author: Mr. Justice Sterrett

text:
    Rowand versus Finney et ux.
    1. It is only on the ground of fraud, accident or mistake, in the procurement of a written instrument, or fraudulent use of it afterwards, that a chancellor will lend his aid to 'a party who seeks to avoid the legitimate operation of such an instrument; and while parol evidence is admissible to prove the alleged fraud, accident or mistake, the evidence should always be clear, nrecise and indisputable.
    2. Under our peculiar system of administering equitable principles in common-law actions the judge presiding at the trial performs the functions of a chancellor, and if his conscience is not moved to grant the equitable relief sought, it is his duty to interpose, either by withdrawing the case from the jury, or by refusing to receive or enter judgment on a verdict that is contrary to equity and good conscience.
    3. Per Sterrett, J. — If upon a review of the testimony, we are satisfied that the evidence is insufficient, and that the case should not have been submitted to the jury, or that the instructions of the court below were inadequate, we should reverse.
    November 9th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 134.
    This was’ an action in assumpsit brought by John A. Finney and Ada M. Finney, his wife, for use of fhe said Ada M. Finney, against A. H. Rowand, Jr., to recover the sum of $1965, with interest from August 3d 1875.
    A. H. Rowand, Jr., the defendant below, by warrantee deed dated August 3d 1875, conveyed to Ada M. Finney certain property in the borough of Verona, county of Allegheny, for the consideration of $2700. He received $1200 cash and a purchase-money mortgage with bond and notes of John A. and Ada M. Finney for $1500, payable in two instalments of $750 each, in four and six months respectively. The four months’ note he endorsed to the Franklin Savings Bank, of Allegheny. The six months’ note was endorsed to the Diamond National Bank, of Pittsburgh. When the first note matured, it was protested for non-payment, and a few days thereafter Finney paid one-half of the amount, and a new note for the other one-half, with interest added, was made by Finney and wife to Rowand’s order, and by him was endorsed to the Franklin Savings bank as before. This second note was also protested for non-payment at maturity. The six months’ note held by the Diamond National Bank was not paid and was protested at maturity. No further payments were made on these notes, and a scire facias was issued on the mortgage to No. 488, April Term 1876, marked A. H. Rowand, for use of the Diamond National Bank and George R. Riddle, trustee of the Franklin Savings Bank, v. Ada M. Finney and John A. Finney, her husband. Finney and wife appeared and made defence to this action, and on the trial there was a verdict against them for $848.92. Judgment was entered on the verdict and the property was sold on a levari facias, following the judgment, to the Diamond National Bank. After these ‘proceedings and sale, the present action was brought, wherein Finney and Avife claimed that the Avhole transaction Avas a loan of money made by Mrs. Finney toRoAvand. The declaration Avas in assumpsit, with a special count setting forth the giving of the deed, mortgage and other papers, together with the money paid as a loan. The answer was non assumpsit, with leave, &c., and a special plea setting up the suit and judgment at No. 488, April Term 1876, in bar of the-present action. The case was twice tried. On the first trial the jury disagreed. On the second trial the testimony Avas very contradictory. Finney and wife both testified that the transaction was a loan of money to Rowand, the plan of giving a deed, executing a mortgage, notes, <&c., having been suggested by Rowand, adopted by Finney, and consented to by Mrs. Finney, who claimed to be the owner of the money paid on account of the alleged loan. Rowand, on the other hand, swore that the transaction Avas simply what it purported to be on its face — a sale of the property for $2700; $1200 cash and four and six months for the remaining $1500; that his contract was made with John A. Finney, to whom he first made out and delivered the deed, and that this deed was subsequently surrendered and a new one made to Mrs. Finney, at John A. Finney’s request. That at the time the second deed was delivered he also executed and delivered a paper to Mrs. Finney, agreeing to repurchase the property at the expiration of two years, at the price paid, if Mrs: Finney should desire it, and denying that there was any conversation or contract between himself and John A. Finney, or between himself and Mrs. Finney, tending to make the transaction a loan. He also 'showed the possession of the property in the Finneys, and the payment of certain taxes by them.
    The verdict of the jury under the charge of the court, Kirkpatrick, A. L. J., was for $1250, about one-half the plaintiff’s claim.
    The defendant took this writ, among his assignments of error being the following:
    8. The court erred in refusing to affirm the defendant’s third point, and in their answer thereto, as follows:
    That it appears by the pleadings and evidence in this case that a scire facias was regularly issued upon the said mortgage of John A. Finney and Ada M. Finney, his wife, the plaintiffs, to A. H. Rowand, Jr., to No. 488, April Term 1876, of this court; that in said case both John A. Finney and Ada M. Finney, his wife, appeared and contested said proceedings and mortgage; that a verdict and judgment was had against the said Finney and wife in said suit, and by virtue of said verdict and judgment said plaintiffs here, John A. Finney and Ada M. Finney, are estopped and precluded from having or maintaining this action, and the verdict of the jury must be for the defendant.
    Ans. “Refused. We do not think the plaintiffs are estopped by the proceedings referred to in the foregoing point.”
    5. The court erred in the answer to and affirmation of the plaintiffs’ third point:
    That although the jury may believe that John A. Finney made a contract for the purchase of the property in question with the defendant, A. H. Rowand, the beneficial plaintiff in this case, Mrs. Ada M. Finney, is not bound by such contract, unless she gave to the same her assent and ratification.
    Ans. “ Affirmed. The papers, however, upon their face indicating that she did give her consent or assent, she must overcome or explain away this consent or assent so appearing upon the face of the deed, bond and mortgage, by clear, satisfactory and convincing testimony. Unless she does so, or rather has done so, your verdict must be for the defendant.”
    6. The court erred in charging the jury, in substance, where the whole question was one of fact, that the jury might find for the plaintiffs for the whole or a part of the amount claimed.

      7. The court erred in not charging the jury that the plaintiffs could not recover, and that their verdict should be for the defendant.

      J. H. Baldwin and James Fitzsimmons, for plaintiff in error.
    Under the charge in answer to the third point of the plaintiffs below, the jury were authorized to find that Rowand did in good faith make a contract with John A. Finney for the sale of this property, deliver his deed to Mrs. Finney, receive her money, mortgage and notes in pursuance of that contract, and that Mrs. Finney held the possession of the property till it was sold from her at sheriff’s sale, and then — nearly three years thereafter — could come into court and by proving that she had not understood the contract made for her by her husband, reverse all that had been done and recover the money paid with interest. We respectfully submit that such cannot be the law in this case. On the contrary, we believe the law to be too well settled for dispute that a married woman who undertakes to transact business with strangers through her husband as her agent, and ratifies his acts by her deed, is just as effectually bound by his representations as if she were single and acted through any other agency. Can it be possible that after keeping possession of this property until it was sold from her at sheriff’s sale, after having averred in defence of her mortgage that the contract was a sale with an agreement for repurchase; after placing herself in such position that she could not restore the property to the vendor, and without offer of reparation for damages sustained, she can be permitted to recover on proof that she had not understood her husband’s contract for her; that she did not intend to assent to a purchase but only to a loan? Surely strangers have some rights which a married woman is bound to respect, and sealed instruments carry some obligations with them. It should be observed that there is no charge of fraud or collusion between the husband and Rowand. The Doint rests simply upon the assent or consent of Ada M. Finney.

      Robert Robb, for defendants in error.
    A judgment of a court of concurrent jurisdiction upon a cause of action between the parties and upon the same grounds, is conclusive evidence of a former recovery, and will operate as a plea in bar or an estoppel: Lentz v. Wallace, 5 Harris 412. The sale in this cause was' a transaction in the nature of a loan. Mrs. Finney loaned Rowand $1200, and gave him the mortgage and notes to enable Rowand to raise money, and Rowand agreed to pay the instalments on the mortgage as they became due; this he neglected to do. Mrs. Finney paid $750 other than the first $1200, and at time of trial of sci. fa. on mortgage they knew Rowand owned the note for $750, and as a judgment in the sci. fa. proceeding would have been con-elusive between Mrs. Einney and Rowand they pleaded set-off, &c., and proved the judgment of $750. And the $1200 sued for is the money loan, and the cause of action is not the same subject-matter nor between the same parties, &c.
   Mr. Justice Sterrett

delivered the opinion of. the court, November 22d 1880.

