author: Mr. Justice Woodward

text:
    Commonwealth versus Naile.
    1. The provisions of the Act of December 16th 1869, which limit the time within which proceedings for an escheat must be instituted, do not apply to cases where the person, for default of whose heirs the estate escheats, does not die in actual possession of the property. An interest in remainder, therefore, cannot be escheated until the expiration of the life-estates, and the limitation only begins to run from that time.
    2. An estate held in trust may be escheated when the trust has expired, and the trustee has no further active duties to perform.
    January 22d 1879.
    Before Siiarswood, C. J., Merour, Gordon, IAvxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia, county: Of July Term 1878, No. 133.
    This was a proceeding by the Commomvealth ex rel. George N. Watson, to escheat an estate, formerly the property of Cecilia Erben, in the possession of William E. Naile, trustee under the will of Henry Sell.
    The inquisition filed showed that a jury of inquest, duly summoned, found “ that Cecilia Erben, late of the city of Philadelphia aforesaid, died in 1852, intestate, without heirs or any known kindred, and that she was possessed at the time of her decease of the following personal estate, to wit: a vested interest in remainder in the one-seventh part of the residue of the estate of Henry Sell, deceased, which interest became vested in possession about June 1876, and that the said personal estate is in the possession or custody of William E. Naile, trustee under the will of the said Henry Sell, deceased.”
    The defendant, William E. Naile, trustee under the will of Henry Sell, filed a traverse to this inquisition, in which all the facts found by the jury were admitted, but the right of the Commonwealth to an escheat was contested upon the following grounds:
    1. Because more than twenty-one years elapsed since the death of the said Cecilia Erben before the commencement of any proceeding or inquisition for an escheat, whereby the Commonwealth has become debarred from claiming the said property as escheated, according to the Act of Assembly of 16th December 1869.

      2. Because there is no adequate provision made by law for the escheat of said property, the same being an interest held in remainder.
    3. Because there is no adequate provision made by law for the escheat of said property, the same being an interest held in trust.
    The case coming on for trial, a verdict was rendered for the Commonwealth, subject to the opinion of the court whether, upon the facts as admitted, the Commonwealth was entitled to judgment. These facts will be found fully stated in the opinion of this court. The court below, Biddle, J., subsequently entered judgment for the defendant upon the reserved point, non obstante veredicto. This action was assigned fo,r error by the Commonwealth, which took this writ.

      'Richard O. Bale and Henry 0. Olmstead, for plaintiff in error.
    —This proceeding is not barred by the Act of December 16th 1869, Pamph. L. 1870, p. 1372, Purd. Dig. 616, because that act is in terms expressly limited to cases where there is an escheat for default of known heirs of the owner last seised or possessed of the estate. Cecilia Erben was not the owner last seised of this estate.
    The Statute of Limitations does not begin to run against a remainderman until the termination of the life-estate to which the remainder is subject: Garnet et al. v. Lynn, 7 Casey 94.
    In this case the Commonwealth, standing in the shoes of the remainderman, has no right upon which proceedings could have been instituted, until the termination of the life-estates of the father, mother and wife of Henry Sell, which occurred in 1876. In less than a year after the. right of the Commonwealth accrued, the proceedings for this escheat were instituted.
    It is said that there is no provision made by law for the escheat of an interest held in remainder.
    The estate, however, which the Commonwealth is seeking to recover, vested in possession prior to the institution of these proceedings. While the estate continued an interest in remainder, we admit that no proceedings for an escheat could have been maintained; the right of the Commonwealth to succeed to the estate was secured by the Act of 8th April 1833, supra, which, under Cote’s Appeal, supra, covers a remainder expectant upon an estate of freehold, but the proceedings to effectuate their rights necessarily ■rested until the termination of the life-estates.
    The third point made against the Commonwealth is, that this is an interest held in trust, and that therefore it is not subject to proceedings for an escheat. It may be true that until the Act of 17th of April 1869, Pamph. L. 71, Purd. Dig. 612, pi. 5, interests held in trust did not escheat; and we are also prepared to admit the propriety of the decision in West v. Pennsylvania Co., 14 P. F. Smith 195, and its authority as a precedent in similar cases; but the case before the court is essentially different from West’s case, because here the trust was no longer active, and the money held in trust was duo to those entitled to receive it under the will.

