not, under the ordinary taxing powers of the borough is compelled to contribute more or less to the improvement and repair^of the public streets. The streets, however, are free to all, and any ordinance restraining their use would be unreasonable and invalid, but not so if a class of persons amongst whom this use is more general were -required by a general ordinance to contribute something for the privilege, provided that it be not unreasonable or in restraint of trade. Examining the ordinance in question, the amount demanded would not seem unreasonable, more especially as it is within the power of the persons so charged to demand the equivalent, either specifically or by an increased charge, from the purchaser; while by the means thus used the actual value of the article is ascertained and a quid pro quo rendered by the borough, at whose expense the scales are erected and the weighmaster maintained, thus affording secuxúty to the purchaser and vendor alike. Similar ordinances, though under greater statutory powers prevail in every city, authorizing not only the weighing but the inspection of nearly every article of food, which jnot only custom but general good resulting therefrom vindicate as reasonable and absolutely necessary. No one will assert that a pound less of flour or butter is sold or consumed than if it were not weighed and inspected, demonstrating that no restraint of trade thereby resulted.
    “ Therefore the ordinance in this ease appearing reasonable and not in l'estraint of trade, and the charter appearing to confer upon the authorities sufficient power, we are not moved to declare the ordinance void, and especially since the same question appears to have been adjudicated by so excellent and able a jurist as Judge Buffington, who seems to have entertained the same opinion. Vide proceedings in case of the Borough of Freeport v. John McCue, No. 96, March term 1867.”
    The court entered a decree in accordance with this opinion, when O’Maley took this appeal and assigned said decree for error.

      David Barclay, for appellant.
    The power claimed under this ordinance must be contained in the charter of the corporation or be a necessary incident to its existence: 2 Bac. Abr. 445. Corporations can only act in accordance with the power 'conferred on them, unless the power is by the common law an incident of the corporation : Thompson v. Schermerhorn, 2 Seld. 92; Mayor of New York City v. Ordrenan, 12 Johns. 122; City of Williamsport v. Commonwealth, 3 Norris 494. It cannot be pretended that the act in question contains any express power to pass such a by-law. Toll payable is not an incident, and must be granted in the charter : 4 Bac. Abr. 158. Nor to levy a tax upon a countryman who sells and delivers a load of liay : Kip v. City of Paterson, 24 N. J. Law Reports (2 Dutcher) 302. This ordinance is a species of taxation : Hammett v. Philadelphia, 15 P. F. Smith 146. The taxing power is an incident of state sovereignty, and a relinquishment of it cannot be presumed in the absence of express stipulation : Bank of Pennsylvania v. Commonwealth, 7 Harris 144. But is the ordinance applicable to the appellant ? It must be strictly construed. “All persons selling and delivering coal in the borough.” O’Maley’s contract was made in Pittsburgh. He delivered in the borough only. In the acts of incorporation by our legislature express power is granted in the charters for the establishment and control of markets and market houses: Act to incorporate Kensington, Pamph. L. 1820, 54, sect. 36; to incorporate the Northern Liberties, Pamph. L. 1819, 129, sect. 35; to incorporate the town of Waynesburgh, in Franklin county, Pamph. L. 1818, 7, sect. 6. The easés cited by the court are distinguishable from the one at bar.

      G. D. Findley, for appellees.
    The power to make by-laws is incidental to the whole body of every corporation; and, therefore, if a charter gives a select body a power to make by-laws touching certain matters therein specified, that does not take away from the body at large their incidental power to make by-laws touching other matters not specified in the charter: 2 Jacobs’s Fisher’s Dig. 2547 ; Rex v. Westwood, 2 Dow & Clarke 21. A municipal corporation is a government possessing power of legislation, and is charged with a general care for the welfare of the people: Williamsport v. Commonwealth, 3 Norris 494. The officers of the corporation are the best judges of the necessity of the oi’dinance: Fisher v. Harrisburg, 2 Grant 296. If any doubt exists as to the necessity and reasonableness of the ordinance, it must be solved in favor of the corporation which represents the public: 2 Grant 295; 11 Peters 544; 1 Am. Law Jour. 362. Laws requiring articles to be inspected, or weighed and measured before being sold, are in the nature of police regulations, and are valid in the absence of special constitutional provisions. When reasonable in their nature they are not regarded as being in restraint of trade: 1 Dill. Mun. Cor., ch. 12, p. 420. The weight of authority clearly shows that the ordinance in question is necessary, reasonable, and not in restraint of trade, and does not impose a tax ; would not then the power to pass it belong to the incidental or common-law rights vested in every municipal corporation for the protection and good of the public, without the word “ market,” or such like express term in the general welfare clause of section 7 above mentioned ?
   Mr. Justice Gordon

delivered the opinion of the court, November 8th 1880.

This case was determined in the court below on a demurrer to the bill, hence in this court it must stand or fall on the face of the bill.. So far as we can discover, nothing has been put in issue by the pleadings but the power of the borough to make an ordinance, such as the one in controversy. The counsel for the plaintiff, in his argument, inter alia, contends for a strict construction of the ordinance; that it is operative only upon those who both sell and deliver coal within the borough limits. If, however, for argument’s sake, we admit of a construction so exceedingly strict as this, nevertheless by the hill it docs not appear but that the plaintiff both sold and delivered his coal within the borough limits. The argument thus assumes facts not found in the case. Moreover, the plaintiff bases his complaint not upon any improper construction of the ordinance itself, nor upon the fact that it lacks applicability to his case, but upon the broad ground that the borough council had no power to make a regulation such as 'this. But a proposition of this kind is refuted by the act of incorporation itself. The seventh section of that act expressly confers upon the municipal authorities all powers necessary “ for the well ordering and better government of said borough.”

That the power here conferred is sufficiently comprehensive to cover every regulation necessary for the government of the borough and protection of its citizens, cannot, we think, be doubted. The only limitation of this power is, that it must be exercised in a reasonable, lawful and constitutional manner. If these limitations are not transgressed courts cannot interfere with the ordinances of this municipality, for to the burgess and council must be left a reasonable discretion, and for the proper and wholesome exercise thereof they are accountable, not to the courts, but to the people whom they represent: Fisher v. Harrisburg, 2 G. 291. Does, then, the ordinance complained of come within the limitations above named. We think with the learned judge of the court below that it does. Indeed, we cannot understand how any one can take exception either to the reasonableness, lawfulness or constitutionality of a regulation requiring 'people to buy and sell by lawful weights and measures rather than by guess. A proposition such as this is too plain for discussion; it is determined at once by the application of the ordinary principles of fair dealing and common sense.

Again, the'allegation that the charge of five cents per load for weighing and the use of the public scales is in the nature of a tax, and, therefore, not within the charter powers of the borough, is unsound. Such charge is not a tax any more than is a charge for for the use of a stall in a market-house, or for a stand upon a public street. It has less the character of a tax than an ordinance compelling occupants or owners of houses bordering on certain streets to keep their sidewalks clear from snow. It is no more of a tax than is a charge for the use of a public sewer, and yet all the above-mentioned impositions have been held not to be an exercise of the taxing power, but as in the nature of police regulations: 1 Dill. Mun. Cor. 424; Fisher v. Harrisburg, supra; Wartman v. Philadelphia City, 9 Casey 202. But in the case in hand, in the absence of the fact that the plaintiff or his customers had scales of their own on which his coal could be weighed before delivery, the charge was but a reasonable compensation for the services of the borough in doing that which he at all events was bound in good faith to do.

Decree affirmed at costs of appellant.