Under our system of jurisprudence, in which principles of equity are recognised and enforced in common-law proceedings, it is not always impossible to prove that a transaction, evidenced by a deed, conveying real estate, accompanied with a bond and mortgage from vendee to vendor, securing the unpaid portion of the purchase-money, was in fact a loan of money and credit, and not, as it purports to be, an absolute sale and conveyance of land ; but, while this may be done, such an undertaking is always difficult and not always successful. As was said by Mr. Justice Williams, in Martin v. Berens, 17 P. F. Smith 459, “ where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of their agreement, and we are not disposed to relax the rule. It has been found to be a wholesome one, and now that parties are allowed to testify in their own- behalf, the necessity of adhering strictly to it is all the more imperative.” It is only on the ground of fra-ud, accident or mistake, in the procurement of a written instrument, or fraudulent use of it afterwards, that a chancellor will lend his aid to a party who seeks to avoid the legitimate operation of such instrument; and, while parol evidence is admissible to prove the alleged fraud, accident or mistake, the evidence, as was held in the case above cited, should always be clear, precise and indubitable. If courts do not strictly enforce the rule,- and, at the same time, exercise the power, with which they are invested in such cases, the security, afforded-by deeds and other written instruments, as evidence of title and of business transactions-between men, will be most seriously impaired.

When viewed in the light of prominent facts, which were undisputed, the case before us presents some singular features. By deed, dated and acknowledged August 3d 1875, the plaintiff in error and his wife, for the consideration of $2700, conveyed in fee a lot of ground, in the borough of Verona, to Mrs. Einney, one of the defendants in error, who at the same time united with her husband in a mortgage of the same lot, to the vendor, purporting to secure their bond to him conditioned for the payment of $750 in four months and the like sum in six months. At or about the same time the vendor received $1200, which, with the amount secured by the bond and mortgage, made up the full consideration mentioned in the deed-. Shortly thereafter two notes payable to the order of the plaintiff in error, and corresponding in amount and time of payment with the instalments of the bond, were given by defendants in error, as collateral to the bond. When the mortgage debt matured a scire facias was issued, in the name of the mortgagee to use of holders of the notes aforesaid, against the mortgagors, Finney and wife, both of whom appeared and filed a joint affidavit of defence, in which they recognised the validity of the mortgage, but claimed they had a just and legal defence, consisting of set off and payment, amounting to $814.98 in addition to the credit given by the plaintiff; and, as to the residue of the mortgage debt, their defence was that the scire facias was prematurely issued. After-wards, in May 1877, the case was tried on the pleas, “payment, set off, with leave,” &c., and resulted in a verdict and judgment for $848.92, in favor of the plaintiff, on which the mortgaged premises were sold. In all these transactions and proceedings, from first to last, there was not even the slightest intimation that the original transaction was anything else than a bona fide sale and conveyance of the lot, with bond and mortgage given to secure the residue of the purchase-money; but, strange as it may appear, after the lot was sold- on the levari facias, as the property of Mrs. Finney, she and her husband, in her right, commenced the present action, in which, for the first time, they alleged that the original transaction in 1875 was a loan by her to ftowand, the plaintiff in error, and that the lot was conveyed to her merely as security. If, in the face of the written and record evidence and of the previous conduct of the parties, all to the contrary, such a position as this can be assumed and maintained in a court of justice, it should be permitted only upon clear, precise and indubitable evidence that the transaction was in reality a loan and not a sale and conveyance of land. If evidence of that character and degree is not rigidly insisted on in such cases, many who, in fancied security, rest in the belief that they have been selling real estate and receiving the purchase-money, will be surprised to be informed by the verdict of a jury that they were only borrowing money which they must repay, after the’ land they had conveyed has been seized and sold as the property of their vendees.

Several of the assignments are not in conformity to the rules of court, and are therefore not entitled even to a passing notice.

The third assignment is not sustained. In any view that could be taken of the case under the testimony, the defendant’s third point was too broad, and it was properly refused.

In the plaintiff’s third point, the affirmance of which forms the subject of the fifth assignment, the court was requested to charge: “ That although the jury may believe that John A. Finney made a contract for the purchase of the property in question with the defendant, the beneficial plaintiff in this cáse, Mrs. Finney is not bound by such contract unless she gave-the same her assent and ratification.” The purchase of the lot by Mr. Finney was not a question in the case. The 'deed conveyed it to Mrs. Finney, and from her testimony, it is very clear she knew that it purported to be an absolute conveyance to her, and with that understanding united with her husband in executing the bond and mortgage for the residue of the consideration-money ; but, while admitting that, in form, the transaction was a sale, she alleged that, in reality, it was a loan, and was so understood by the parties. By affirming this point, an irrelevant inquiry was submitted to the jury, by which they may have been misled.

It is also complained that there was error in submitting the whole question to the jury as one of fact, and in not instructing them that, under the evidence, their verdict should be for the defendant. As we have already seen, the money which the plaintiff below sought to recover was paid in a transaction, which, upon the face of the writings, was a sale and conveyance of land, and was, therefore, presumptively, at least, the consideration-money mentioned in the deed. In making out the plaintiff’s case, it necessarily appeared that the money was so paid, and it was therefore essential to their success that the deed should, in effect, be reformed and converted into a mortgage. To this end the plaintiffs were obliged to invoke the equity power of the court, and upon that they must stand or fall. It is undoubtedly true that when a deed, absolute on its face, was intended, in reality, by the parties thereto to operate as a mortgage, it may in equity be so treated, because it would be a fraud on the part of the grantee, for example, to hold and use as indefeasible an instrument which was delivered to and accepted' by him as a defeasible conveyance; but, it is only upon clear, precise and indubitable evidence of the fact that this can be done. Under our peculiar system of administering equitable principles in common-law actions, the judge presiding at the trial performs the functions of a chancellor, and if his conscience is not moved to grant the equitable relief sought, it is his duty to interpose, either by withdrawing the case from the jury, or by refusing to receive or enter judgment on a verdict that is contrary to equity and good 'conscience. As a judge, he ought not to permit a jury to do what he, as a chancellor, would not sanction. When the requisite kind or degree of proof is wanting, the better practice is for the court to give the jury binding instructions, and thus withdraw the case from their consideration. A duty somewhat similar devolves on this court, when cases, grounded on equitable principles, are brought here on writs of error. If, upon a review of the testimony, we are satisfied that the evidence was insufficient, and that the case should not have been submitted to the jury, or that the instructions of the court below were inadequate, we should reverse.

The learned judge, in the body of his charge, properly instructed the jury that upon the face of the papers the transaction was a purolíase of the lot, and that it was incumbent on the beneficial plaintiff to satisfy them “ by clear and convincing testimony that such was not the fact, but that it was, as she claims, a mortgage, and intended as such to secure her in the loan.” But, afterwards, when the jury came into court for further instructions, he appears to have given them much greater latitude by saying : The whole matter is in your own discretion. You can do as you please. You can knock off interest or make any compromise, or do as you please, but in determining the amount, as in determining any other feature of the case, you ought to be controlled by the evidence.” It is true, the concluding part of the supplemental charge above quoted, was in answer to the inquiry of a juror as to whether, in case they found a verdict in favor of the plaintiffs, they might refuse to allow interest; but still it was calculated to impress the jury with the idea that the whole case was committed to their almost unlimited discretion. In view of the nature and character of the testimony, we think the court would not only have been justified in saying to the jury that the evidence was insufficient to warrant a verdict in favor of the plaintiffs for any amount, but we are of opinion that it was their duty to have done so. The evidence on which the plaintiffs relied was neither clear nor precise, and far from being indubitable. While, on the other hand, the deed and other writings clearly and with precision evidenced a sale and conveyance of the lot; and this was strongly corroborated by acts and declarations of the plaintiffs prior to the sale of the lot on the levari facias, and also by the testimony of the defendant and other witnesses. It was shown that after she received the deed, Mrs. Finney spoke of their having purchased the lot and of their intention to. improve it; and also, that it was leased on the shares for gardening purposes the next season after it was conveyed. In short, nearly the whole of the evidence, written and oral, except the testimony of the plaintiffs themselves, tended strongly and we think conclusively to show that the transaction was, in fact, what upon the face of the papers it purported to be, a sale and conveyance of the lot, accompanied with bond and mortgage, given to secure the residue of purchasemaney. The conduct of the plaintiffs was in entire accord with this from the inception of the transaction until after the property was sold to pay the residue of purchase-money secured by the mortgage. It was after this had occurred that the idea of converting the transaction into a loan, was probably conceived. On the whole, we think it was a clear case for binding instructions to the jury to render a verdict in favor of the defendant below.