      Alfred I. Phillips and JE. Ooppée Mitchell, for defendant in error.
    1. The Act of 16th December 1869, Pamph. L. 1870, 1372, Purd. Dig. 616, requires the Commonwealth to begin proceedings to enforce an escheat within twenty-one years after the death of the owner last seised or possessed, for defect of whose heirs the escheat takes place.
    If, therefore, Cecilia Erben’s ownership at the time of her death was a “ seisin or possession ” within the meaning of the statutes relating to escheat, the right of the Commonwealth is now barred.
    2. If, on the other hand, her ownership at the time of her death was not such a “seisin or possession,” the escheat can never be enforced.
    The Commonwealth lays her claim under the Act of 8th April 1833, Pamph. L. 315, Purd. Dig. 611, 809. This act is a part of the intestate law, and expectant interests may pass under it, but it provides no means for its own enforcement. The Commonwealth, therefore, has proceeded to enforce it under the Act of 1787. If it cannot be enforced under this act, it cannot be enforced at all, for this statute alone provides a means for carrying escheats of decedent’s estates into effect.
    The Act of 1787, however, only covers property of which the intestate was “ seised or possessed,” at the time of death. Under sect. 3, a jury of inquest are summoned to inquire “ whether the decedent was at the time of his or her death seised or possessed of any and what estate, real or personal.” They are sworn only to inquire as to this, and have no authority to inquire whether the intestate had an ownership merely, without seisin or possession.
    In West’s Appeal, 14 P. F. Smith 186, and West v. Pennsylvania Co., Id. 195, the nature of the proceeding under this act was carefully considered. In these cases an attempt was made to escheat property in the possession of a trustee for want of known cestuis que trust. An escheat of such interests is provided for by the Act of 17th April 1869, Pamph. L. 1869, 71, Purd. Dig. 612; but this act, like that of 1833, is silent as to its own enforcement, and the same difficulties which arise in the attempt to enforce one, also arise in the other. The court held, in these cases, that the Act of 1869 could not be enforced under the Act of 1787, on account of the outstanding possession of the trustee.
    If, therefore, Cecilia Erben died without “seisin or possession,” the jury of inquest had no authority to find that an escheat had occurred, and without the finding of an inquest under the Act of 1787, confirmed by the court, the Commonwealth has no authority to proceed whatever: Crawford v. Commonwealth, 1 Watts 480.
    Whichever alternative is accepted, there can be no recovery. If Cecilia Erben died “seised or possessed,” the statute runs. If she did not, the entire proceeding is without warrant, and the claim under the Act of 1833 cannot be enforced.
    3. As Cecilia Erben’s interest was personal property, it is clear that she died without seisin, and as it was a remainder, it is equally clear that she died without actual possession. *
   Mr. Justice Woodward

delivered the opinion of tne court, May 5th 1879.

Henry Sell died in 1842. By his will, executed on the 2d of November 1841, he devised his real estate to George M. Stroud as trustee, directing that it should be leased; that $300 of the rents should be paid annually to his wife during her life, and that the residue should be paid to his parents and the survivor of them during the natural life of such survivor. Upon the death of his father, mother and wife, the testator required that the trustee should sell the land, pay $500 of the proceeds to a nephew, and distribute the remainder amongst his brothers and sisters then living, and the children of such of them as should be dead. By a codicil the share w’hich his brother Charles would have taken under the will was given to Cecilia Erben, an adopted daughter. William E. Naile, the defendant, became the successor of Judge Stroud in the trust. The mother of the testator died in June 1876, his seven brothers and sisters all then surviving. Immediately after the mother’s death the land was sold for $15,500. The trustee filed his account in the Orphans’ Court, and although it has not been finally adjudicated, a balance of about $11,500 is in his hands awaiting distribution. Cecilia Erben died on the 26th of July 1852, a minor, intestate, unmarried and without known heirs or kindred. The fund to which, if living, she would be entitled is claimed as an escheat by the. Commonwealth, and the claim is resisted, first, on the ground that more than twenty-one years elapsed after the legatee’s death before any proceeding by inquisition wras begun, and the Commonwealth is therefore barred under the provisions of the Act of the 16th of December 1869; secondly, because there has been no adequate provision made by law for the escheat of such property, it being an interest held in remainder; and thirdly, because no existing law authorizes or warrants the escheat of an interest held in trust.