Judgment reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Francies’s Appeal.
    1. Tho use by an owner and his tenants of a yard in the rear of his four or five houses, paved and open for all the tenants — the common use of one hydrant on the premises, with city water mains within a few feet of each house for separate connection — the common use of one alley, to a certain street between two of the houses and a footpath to another street, neither of which abutted on the property of the complainant, nor were essential for the enjoyment of his property as “ways of necessity,” eannot be taken to be an apparent necessity and permanent dedication to a common use in such manner as to subject the property to a continuance of the same condition in the hands of separate owners.
    2. It was contended by the complainant that it was necessary that the alley way should pass as an easement, because of the great disadvantage resulting to his property from its loss as a means of access to the yard for the purpose of cleaning the vault or privy on his premises. The only way by which this work could be done without the use of the alley was to pass through the house on complainant's own ground, or perhaps to sink the vault to the gravel. Held, that these difficulties or disadvantages, however great, ought to have been provided for by express grant if the complainant expected to use other ground than his own to surmount these difficulties.
    November 10th 1880.
    Before Sharswood, C. J., Mer-cur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 208. In Equity.
    Appeal of John Francies from the decree of the court refusing an injunction to remove certain obstructions from an alley-way and watercourse.
    Francies, in his bill in equity against William Shannon, in brief, complained:—
    1. That seventeen years prior to the time of filing his bill, Charles Stafford owned the land now belonging to plaintiff and defendant, at the corner of Grantham street and River avenue, in the city of Allegheny, leaving an open yard, in the rear of these houses paved with brick, for the common use of each and all, and for light and air, and with an alley-way between two of the houses to Grant-ham street, and an alley-way in the rear of said houses to River avenue, for the use of all the said houses and their tenants, and with a permanent drain and watercourse from the plaintiff’s houses into and through said alley-way, running to said Grantham street, and with a hydrant opposite said alley in said yard, for the common use of all said houses, and that the same had existed, and continued to exist, and were in use for the necessary convenience and use of said houses until that time. 2. That complainant bought and obtained a deed for part of said lot, including two houses, March 24th 1874, which deed conveyed also all improvements, ways, watercourses, privileges, appurtenances, &c. 3. That defendant held a •mortgage for $6700 on the whole property at the time of plaintiff’s purchase, and plaintiff paid him $2300 of the purchase-money for a release of said mortgage. 4. That in 1875 the defendant purchased, at sheriff’s sale, on his mortgage, the balance of said property. 5. That, until recently, the defendant had respected the plaintiff’s rights in said alley-ways, watercourse, &c., but had then proceeded to build over and obstruct and entirely destroying the same, entirely shutting in the plaintiff’s property from all access to said alley-ways or hydrant, and stopping off all flow of water by ■ said watercourse and confining it to plaintiff’s yard, and, although notified not to do so, continued to put up such obstructions. 6. The complainant sets out his irreparable damage. 7. He prays for an injunction, the removal of the obstruction, &e.
    Defendant’s answer, in substance: 1. Denies the watercourse as extending beyond defendant’s houses, and denies correctness of plaintiff’s plan as to that and the alley-way to River avenue. Avers the alley-way to Grantham street is covered. Denies the yard was left open for the common use of the house, and that the hydrant was for their common use.
    Denies that the yard was so paved as to have a regular,permanent surface drain by the alley to Grantham street, or that the way or watercourse were open, manifest, visible and permanent. 2. Admits plaintiff’s alleged purchase and deed, but denies its effect to give any easement over his property. 3. Admits receiving $2000 of plaintiff’s purchase-money, but denies that it was paid otherwise than as a payment by Stafford on the mortgage debt. 4. Admits plaintiff’s fourth paragraph. -5. Denies that he ever recognised or respected any claim such as made by plaintiff, and asserts that the plaintiff is not by his obstructions shut off from his premises; and asserts that they do not prevenfthe flow of .water from the rear of his houses, and that he could, at small expense, obtain other drainage. 6. Denies the sixth paragraph of plaintiff’s bill, and the plaintiff’s right to have relief.
    [The plan on following page will show the situation of the several lots, the brick work and the watercourse in question.] .
    The case was referred to a master, Christopher Magee, Esq., who made the following report:—
    “ That Charles Stafford, in 1860, purchased and held the property on the corner of River avenue and Grantham street, in the Fourth ward of the city of Allegheny, and now owned as two distinct properties by the parties to this proceeding. That at the time of the purchase and for some time thereafter, the. buildings on the property consisted of one frame house fronting on Grantham street, near the corner of River avenue, and two other connected frame houses on Grantham street a few feet from the northern line of the lot. That between the frame near the corner and the other two houses, there was an open space used as a yard, about twenty-eight to thirty feet in front. In this open space, Stafford built two brick houses with a three feet covered alley-way between them ; having just moved the two connected frames to the northern line of his lot and forward to the street line. In the rear of all the nouses, there was a yard about thirteen feet in width extending from the’northern line of the lot to River avenue. Stafford, as the owner of the entire property, did not separate the yards to the houses by fences, nor did he provide hydrants and separate drainage and al'ley-ways for the use of each house. He occupied one of the houses himself and rented the others, and he and his tenants used in common one hydrant which stood near the back line of the property, and opposite the alley-way between the two bricks, and in addition used at their pleasure and convenience the alley-way between the bricks and the foot-path to River avenue as a means of access to the back yards. Two privies or vaults stood on the ground, one in the rear of the two upper frame houses for their use, and the other in the rear of the lower brick house for the use of the corner frame and the two brick houses.

      “ The yard in the rear of all the houses except the corner frame, was paved with bricks so as to carry the water by the alley-way between the brick houses to Grantham street; a gutter extending from the lower line of the upper frame house, commencing at the foot of the conductor close to the house and running to a point about two feet distant from the rear line of the upper brick, house and thence across the lot in the rear of the upper one to the alleyway between the brick house, and thence by the same to Grantham street. This gutter was a shallow depression in the pavement, an inch or two in depth, such as is usually constructed in pavements to carry away the water falling upon the roofs of houses, when no sewerage is provided. It was not prominent nor marked in its character, but was visible to any one examining the property, and answered the purpose for which it was used.
    “This was the condition of the property in 1872 when Charles Stafford mortgaged the entire property to William T. Shannon, the present respondent, to secure the payment of $6700. On the 24th of March 1874, about one year and seven months after the making of the mortgage, Stafford made a deed, which was acknowledged on the 31st of same month and recorded on the 9th of April following, whereby he conveyed to John Francies,. the complainant, a portion of his land and houses in words following, viz.: “ All that certain lot or piece of ground situated in the Fourth ward of the city of Allegheny, &e., bounded, &c. Beginning on Grantham street, on the west side thereof eighty-four feet north of River avenue at the line of property now or formerly of Margaret Boy'd, thence by said last-mentioned line forty-five feet to the line of property now or formerly of Margaret Force, thence by the line of said property of Margaret Force thirty-one feet, thence eastwardly parallel with the said line of the property of Margaret Boyd, forty-five feet more or less to Grantham street, thence northwardly,by Grantham street and parallel with the line of the said property of Margaret Force to the place of beginning; being part of the same property conveyed by F. II. Donlan et al., to the said Charles Stafford by deed dated October 25th 1860. The privy or vault on the above described property to be removed by said grantee at his option, and the same t,o be clear and exempt from any right, easement or servitude by reason of the said privy or vault or usage thereof in favor of the said Stafford and wife -or appurtenant to the adjoining property owned by them or either of them, together with all and singular the buildings, improvements, ways, waters, watercourses, right, privileges, hereditaments and appurtenances, whosoever thereunto belonging or in any wise appertaining.’ The consideration paid by Francies was $2800, of which $2000 came to the hands of W. T. Shannon, and was entered as a credit on his mortgage.
    “ On the 7th of April 1874, W. T. Shannon, the holder of the mortgage, entered on the record .the following release of the lien of his mortgaged premises, to wit: ‘ For value received I hereby release from the lien of this mortgage all that portion of the property described therein, as follows: Beginning on Grantham street eighty-four feet north of River avenue and extending along said street toward River avenue thirty-one feet, and extending back from Grantham street of that same width forty-five feet, being the same lot which C. Stafford conveyed to John Francies, by deed dated March 24th 1874.’
    “ On the 1st day of March 1878 the said William T. Shannon, at a sheriff’s sale, on and by virtue of his said mortgage, bought the premises described in the mortgage (forty-five feet by eighty-four feet) ‘ excepting so much of the northern portion of said ground and property fronting thirty-one feet on Grantham street, by forty-five feet deep, as was conveyed by Charles Stafford and wife to John Francies, by deed dated March 24th 1874, and recorded in deed book vol. 826, page 420.’
    “ The rights and privileges conferred upon the parties, by their respective deeds, give rise to the questions in dispute in this proceeding.
    “ The complainant, in support of his claim, offered a plot made by Sarah Kephart, a witness to show in connection with her testimony, the condition of and manner in which the property was owned, prior’ to and after the purchase by Stafford. The plot, although very roughly-drawn, shows, with the testimony of the witness, the early condition of the property, and the fact that the property now presents a very different appearance. In some particulars, perhaps, after the improvements made, the same things may continue as before : it may, or it may not be that the drainage happens, from the upper frame house, to be on, or nearly on, the same ground; but the changes in the condition of the property are so radical that the master does not attach, much importance to the shape or use of the. property prior to its present shape and condition.,
    “The complainant also offered in evidence a notice dated April 30th 1877, served on the respondent, notifying him not to obstruct the use of the hydrant in the yard, as complainant claims the same to be an easement to his property. This notice was not regarded by the respondent, but the end was that the complainant put a hydrant on his own premises, for his own use, and, by permission of the respondent, connected the pipes thereof with the water pipes on respondent’s property. The master deems this course to have been an amicable adjustment of the. dispute so far as the same relates to the common use of the hydrant in the yard.
    “ The complainant proved that the privy or vault on his lot could not be cleaned, except by carrying the contents through the house, if deprived of the use of the alley-way between the two brick houses, and the outlet to River avenue by the path: and that the mode of cleaning through the house was very objectionable and inconvenient.
    “ The respondent offered in support of his denial of the claimant’s demands a receipt by Kitchen and Carson, plumbers, dated November 22, 1875, given to Wm. T. Shannon, the respondent, for t'.e cost of a new hydrant in place of the old one in dispute. The evidence connected with the bill was that Mr. Francies endeavored to pay the one-half thereof, but that Mr, Shannon, who had ordered the work, refused to have any participation by others in its payment. The bill and evidence connected therewith show that at a very early date in their ownership, the parties were in dispute as to their rights; that the least objectional of the easements claimed by the complainant, was denied by the respondent.
    “ Also, a copy of hand bill and advertisement purporting to be for the sale of ‘ two brick dwellings and one frame dwelling of six rooms, hall, kitchen and cellar.’ The master considers this paper immaterial, as it has no reference to a sale of the houses now owned by Francies ; the sale is not advertised for a time within six months of the date of Mr. Francies’s deed ; and no sale took place of the property advertised, as it is the same property afterwards purchased by Mr. Shannon, at the sheriff’s sale on his mortgage; and if any statements by the auctioneer were made relating to the common use of the alley way, it would be assumed to apply to the use by the houses between which it lay, and not to distant property not for sale, without express mention.
    “ The hand bill and advertisement by the owner of the whole estate for sale of a part, may, however, have some weight as indicating no intention in the arrangement of the parts or in their separation, to create an easement or servitude, or that any permanent disposition of the property had been made for common use: they also tend to rebut the idea of notice to Shannon thereby of any easement or claim thereof in his property.
    “ The respondent further offered in evidence a plan made by competent parties from measurements on the ground, which shows accurately the size and condition of the property and its surroundings as they are to be found at the present time. The plan shows the obstruction complained of by the erection of the brick kitchen begun about the time of the commencement of this proceeding, and completed shortly afterwards, upon the court’s refusal to grant a preliminary injunction to restrain. Prior to the building of the present kitchen, the brick houses and the frames, as indicated by the plan, were all of the same depth.
    “ The respondent also offered a plan made in the city engineer’s office of Allegheny city, from measurements made on the ground. It shows'the comparative height of the yard and the street in front of the house of Mr. Erancies, and with the oral testimony establishes the fact that a reasonable and not unusual mode of drainage for city lots can be secured over the complainant’s own lot at a cost not exceeding $261 The fall from the yard to the gutter in the street will permit the use of a drain pipe from six to twelve inches in diameter, a pipe large enough for ample drainage and to be readily kept open.
    “ The respondent proved that the contents of the privy on complainant’s lot could be removed through his house. That such mode of removal was not adopted except in case of necessity, but if needful it could be and had been done in that way.
    “ It is also reported as a fact that the respondent has not since the date of this mortgage given any recognition of the claims set up by the complainant in his bill, but on the contrary, since his purchase at sheriff’s sale, has constantly denied and refused, as matter of right, any claimed privileges on or over his property, and on one occasion prior to or about the time of the purchase by Mr. Erancies, refused him any use of the alley-wav, a privilege at that time requested for his present property.
    “ On these facts the complainant asserts in his bill the right to the following easements in the property of the respondent, and that they have been unlawfully obstructed. They are separately stated by the master as follows, to wit:—
    “ 1. That the back yard of the four upper houses from' River avenue was paved with brick, and was always kept open for the common use of each and all, and for light and air necessary therefor.
    “ 2. That opposite the alley between the second and third houses of the respondent, was placed and has ever since remained, a hydrant supplying water for the general and common use of the tenants of all said houses.
    “ 3. That the said yard was so paved, and has ever since the building of said houses to this time, been so kept that the third, fourth and fifth houses from said River avenue had a regular and permanent surface drain and watercourse and right of way and footpath open, visible and permanent in the plain sight of each and all persons coming to the premises, close in the rear of said houses down to, into and over said alley-way and watercourse between said second and third houses out into Grantham street, the right to which, and to have and maintain the same for the convenience and as necessary to said houses has at all times existed and still exists in full force as to all the owners and tenants thereof.

      “ 4. That a right of way from said upper houses, along in the rear of all said houses, and parallel with Grantham street, down to River avenue, as'the only outlet direct into said avenue, has, at all times, existed and been maintained for the use of said houses ever since their erection, until the present time.
    “ The law governing easements, applied to the facts in this case, must determine the rights of the parties, unless the bill be dismissed, as urged by the respondent, for the reason that the rights asserted have not been first adjudicated at law, a question which will be referred to hereafter.
    “ The doctrine of easements and servitudes seems to be well settled in the following particulars, viz.:—
    1. “ That all easements are interests in land, and depend for their creation on a grant or on prescription, which presumes a grant; and that a parol license is insufficient for the purpose of their creation. That grants are either express or implied.
    “ 2. That easements are of two classes, viz.: continuous, those of which the enjoyment is or may be continual, without the interference of man, as a running stream, a water spout, or the right to light and air, and discontinuous, such as can only be had by the interference of man, as rights of way, or a right to draw water. _
    3. That, as a general rule, continuous easements pass, as implied grants by construction of law, and discontinuous easements do not.
    “ 4. That all easements, of whatever class, which pass by implication or construction of law, must be necessary, apparent and permanent in their' character : that a temporary provision or arrangement made for the convenience of the entire estate, will not constitute the degree of necessity and permanency required to burden the property with a continuance of the same when divided or separated by conveyance to different parties.
    5. “ That no easements in one piece of land can be said to be appurtenant to another by reason of any use made of the two so long as they both belong to the same person. But privileges have been held to pass as incident to the same, and a correspondent burden imposed upon the other from the nature of the estate, the management of the parts of the estate, and the degree of necessity •there is of giving such a construction to the conveyance, in order to give it a reasonable effect.
    “It will be observed that all the easements claimed by the complainant and heretofore stated, with the exception of the “ permanent surface drain and watei'course,” and right to “light and air,” belong to the class designated as discontinuous easements, and are not incident or appurtenant to a grant, by implication or construction of law, unless there is necessity from the nature of the estate, and the management of its parts, that such a construction to ■ the conveyance should be given in order to give it a reasonable effect.
    “ It will be observed also in this case there is no express grant, no right by prescription, and no ‘ way of necessity’ claimed; whatever easements the complainant may have are acquired from the conveyance of Stafford and wife as incident thereto by implication or construction of law, he takes only such right and privileges as the law in the absence of express grant will confer.
    “ The alleged facts upon which the complainant bases his right to the easements claimed are, that the yard in the rear of the four upper houses was paved with brick, and left open for the common use of all the houses; that one hydrant supplied water for the general and common use of the tenants of all the houses; that the said yard has been so kept that the complainant’s houses had a regular and permanent surface drain and watercourse, and right of way between the brick- houses to Grantham street; that a right of way to River avenue has at all times existed and been maintained for the use of said houses.-
    “ Leaving out of consideration the allegation of the existence of a ‘permanent drain’ and admitting all the other allegations to be true of the manner in which the owner of the entire property and his tenants used the same, no easements or servitudes are thereby created. The creation of easements or servitude by the owner of the whole estate, which attach as implied grants to the parts when separated, depends not upon common use by the owner and his tenants, but upon the arrangements made of the parts whereby the easements and servitudes become necessary to give reasonable effect to the different conveyances.
    “ The broad principle upon which such easements are created or pass by implication is that the grant of a thing carries all things as included, without which the thing granted cannot be enjoyed, things incident and directly necessary to the thing granted.
    “ The easement must be necessary, and the degree of the necessity aS indicated by the authorities must be greater than is shown by provisions and arrangements made for the convenient enjoyment of the property as a whole.
    “ The decision of the courts referred to by counsel wherein discontinuous easements have been held to pass as appurtenant with out express grant are such as have no doubt of the owner’s intention in the arrangement and use of the parts to create a permanent easement and common use for the enjoyment of the several parts of the property into whomsoever’s ownership they may come, such as alley-ways 'between or abutting on the several parts or where houses in their construction require necessary support from each other; but the cases do not seem to extend the doctrine beyond easements or servitudes of this character. The master has found no cases.where the doctrine has been extended beyond such manifest and intended common use and where the benefits and burdens consequent appear to be clearly mutual.
    “ In the opinion of the master, the use by the owner and his tenant of the yard in the rear of his four or five houses, paved and open for all; the common use of one hydrant on the premises, with city water-mains within a few feet of each house for separate connection; the common use of one alley-way to Grantham street between the two brick houses and a foot-path to River avenue, neither of which abutted immediately on the property of the complainant, nor were essential for the enjoyment of the property as ‘ ways of necessity’ cannot be taken to be an apparent necessity and permanent dedication to a common use in such manner as to subject the property to a continuance of the same condition in the hands of separate owners; the use in the way shown is such as would reasonably be adopted by one owner as matter of convenience, but not such as would be reasonably made with a view to separate ownership and where more than one person had control.