1. There can be no doubt that if Cecilia Erben had lived until the death of the mother of Henry Sell she could take this fund. And there is no doubt that while the legatees for life survived she could assert no claim to it whatever. It was an interest the title to which vested the moment Henry Sell died. It could vest in possession only on the happening of the contingency anticipated by the will. As the legatee could not have taken one step while the trust was in existence, it is not apparent how the Commonwealth, her successor in the title could have moved. Indeed, the rules laid down in West’s Appeal, 14 P. F. Smith 186, and in West v. The Pennsylvania Co. for Insuring Lives, Id. 196, would have been fatal to an inquisition if one had been attempted. Manifestly, this case is not one to which the provisions of the Act of the 16th of December 1869, could have been intended to apply. That was an act to settle titles to property — lands or chattels perhaps, but some actual, existing, concrete thing — as against the right of the Commonwealth to proceed for an escheat after the lapse of twenty-one years from the decease of the owner. This legacy did not become “ property” in the statutory sense to which title by possession could have been acquired until the death of the last of the legatees for life. It was an interest the nature of which was defined, but the measure of which was incapable of ascertainment. The fund had and could have no existence as such when Cecilia Erben died. It has grown out of Henry Sell’s estate, but it is not “property” of which he was “the owner last seised and possessed.” Nor was the legatee such an owner. She would have become “seised and possessed” of it if she had lived until June 1876. At her decease the Commonwealth succeeded to the precise rights given to her by the testator. Judge Kennedy said in Crawford v. The Commonwealth, 1 Watts 480, “ It has been adjudged that a creditor, in case of his being unable to collect his debt of the administrator on account of his having committed a devantavit, may have an action upon the administration bond against the sureties by way of redress. This being the settled law where there are next of kin, it must be obvious to every one that where there are none, the Commonwealth having established her right by escheat, comes in lieu of them; and why shall she not be entitled to the same security and the same remedy that are given to the next of kin ? The Commonwealth in such case may well be considered ultima hamis, and as succeeding to all the rights and all the remedies of the heirs or next of kin in ordinary cases.” The Act of the 29th of September 1787, provided for the escheat of “any real or personal estate” of which any intestate without heirs or known kindred should die “ seised or possessed.” In the Act of the 16th of December 1869, the word “property” was employed in the sense in which the words “real or personal estate” were employed in the Act of 1787. In both instances the language designated the same classes of subjects, and the terms of neither of the statutes applied to such an interest as that under consideration here.

2. In the second place, it has been insisted upon in behalf of the defendant that no provision has been made by law for the escheat of an interest in remainder expectant on the determination of an estate for life. This is true while the life-estate subsists. But the Act of the 8th of April 1833, has provided for the escheat of interests that were not within the scope of the Act of 1787. The 12th section declared that in default of known heirs or kindred, widow or surviving husband, the real and personal estate of an intestate should go to and be vested in the Commonwealth by escheat. While a husband may not have curtesy in his wife’s estate in remainder unless the particular estate be ended during the coverture (Hitner v. Ege, 11 Harris 235), the interest of a wife in an estate in remainder vested in her husband stands on different ground. The right of the husband as tenant by the curtesy rests on the common law, and is excepted out of the- Statute of Distributions, while by the terms of that statute the wife takes an interest in all the real and personal estate of her husband. It was held accordingly in Cote’s Appeal, 29 P. F. Smith 235, that a widow was entitled to a distributive share of an estate in remainder vested in her husband ' at the time of his death, under the Act of 8th of April 1833, and that she had a right to partition under the Act of the 29th of March 1832, upon the determination of the estate of the tenant for life. This legacy was such part of “ the real and personal estate” of Cecilia Erben as would have gone, to her next of kin. She could have bequeathed it if she had lived to attain her majority, and her legatee would have the right to its possession upon the death of the elder Mrs. Sell. The language of the 12th section of the Intestate Act was broad enough to give the Commonwealth in 1876 the interest to which the legatee would have succeeded, and which her heirs, if she had left heirs, would have taken.