      “ It is contended by the complainant that it is necessary that the-' alley-way should pass as an implied easement, because of the great disadvantage resulting to his property from its loss as a means of access to the yard for the purpose of cleaning, the vault or privy on his premises. The only way by which this work can be done without the use of the alley-way or foot-path, is to pass through the-house on his own ground, or perhaps to sink the vault to the gravel. These difficulties or disadvantages, however great, ought to be provided for by express grant, if the owner of the vault or privy expects or intends to use other ground than his own to surmount the difficulties. There is, however, a stronger argument to-show that it was not intended as a burden on adjoining property, to be found in the deed itself; the deed provided for a separation of the properties so far as the vault or privy is concerned ; and the difficulties of the care of such vault and its cleaning cannot legitimately be made as a reason for the creation of a servitude upon the respondent’s property. It is a fact in' evidence that the vault can be cleaned through the complainant’s own property, not a preferable mode where other means can be had, but still a way in the event of necessity and such as sometimes has to be adopted; it is an inconvenient way it is true, but to the other property the use of the alley for the purpose is also objectionable and inconvenient, the ■ only difference is in the degree; and under the general rule that each property must take care of itself, it.seems but right that the complainant’s property should bear this inconvenience.
    “ What has been said has been more particularly suggested in the consideration of the discontinuous easements, although applicable as well to continuous easements. We come now to consider the right of the complainant to the continuous easements claimed. They are 1, the right to ‘ light and air,’ and 2, thé right to ‘a regular and permanent -surface drain and watercourse ’ over the respondent’s lot and by the alley-way between the brick houses to Grantham street.
    “ The first claim, that of light and air, has not been shown to have been effected further than is the case when any building has been erected on the line of the property, without interference in any respect with windows: it cannot be said to be an interference with light and air improperly made, unless any improvement whatever of a vacant lot can be said thereby to unlawfully interfere with light and air; in this case it does not become needful to determine how far the doctrine with reference to “ light and air ” in this state has been extended, or whether applicable at all. Under any view of the facts, it could not be said here that any unlawful interference has occurred.
    “The second claim, that of ‘ a regular and permanent surface drain and watercourse,’ is an easement which has been held to pass by implication. The evidence in this case shows the claim to be a surface drain, and not for what is termed and known as a regular, watercourse, which implies a constantly running stream of water.
    “ The character of this regular and permanent surface drain ‘ has been given;’ it- was a shallow gutter in the pavement, the least and most inexpensive provision that could be made to carry off the water : it answered the purpose for which it was used, and may be said to have been visible to any one examining the property.
    “ The easement, however, to pass as an impliéd grant, must possess the additional qualities of necessity and permanency.
    “If it was not necessary, it would not pass as incident to the conveyance. The fact that it is a more convenient means of drainage than can be had over the complainant’s own property, cannot be said to constitute the degree of necessity required, the mode of drainage adopted over the'surface by a gutter, involving the adjoining property, ought not to be considered as a necessity when the same end can he attained by the complainant through his own lots at a trifling expense, and in a way not at all unusual in city property . It is preferable, and the law so considers it, that the ownership should be full and complete and untrammelled with implied burdens, and only when imperative necessity demands otherwise is a different doctrine permitted to prevail. Here the relative height of the yard and the gutter in Grantham streets admits of drainage by a pipe from six to twelve inches in diameter, at a cost of from $20 to $25. Witnesses differ in their opinion as to which is the best mode for drainage, on or under the surface ; but the.fact seems to be established, from the measurements taken, that a drain through the cellar, with reasonable fall, can be constructed on the complainant’s own premises. On the ground of necessity, the master does not deem the claim sustained.
    “ Let us then see whether it can be sustained on the plea of permanency. As the owner of the entire property, Charles Stafford could not well have made any provision for taking away the water and do less than was done; it certainly was the least expensive mode he could adopt, and if it had been his proposed object to make a temporary arrangement and not a permanent one, he could scarcely have done otherwise than he did do. If he had constructed under drainage, and by connecting pipes with the several houses, thereby manifested an intention to arrange for all the houses in a way not temporary merely, such drainage under the decisions might be deemed to be permanent in its character and pass with the land. But the manner of drainage used here was a. perfectly natural one for the owner of the entire property to make a temporary provision, and for his own convenience, but not very likely to be adopted as a permanent arrangement for a divided estate.
    “ There are some general reasons why the easements claimed should not pass, for instance: The deed to Mr. Francies provides for an entire separation of his property from common use by Stafford, and it seems but reasonable that, without reservation, an entire separation of the two properties was intended. It is not likely that, when the question of easements and servitudes was being provided for in the deed, entire silence would have occurred with reference to the complainant’s claims, if they had been contemplated and intended as part of the grant.
    “Again, the mortgage to Mr. Shannon antedates the deed to Mr. Francies several years, and the sale by the sheriff would pass the title held at the date of the mortgage, and the mortgaged premises could not be encumbered or burdened in any way to the mortgagee's disadvantage unless by his consent, and that he has neither done by the terms of his release nor by parol agreement: but on the contrary he asserts that if any such claim had been intended or asserted as a right he would have refused to release at all. The money paid and credited on the mortgage at the time of the release cannot be said to be more than a fair proportion of the mortgage-debt for the portion of ground released, and the payment furnishes no evidence that it was the intention to make better one portion of the ground at the cost of the other, for a consideration paid therefor.

      “ Again, the easements claimed are too many and affect too seriously the use and improvement of the property of the respondent, and are too important to the complainant to have been intended to be conferred by mere implication, or such as a vendee would be willing to purchase and pay for without their express mention in the deed.
    “ The view of the law taken by the master does not, in his opinion, conflict with the authorities cited by counsel.
    “ The authorities relied upon by the complainant are: Kieffer v. Imhoff, 2 Casey 488; Cannon v. Boyd, 23 P. P. Smith 179; Worne v. Marsh, 6 Phila. 33 ; The Church v. Yoneida, 6 Id. 557; Fidelity Building Association v. Getty, 33 Leg. Int. 238; Phillips v. Phillips, 12 Wright 178; Lampman v. Milks, 21 N Y. 505. Without entering into a discussion of all these cases, one tha-t of Kieffer v. Imhoff may be considered as substantially giving the rulings in the other cases ; the facts in each case may differ somewhat, but they all refer to controversies in reference to the use of the alleyway between or abutting on the separated houses or lots, or some other such manifest and permanent arrangement of the property.
    “Kieffer v. Imhoff was a dispute by adjoining lot-holders in reference to the common use of an alley-way between two adjoining houses erected on these lots. In the opinion of the court, it is said that, ‘ upon a severance of the estate by alienation of part of it, the alienee becomes entitled to all continuous and apparent easements which have been used by the owner during the unity of the estate, and without which the enjoyment of the property could not be fully had. * * * It is true that mere casual acts, * * * which are neither manifest to the eye nor designed to be permanent, do not fix the quality of any portion of his estate, but it is otherwise where the arrangements and dispositions are permanent and manifest. * * * The buildings on each side had been manifestly arranged with reference to the privileges enjoyed in reference to the alley.’
    “ The court refers to a fact which would seem in the case reasonably to indicate the intention to confer the easement as a designed and permanent arrangement in that it is sai-d ‘ that the right of way was expressly annexed to the Imhoff lot by deed in 1803, and afterwards recognised in 1878.’
    “ The case seems to establish the doctrine that easements, to pass by implication, must be ‘ continuous and apparent easements,’ ‘designed to be permanent,’ ‘without which the enjoyment of the several parts could not be fully had ;’ ‘ that the arrangements and dispositions must be permanent and manifest,’ and holding that an alley-way between buildings is manifestly for common use by the two houses between which it is located; but I do not know that the doctrine has been applied to any less manifest or unquestioned design in arrangement.

      “The authorities presented by the respondent, so far as they relate to the matter determined in those already cited, do not show any conflict in principle.
    “ Such, for instance, the case of Howell v. McCoy, 3 Rawle 256, to the effect that what is necessary passes, what is convenient does not; such the master understands to be the doctrine of all the cases that conveniences of use will not create easements. The other cases cited b,y the respondent, viz.: Collam v. Honker, 1 Rawle 108: Stuyvesant v. Woodruff, 1 Zabriskie 133; Johnston v. Jordon, 2 Metcalf 237, 238; Fetters v. Humphreys, 3 C. E.' Gr. 260 ; Same v. Same, 4 Id. 472; Maynard v.' Esher, 5 Harris 222, have reference to matters not questioned and need no special mention.
    “ The case of Adams’s Appeal, 7 W. N. C. 86, cited by respondent, is the last case on the subject decided by the Supreme Court. By reference to the case it will be seen that while Kieffer v. Imhoff and Connor v. Boyd are mentioned and sustained, it was held ‘ that the easement claimed by the plaintiff as a permanent easement was evidently a mere temporary arrangement for the accommodation of tenants.’ The facts show apparent necessity, design and arrangement of the parts, with a fenced way leading from a door in the house, and yet the court say under the cases recited this easement does not pass, and the bill of plaintiff was properly dismissed. This case indicates a disposition on the part of the Supreme Court not to extend the doctrine of Kieffer v. Imhoff, and similar cases,' beyond the facts exhibited in that case, and to confine implied grants to instances of absolute necessity -and unmistakable design in the arrangements of the parts as a permanent condition for the property, either as a whole or in divided, parts.
    “ The respondent asks, as the master has intimated heretofore, that the bill be dismissed, ‘because such a bill cannot be maintained until the rights asserted have been adjudicated at law,’ and cites in support of the demand Rhea v. Forsyth, 1 Wright 503; King v. McCully, 2 Id. 76; Howell v. McCoy, 3 Rawle 256; Bentz v. Armstrong, 8 W. & S. 40; Scott i>. Allender, 23 Pitts. Leg. Jour. 74. The doctrine established by these cases is, that ‘ the right should be clear to warrant a decree to be followed by injunction. * * * If doubtful this of itself would be sufficient reason to induce a chancellor to pause until the right be ascertained at law.’ But in the present instance, the view taken by the master is that the material facts upon which the complainant bases his claims are not denied or controverted. The evidence showing that the dispute is not so much upon the facts as upon the conclusions of law therefrom.
    “ The master has therefore determined the case upon the facts not in doubt in his view, and accordingly in conformity with the order of his appointment herewith reports the form of a decree to be made by the court in the premises.”
    Exceptions were filed to this report, which the court overruled, and dismissed the bill, from which decree this appeal was taken.

      J. M. Stoner and M. A. Woodward, for appellant.
    The evidence shows what the grantor said and intended in the arrangement and disposition of his property. The easements are as permanent and visible as any mentioned in the decisions or as by their nature they can be, and are as clearly for the accommodation of all parts of the property, and seriously affect its value, beneficial use and enjoyment, and beyond these evidences carrying such easements with the general conveyance of the land we have the deed conveying “the ways, watercourses, privileges, appurtenances;” &c.

      Malcolm May, for appellee.
    The court below rightly dismissed the bill, 1. Because taking the view of the case most favorable to plaintiff, the facts upon which he based his claims were in dispute, both by the pleadings and the testimony, and in such cases equity will not interfere: Rhea v. Forsyth, supra; King v. McCully, supra. 2. Because, even if the facts alleged in plaintiff’s bill as to the existence of means for surface drainage and of ways were conceded to be true, Shannon was a purchaser under his mortgage of 1872, took title at the subsequent sheriff’s sale as of its date; and would be unaffected by any subsequent disposition of the property by Stafford, except so far as he had consented thereto. 3.' Because Francies is estopped by reason of the fact that before •the making of the release in question Francies asked the defendant if the tenants could use the alley-way and the right was refused.
    In Bentz v. Armstrong, 8 W. & S. 40, the law of this state is stated to be that “ in cities the owner of each lot must drain it himself, either to rear or front, even if he should be compelled to carry it under or through his house or building.” In Scott v. Allender, 6 Pitts. Leg. Jour. (N. S.) 74, a case relating to drainage of lots in Pittsburgh, the Court of Common Pleas of Allegheny county, following this case,.held that “ each party must take care of the water falling or arising on his property and keep it off the other.” See also Rhea v. Forsyth, supra; Adams’s Appeal, supra; Rennyson’s Appeal, 13 Norris 147.
   The judgment of the Supreme Court was entered, November 22d 1880, .

Per Curiam.

We affirm this decree upon the remarkably clear and able opinion of the learned master in the court below.

Decree affirmed, and appeal dismissed at the costs of the appellant.


author: Mr. Justice Green

text:
    Faas versus Warner.
    1. An Act of Assembly which requires a county to pay the personal debt of an ex-sheriff, contracted for the purpose of supplying the prisoners in jail with bread, is void.
    2. A sheriff of a county entered into an agreement with the commissioners of the county to board the prisoners in the jail at a fixed rate, and contracted with F. to furnish the bread therefor. The sheriff died insolvent, largely indebted to F. for bread, a portion of which debt F. received from the administrator of the deceased sheriff. By a subsequent special Act of Assembly the 'county was required to ascertain the amount due from the sheriff to F., and to certify the amount to the commissioners for payment. The controller refused to comply with the requirements of the act,, and in a proceeding by mandamus to enforce the payment, Held, that the Act of Assembly was unconstitutional and void, as the debt was the personal debt of the sheriff.
    November 10th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 147.
    In the court below, this was a petition by J. M Faas, presented to the court and setting forth that the late Harry Woods, while sheriff of Allegheny county, contracted with your petitioner to furnish bread for the prisoners in the jail of said county, and that under said contract Woods, at the time of his death, was indebted to petitioner in the sum of $1507, bread having been furnished to that amount. That petitioner received from the estate of the said Woods- the sum of $651.52, leaving a balance of $855.48 due for bread furnished as aforesaid, which balance the estate of the said Woods is insufficient to pay. Your petitioner further represents that in view of said insufficiency of the estate of Harry Woods, by an Act of Assembly, approved the 30th day of March 1870, the controller of said county was authorized and required to examine the claim of petitioner against the estate of the late Harry Woods and ascertain the balance due him, with interest, after receiving his proper dividend from said estate, and to certify the balance so found to the commissioners of said county, whose duty it shall be to direct the same to be paid as other claims against the county are paid. That said controller has refused and does still refuse to examine said claim and certify the same as provided for in said Act of Assembly, although said controller has been requested so to do.
    Your petitioner therefore prays that a writ of mandamus may issue to said controller, directing him to examine the claim of your petitioner and certify the same to the commissioners of said Allegheny county according to the provisions of the Act of Assembly aforesaid.
    Henry Warner, the controller, filed an answer to said petition, which averred that the county of Allegheny did not contract the debt mentioned in the petition, and was not liable for the payment of the same; that Woods, who contracted the debt, was the sheriff of the county, and that about the 27th of November 1861, the 'commissioners of the county entered into a contract with him by which he agreed to board all court prisoners then imprisoned or who might thereafter be imprisoned (during his term of office) in the jail of the county at so much each per’day; that said board included bread as well as other food to be furnished prisoners, and that in pursuance of said contract the said county paid the said Woods in his lifetime and his administrator after his death, in full for boarding said prisoners from the 27th of November 1861 to the 14th of August 1873, the day of Woods’s decease; that the said county never was legally liable (to the plaintiff) for the debt mentioned in said petition, and further that the said county paid for all the bread (the consideration of said debt) long before the Act of Assembly mentioned in .said petition, and she .was therefore under no legal nor moral obligation to pay again for the same, either at, before or since the passage of said act; and respondent, for himself and the county aforesaid, therefore denies the right and power of the legislature to pass the said act, and believes the same under the foregoing state of facts, to be unconstitutional and void, and he therefore refuses to obey the mandates of the same, and further that said claim of plaintiffs was barred by the Statute of Limitations, before the passage of said Act of Assembly mentioned in said petition, and the county interposes said Statute of Limitations as a further objection to the payment of said claim.
    By agreement of counsel, the petition was treated as a writ of alternative mandamus, and the answer to the petition as an answer to this writ. The petitioner demurred to the answer, and the court, after argument, and without filing an opinion, refused the mandamus, which action was assigned for error by Eaas, who took this writ.