3. Another objection to the claim of the Commonwealth has been made on the ground that the interest of Cecilia Erben was held in trust. Without the Act of the 17th of April 1869, it is probable that this objection to a recovery would be fatal. The 1st section of that act made this provision : “ Whenever any cestui que trust has heretofore or shall hereafter die intestate, without heirs or any known kindred, a widow or surviving husband, the beneficial interest of such cestui que trust in any property or effects, real, personal or mixed, shall escheat to the Commonwealth, subject to all legal demands on the same.” Before the passage of the Act of Parliament which modified it, the rule of the English common law appears to have been, that where a cestui que trust died without heirs, the. trust did not escheat to the .crown, so that the lands could be recovered in a court of equity by the king; but the trustee should hold them for his own benefit: Burgess v. Wheate, 1 Black. Rep. 123. If no effect can be given to the Act of-the 17th of April 1869, such would possibly be the legal destination of this fund. It is true that here there is entire harmony between the brothers and sisters of the testator and the trustee. He does not question their right to the money. But cases might arise in which trustees would assert personal claims, and become, or attempt to become uliimi hceredes of dead legatees or devisees. West’s Appeal and West v. The Penna. Co., supra, have undoubtedly established the rule that a proceeding to escheat a fund, cannot be allowed to interfere with the management of an active trust. In the first of the two cases, Judge Agnew said that such a proceeding “ would displace the trustee who holds the legal title, is bound to use it to maintain the purpose of the trust, and whose title and control may have to remain in order to preserve the estate, and to protect ulterior, contingent or alternative interests.” In the second case, he said: “ There may be no difficulty in ascertaining the beneficial interest in the case of a dry trust, or of property in a specific form, or an unclaimed deposit or declared dividend; but such is not the case whore the trust is active, with a power to convert and collect, and when the beneficial interest can only be ascertained by a settlement and a decree of distribution.” The facts of those cases were intricate, and need not be recited. They showed an attempt to obtain control, by a proceeding to escheat, of funds in the hands and under the constant and active management of existing trustees. Upon such facts no other judgments than those entered would have been warranted. But those judgments are not applicable here. The Act of 1833 and the Act of the 17th of April 1869, were passed in view and in aid of the Act of 1787, which remains effective and unimpaired, except as it has been modified by later legislation. In this case, the machinery it provided can bo applied without strain and without hazard of mischievous consequences. By the sale of the testator’s land after his mother’s death the trustee became possessed of a sum of money equal to one-seventh of the net proceeds belonging to the proper representative of Cecilia Erben. The trust has ceased to exist. Its active duties ended with the sale. The trustee became the debtor of the distributees for the amount found due them in his hands. The eighth section of the Act of 1787 gave to the Commonwealth the right to recover “ by information of debt, intrusion, or action in the nature of trover and conversion, or on the case for money had and received against any person indebted to an intestate,” whose estate should have been found subject to escheat, and against any person dwelling within this state having in his possession “any part of the estate, real or personal, which was of such intestate, and not mentioned or included in the inquisition.” There has been no ascertainment of the exact amount of the fund in the trustee’s possession. It was agreed at the trial that it was about §11.500. But the jury have found in favor of the Commonwealth for Cecila Erben’s share of the amount. For that share, when the final adjudication shall be made, judgment can be entered on the verdict. “ An action for a legacy, being a substitute for a bill in equity, is to be so managed as to take effect without hindrance from common-law technicalities.” The court can control the execution or enter a special judgment: Seibert v. Butz, 9 Watts 490; Martzell v. Stauffer, 3 P. & W. 398. This involves no conflict between the Common Pleas and the Orphans’ Court, and no interference with or disturbance of the trust.

The judgment entered for the defendant non obstante veredicto is reversed; and it is now ordered and adjudged that judgment on the verdict be entered for the plaintiff on the point reserved.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Rafsnyder’s Appeal.
    Where a perpetual policy of insurance is assigned to a mortgagee as collateral security for the mortgage debt, he is entitled to the deposit premium if, upon a sale of the mortgage premises upon a foreclosure, there is not enough realized to satisfy said debt.
    January 23d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Woodward, TRUNKEYand Sterrett, JJ. Paxson, J., did not sit.
    Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 31. In Equity.
    This was a bill in equity filed by Peter 0. Hollis, surviving executor of Levi Dickson, against the Spring Garden Insurance Company and Edwin and Mary L. Rafsnyder. From the bill and answer it appeared that one Reinstein had perpetually insured certain houses in the defendant company, which houses had been mortgaged to one Altemus and the policies transferred to him as collateral security. These policies contained the following conditions :