      Greorge Shiras, Jr., for plaintiff in error.
    The county of Allegheny was, under the law, bound to provide bread for the sustenance of the prisoners in its jail. The plaintiff furnished the bread and has not been paid. Why 'may not the state validly give the plaintiff a remedy against the county ?
    To the allegation that the county paid over moneys to Harry Woods’s estate after his death, and that the plaintiff must look to that estate, the answer is two-fold: 1. The county paid over such money in her own way, and was bound to know of and provide for her own debt, or those contracted for her benefit; She could not relieve herself of the obligation to provide and pay for the sustenance of the prisoners by a private and secret contract with one of her officials. 2. We are not seeking to compel the county to pay a second time. On the contrary, it appears that the county received credit on the plaintiff’s bill for such portion of payment as he received from the estate of Harry Woods, out of the moneys paid over by the county. It must be presumed that all the moneys so paid over to the estate of Harry Woods on account of bread furnished for the use of prisoners was properly applied and has been received by the plaintiff. And it is only for the balance remaining unpaid that the plaintiff demands payment, and for which the state has said, in its supreme wisdom, that the county ought to pay.

      S. H. Geyer, for defendant in error.
    By this act, the legislature has attempted to compel the county of Allegheny to pay the private debt of Harry Woods, contracted with the plaintiff while Woods was sheriff of the county. The fact that the debt was for bread furnished the prisoners at the instance and on the credit of said Woods, the then sheriff, does not make it any the less the private debt of Woods. The plaintiff could not recover it from the county, because the county never contracted with him to furnish the bread.
    This is not disputed ; and w'hile it is admitted that the county is legally bound to furnish bread for her prisoners, it must also be conceded that she has the right and power to contract with whom she pleases to furnish that food at a stipulated ■ price, and that she would be bound to pay the party with whom she contracted and none other. Sharpless v. Mayor of Philadelphia, 9 Harris 147, rules this case.
    The act under consideration was passed over six years after the county had paid and settled with the estate of Harry Woods for the boarding of the county prisoners, according to its contract with him.
   Mr. Justice Green

delivered the opinion of the court, November 22d 1880.

This case is heard on petition and answer, and, of course, as the answer is demurred to, we must accept the facts therein set forth as true. The answer alleges that the county of Allegheny did not contract the debt mentioned in the petition and was never liable for the payment of it. It avers on the contrary that the county contracted with Woods, the sheriff, for a stipulated sum,* for the support of the convicts, and that this compensation necessarily included bread as well as all other articles of food necessary for’their support. The answer further avers that the entire contract price was paid to Woods and his administrator in various sums and at different dates, aggregating $7333.25, which sum, it says, was “more than ample to pay for all the food (including bread) furnished” to the prisoners. The petition itself avers that Woods, personally, contracted the debt in question, and that a considerable part of it was received from his estate in payment. It thus appears that the petitioner’s claim was purely a personal one by himself against Woods, and further that there was not even a shade of obligation, legal or moral, on the part of the county to pay this debt. In such circumstances an act of the legislature directing the county to pay it is of no'more validity than would be an act directing the county to pay the debt of any private citizen. Such legislation is void for want of constitutional power to enact it. No authority has been shown in support of the claim of the plaintiff, and we are clearly of opinion that the court below was right in refusing the writ of mandamus prayed for.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Peet versus City of Pittsburgh.
    1. An appeal from the judgment of the mayor of Pittsburgh to the Court of Quarter Sessions was Brought up to the Supreme Court on a certiorari from that court: Held, that this court is confined to the record and can pass only upon error apparent on-its face unless extra the record a want of jurisdiction has been made to appear. With the evidence upon which the judgment is founded this court has nothing to do, even though it Be incorporated in the opinion of the court, for that opinion is no more part of the record than is the evidence itself.
    2. The facts and their application were for the mayor, who was the sole judge, subject only to the review of the Quarter Sessions, and although the facts are set out in the transcript from the mayor’s docket, this court is not authorized to pass upon them.
    November 10th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Certiorari to the Court of Quarter Sessions of Allegheny county.: Of October and November Term 1880, No. 254.
    In the court below this was an appeal by Robert Peet from the decision of the mayor of the city of Pittsburgh.
    Robert Peet was a member of a committee appointed by a literary association to which he belonged, for the purpose of making necessary arrangements for the delivery of a lecture by B.F. Underwood, Esq., at Library Hall, Pittsburgh, on the evening of May 11th 1879, at 7.30 p. M. The title of the lecture was, “ If Not Christianity, What ?” An admission fee of twenty-five cents was charged. No license was obtained from the mayor for the right of delivering such lecture, although an application -was made for a license, but refused by the mayor.
    On May 12th 1879, information was made against Peet before the mayor of Pittsburgh, and a warrant issued for his arrest, the charge being “for unlawfully exhibiting an entertainment and lecture by one B. F. Underwood, at Library Hall, in said city, on the evening of May 11th 1879, without first having received a license or permit from said mayor, contrary to a city ordinance passed in pursuance of an Act of Assembly of the legislature of Pennsylvania.” After a hearing the defendant was “ duly convicted,” the mayor being of the opinion “ that the lecture, delivered on May 11th 1879, by B. F. Underwood, at Library Hall, "was an exhibition,” &c., &c., and imposed on the defendant a fine of “ twenty-five dollars and costs, or in default of payment thereof, to be committed to the Allegheny county workhouse for a period of twenty days.” The defendant paid the fine. He then applied to and obtained from the Court of Quarter Sessions of Allegheny county the right to file in said court an appeal from the summary conviction of said mayor.
    On March 17th 1880, the court below, White, A. L. J., filed the following opinion:
    “ The Act of April 6th 1867 gave the city ‘power to regulate, license or prohibit all theatrical exhibitions and public shows, and all exhibitions,' of whatever name or nature, for which money or any other reward is in any manner demanded or received. Provided, that lectures on historic, literary or scientific subjects shall not come within the provisions of this section.’
    “The ordinance of the city prohibited all such exhibitions without a license first had from the mayor, and for a violation of the ordinance imposed a fine not exceeding $50.
    “ The appellant, on the 15th May 1879, was fined by the mayor $25 and costs, $3.40, for a violation of the ordinance. The alleged violation was an exhibition or entertainment by B; F. Underwood, on Sabbath evening, May 11th 1879, in Library Hall, under the auspices of the appellant and the Liberal League of Pittsburgh, at which admission tickets were sold.
    “ It is claimed by the appellant that the entertainment was simply a lecture of a scientific, literary or historic character, for which no license was required under the proviso of the act.
    “ This is a question of fact to be determined by the evidence. The mayor, at the hearing before him, heard the evidence and the argument of counsel, and decided it was not such a lecture, but was of such character as required a license under the Act of Assembly and the ordinance of the city. We have no evidence on the subject except what is set forth in the mayor’s transcript. Whether it contains all the evidence heard by the mayor we are not informed. He is not bound to set forth and return to court all the evidence. In the absence of evidence to the contrary it is to be presumed he had sufficient evidence to justify the finding of the fact.
    “ In the transcript it appears that J. C. Kramer was sworn for defendant, and testified that he was the president of the League, and heard the lecture. He says : ‘The subject was to teach and enlighten the people as to the character of Christianity and as to what materialists had to offer in its stead and to show the superiority of the materialistic doctrine: If not Christianity, what ? In the course of the lecture there was a discussion of the doctrine of evolution as taught by modern scientists.’
    “ That may be all true, and yet the lecture may have been an ‘ exhibition’ in the meaning of the act. The leading object may have been to make money and give amusement, like all theatrical exhibitions, by a display or exhibition of acting or oratory.
    “ This view of the case is confirmed by the admissions before the mayor as set forth in the transcript, ‘it is admitted the defendant was one of the committee of arrangements in procuring the attendance, and carrying out the lecture delivered by B.'F. Underwood,’ as set forth in the hand-bill: ‘Library Hall. B. F. Underwood will deliver his famous lecture, entitled If not Christianity, What ? under the auspices of the Pittsburgh Liberal League, Sunday evening, May 11th 1879, at 7| o’clock. Admission 25 cents; no extra charge for reserved seats. Box open at hall Saturday and Sunday.’ It is also set forth as a conceded fact, ‘that application was made to the mayor for license or permit for such entertainment, to be exhibited on Sunday evening, May 11th 1879, and the issue of which was refused for said Sunday evening.’
    “ The fact of such application, and the terms in which it was made, ‘ for such entertainment to be exhibited,’ are strong evidence that the parties applying considered it came within the class of entertainments or exhibitions requiring a license.
    “Upon the evidence before us we cannot say the fine was improperly imposed. The appeal is therefore dismissed at cost of appellant.”
    Peet then took this writ and alleged that the court erred, 1. In not disposing of the appeal de novo. There having been no testimony offered by the prosecutor, as is evident from the record, the court should have reversed the judgment of the mayor, as the prosecutor was bound to establish his case de novo, and the court in an appeal could not pass on the merits of the case on the faith of the testimony set forth on the mayor’s transcript, even though such transcript contained all the evidence submitted, which it did not. 2. The decision of the court should have been in the form of an original judgment, and should have specified that the offence committed was not within the exception of the city ordinance, under which the conviction was had, to wit, was not a “ lecture on a historic, literary or scientific subject.” 3. The act of defendant set out on the record was not contrary to law. 4. The judgment entered was not original.

      Josiah Cohen, for plaintiff in error.
    The lecture partook in its very nature of a “ historic” and “ literary” character, and was in no sense an exhibition. The docket entry shows that there was no hearing before the eourt on the appeal, and it is evident the same was treated as a certiorari, and an opinion filed declaring, “ the appeal is, therefore, dismissed at costs of appellant.” That an appeal is to be tried and determined by the Superior Court de novo needs no argument, but in this case there was no hearing. The prosecution presented no witnesses, and the decree of the court was pronounced solely upon the-faith of the testimony submitted in the transcript, as will appear from the following citation from the decision of the court when speaking on the question as to whether the performance was an exhibition or a lecture. The court says : “ We have no evidence on this subject except what is set forth on the mayor’s transcript.” All the elements essential to the making up of a new judgment were wanting, and the sentence of the court was pronounced solely on an inspection of the trans-script, as a review of the court’s decision will emphatically disclose.
    [Sharswood, C. J. — What Act of Assembly gives an appeal in cases of this kind? I don’t think we have any.]
    The Act of 1876 gives an appeal from summary convictions. But this is not an appeal, it is a certiorari.
    [Paxson, J. — How does that appear, the record does not show it ?]
    The opinion of the court shows it.
    [Paxson, J. — That is not a part of the record.]

      Thomas S. Bigelow, for defendant in error.
    The appeal of Peet came in its regular order for determination in the Court of Quarter Sessions before the Hon. J. W. F. White, and was fully argued by the counsel on both sides, and was submitted to the court as embracing everything upon or about which counsel desired to be heard. A writ of error was the proper remedy here, as the order dismissing the appeal was equivalent to a judgment.
   Mr. Justice Gordon

delivered the opinion of the court, November 22d 1880.

This was an appeal from the judgment of Robert Liddell, mayor of the city of Pittsburgh, to the Court of Quarter Sessions, and comes to us on a certiorari from that court. We are confined to the record, and can pass only upon errors apparent upon its face, unless extra the record, a want of jurisdiction has been made to appear: Shenango v. Wayne, 10 Casey 184; In re Church street, 4 P. F. Smith 353; Burginhofen v. Martin, 3 Yeates 479. With the evidence upon which the judgment is founded we can have nothing to do, even though it be incorporated in the opinion of the court, for that opinion is no more part of the record than is the evidence itself: Mauch Chunk v. Nescopeck, 9 Harris 46; Bradford v. Goshen, 7 P. F. Smith 495.

What we are called to pass upon, in the case before us, is the jurisdiction of the mayor and the -regularity of the record; but as neither of these is called in question our task is an easy one; we have but to affirm the court below.

The only thing complained of is that the facts of the case did not bring it within the ordinance, but within the exceptions therein mentioned; that the matter complained of was not such a public entertainment for which license was required, but a lecture exempted by the fourth section of the ordinance. This- may be astated; we are not disposed to controvert it; but then, that was for the mayor; of the facts and their application he was the sole judge, subject only to the review of the Quarter Sessions, and, though the facts are set out in the transcript from the mayor’s docket, we are not authorized to pass upon them.

The record proper exhibits a case within the ordinance, and within the mayor’s jurisdiction, the process and judgment are regular, and, such being the case, we can look no further.

Judgment affirmed.


text:
    Milligan’s Appeal.
    At a municipal election where two councilmen were to be chosen for different terms, certain ballots were cast which did not specify for which of the terms they were intended. Held, that the ballots were properly rejected.
    January 12th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Green, JJ. Sterrett, J.; absent.
    Appeal, from the decree of the Court of Quarter Sessions of Philadelphia county: Of January Term 1878, No. 185.
    Appeal of S. P. Milligan from the decree of the court setting aside the return of said Milligan as councilman from the Thirty-first ward of the city of Philadelphia, and adjudging that one S. A Miller was the duly elected candidate.
    The petition of J. Rieber and others, citizens and qualified electors of said ward, set forth that at the municipal election held February 20th 1877, the electors of said ward were entitled to vote for two members of Common Council, one to serve for two years from the first Monday of April 1877, and one to serve from the first Monday of January 1878, to the first Monday of April 1880 ; that the election officers of said ward had returned that S. P. Milligan had been chosen at said election to serve for the term commencing April 1877, and that said return was false, fraudulent and untrue in that, inter alia, certain tickets had been counted for the respondent, Milligan, which did not specify for what .term they were cast.

      The answer of the respondent denied the facts as set forth, and asserted that no specification of the term of office was necessary, as the election was for members of Common Council for the regular and full terms of office.
    In an opinion of the court, Briggs, A. L. J., inter alia, said: “The evidence before us shows that there were cast for the said Samuel P. Milligan, for the term commencing on the first Monday of April 1877, 1170 votes; for the term commencing April 1877, 164 votes; without designating any term, 238 votes; for Samuel Miller, for the term commencing April 1877, 1574 votes.
    “ If we discount the 238 votes cast for Milligan without designating for which of said terms they were cast, Miller has undoubtedly been elected.
    “ But the respondent contends that these ballots should be counted as if- cast for the term commencing the first Monday of April 1877, and not as for the term commencing the first Monday of January 1878, and by so counting them they would elect the respondent; this is true; but how can we ascertain for which term they were cast, in the absence of designation or proof ? • It assuredly will not do for us to guess. The voter should so express his intention as to leave no doubt, when two persons are elected at the same time to like offices, but for different terms, for which term he casts his ballot. The omission is his, and he should not complain if from the impossibility of ascertaining his intention, his ballot be rejected.”
    A decree was entered in favor of the contestants, when Milligan took this appeal and alleged that the court erred, inter alia, in the above action, and (seventh assignment) in rejecting the 238 votes cast for him without designation of the term.

      E. R. Worrall and Henry C. Hawkins, for appellant.
    It is clear that the respondent received more votes than the contestant, and the only question is whether certain citizens are to be deprived of their votes because they neglected to specify on their ballots for which term they were intended.
    J. A. Simpson, contra.

    (See succeeding case, In re Contested Election of Grilleland, page 224. — Rep.)
   The judgment of the Supreme Court was entered January 26th 1880,

Per Curiam.

We find no error in this record. The seventh assignment of error, on which alone reliance was placed in the argument, is not sustained. The action of the court in rejecting the votes cast for Milligan for the office without designation of the term, we think was clearly right.

Proceedings affirmed.