      “ In all eases of sale of the property insured, where the policy is not transferred, the deposit money may be withdrawn by the depositor or his legal representatives, if applied for within sixty days after such sale, subject to a deduction of ten per centum; but if not applied for within that time, the said deposit money shall bo considered as sunk for the benefit of the company.”
    “ Mortgagees and others to whom any policy shall have been transferred as collateral security, cannot withdraw the deposit money on such policy.”
    Reinstein conveyed the houses to Mrs. Rafsnyder and gave her an assignment of the policies. Altemus assigned the mortgages and policies to Hollis, the plaintiff, who obtained judgment on writs of scire facias,, and the properties were sold by the sheriff for an amount which did not satisfy the mortgage debt. The bill prayed that the insurance company be decreed to pay to plaintiff the'deposited premiums less ten per cent., and offered to surrender the policies on payment of the money. Mrs. Rafsnyder, who was made a, party to the bill, also claimed these premiums. After argument upon bill and answer the court, Hare, P. J., delivered the following opinion :
    “ Reinstein insured certain houses which had been mortgaged to Alternáis, and transferred the policies to the mortgagee as a collateral security. He then conveyed the houses to Mary L. Rafsnyder, and she also received from him an assignment of the policies. The mortgages and policies were subsequently assigned by Altemus to the plaintiffs, who issued writs of scire facias which were prosecuted to judgment, and the mortgaged premises sold by the sheriff for an amount which did not satisfy the debt. The question before us is, who is entitled to the premium or deposit which was the consideration for the insurance ?
    “ The fund in controversy is claimed by the plaintiffs as the assignees of the policies and of the bonds and mortgagees which the policies were assigned to secure, by Mary L. Rafsnyder as the purchaser of the premises covered by the insurance; and finally by the Spring Garden Insurance Company, who, while alleging that her right is better than the plaintiffs’, ask to set off a demand against her growing out of an independent transaction.

      “ It results from what has been said that the controversy turns on the following point: Is a mortgagee, to whom a permanent insurance has been assigned as a security, entitled to the premium on a sale being made of the mortgaged premises which puts an end to his insurable interest and to that of the mortgagor ? There can be little doubt that the inquiry should receive an affirmative reply. It is well settled that an assignment carries with it every incident or accessory which is essential to the use or enjoyment of the thing transferred, or that will conduce to the attainment of the end which the parties have in view ; but the case before us hardly stands in need of this principle, because the right to rescind a contract and recover back the consideration is as much a part of the contract as the right to the amount which will be due if the contract goes into effect, and may equally well be exercised by one to. whom the contract is assigned.
    “ The soundness of this reasoning was virtually conceded during the argument, but it was alleged to be inapplicable to [the case in hand. Agreeably to the view taken for the defence, the assignment under which the plaintiffs claim, was designed to indemnify them as mortgagees against loss by fire, and their right under it ceased when the lien of the mortgage was divested by the sheriff’s sale. This argument might be entirely just if the insurance were of their interest as mortgagees, or if an insurance effected by a mortgagor became an insurance of the mortgage on being transferred to the mortgagee. It is, however, clear on authority and principle, that such a transfer does not alter the effect or nature of the policy, which remains as it was at first an insurance of the mortgagor’s estate as the equitable owner of the premises, and that what the mortgagee acquires is not an interest in the insurance as such, but a right to appropriate the amount which may become due under the contract, to the payment of the mortgage debt. See The State Ins. Co. v.
      Roberts, 7 Casey 438; Carpenter v. The Washington Ins. Co., 16 Pet. 495, 512; Conover v. The Atlantic Ins. Co., 17 N. Y. 391; Macomber v. The Ins. Co., 8 Cush. 133; Hale v. The Mechanics’ Ins. Co., 6 Gray 169. In other words the transfer is made to him as creditor as well as mortgagee, and the effect is nearly if not quite the same as if he were merely an obligee, and had no specific lien. Hence an assignment of a policy of insurance as collateral security for a bond and mortgage will not be invalidated by the discharge of the mortgage lien, so long as the bond remains and is unpaid ; and if this is true as between the assignor and assignee it must be equally so. of one claiming by virtue of a subsequent assignment.
    “ It is no small argument in favor of the conclusion above indicated that it does exact justice among all the parties who have any right or title to the fund in dispute. The money is not only paid to the plaintiffs on account of the amount confessedly due to them on the bond, but it will go to discharge the liability which Reinstein and Mary L. Rafsnyder incurred by buying £ under and subject to’ the mortgage. Parties who deal with each other on a common basis, or in a matter in which all are interested, may reasonably be supposed to intend that the fruits of the transaction shall be appropriated in a way to be mutually beneficial, rather than to a purpose in which one or more of them are not concerned; and when there is no countervailing reason a court of equity will be guided by this presumption in distributing the fund. Such is the principle on which securities in the hands of the creditor are used to exonerate the surety, and those held by the surety to pay the debt; and it applies a fortiori in the present instance where the motive for depositing the premium was to secure the mortgagee, as well as to indemnify the owner of the premises, and here both objects are accomplished by awarding the money to the plaintiffs.
    ££ Relief is decreed in accordance with the prayer of the bill.
    “ And now, September 28th 1878, this cause having been argued by counsel upon bill and answer, it is decreed by the court:
    ££ 1. That The Spring Garden Insurance Company pay to Peter C. Hollis, surviving executor of Levi Dickson, deceased, the amount of the premium of the policies of insurance mentioned in the pleadings, less ten per cent., viz.: $252, with interest from January 1st 1877.
    “ 2. That the defendant pay the costs pf this suit.”
    The defendants assigned this decree for error.

      Charles Henry Hart, for Mrs. Rafsnyder.
    The learned judge who delivered the opinion of the court below, seems to have overlooked entirely that condition annexed to the policy which provides that “mortgagees and others to whom any policy shall have been transferred as collateral security, cannot withdraw the deposit money on such policy.”

      Yet this ivas as binding upon the mortgagees, when they took the assignment, as all the other conditions, and it has been held repeatedly that the conditions annexed to a policy are as much a part of the contract as though incorporated in the instrument, and that the assignee takes it subject to all the express stipulations contained in the policies: State Ins. Co. v. Roberts, 7 Casey 443; Buckley v. Garrett, 11 Wright 204 ; Fire Ins. Co. v. Williamson, 2 Casey 196; Desilver v. Mutual Ins. Co., 2 Wright 130; Ins. Co. v. Gottsman, 12 Id. 151; Bank v. Yerkes, 35 Leg. Int. 203.
    The policies of insurance were collateral only to the mortgages, and so expressed in the assignments, in the customary way, by the word “ mortgagees,” after the name of the assignees. Besides this, it is the conclusion of law drawn from the transaction: Buckley v. Garrett, 10 P. F. Smith 333.
    Such being the case, as soon as the mortgagees’ interest ceased by operation of the sheriff’s sale, their interest in the policies ceased also, and all rights under the policies reverted to Mrs. Rafsnyder : State Ins. Co. v. Roberts, 7 Casey 438.

      A. D. Campbell, for the Insurance Company.

      Q-eorge Junldn, for appellee.
    The assignment of the policy, as that of the mortgage, was to secure the payment of the debt. Until that is accomplished, the policy, and all it represents in value, must remain with the holders of the debt.
    The purpose of this provision manifestly was to prevent the holder of the collateral from withdrawing the deposit money, and leaving the houses uninsured. When the insurable interest has ceased, as in the present instance, the condition ceases with it. Getting the deposit now from the company, and applying it to the payment of the debt secured by it, is not “ withdrawing” it within the meaning of this provision of the policy.
   The judgment of the Supreme Court was entered, February 17th 1879,

Per Curiam.

Nothing can bo added to the opinion of the learned President Judge Hare in the court below, and upon that opinion we affirm the decree.

Decree affirmed and appeal dismissed at the cost of the appellants.


text:
    Ferree’s Appeal. Ritter’s Appeal.
    1. The ordinance of the city councils of Philadelphia of December 31st1 1862, which provides that before any contract for paving streets shall be entered into by the highway department, the person applying for the contract shall give notice of his intended application in two daily newspapers, &e., is repealed by the ordinance of December 23d 1874, reorganizing the highway department of said city.
    2. The ordinance of 1874 takes away from the property holders all choice in the selection of the contractor, and vests the power in the chief commissioner of highways.

    January 23d 1879.
    Before Sharswóod, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeals from the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1878, Nos. 11 and 12.
    Appeals of Abraham Ritter and Samuel P. Ferree, administrators of James B. Ferree, deceased, from the decree of the court dismissing the exceptions to and confirming the report of the auditor appointed to distribute the fund arising from a sheriff’s sale of real estate.
    Hannah R. Vogdes, sole executrix of John R. Vogdes, deceased, entered a judgment against James B. Ferree on a warrant of attorney annexed to a bond accompanying a mortgage secured on a lot of ground in the Twenty-fourth ward of the city of Philadelphia, and sold the same at sheriff’s sale, by virtue of proceedings had on this judgment. A portion of the proceeds of this sale were paid into court and an auditor appointed to distribute the same.
    These appeals are from the distribution ordered by the court of this fund.
    The other material facts will be found in the following opinion of Elcock, J., in the court below:
    “ The fund for distribution by the auditor was raised from sale by the sheriff under our writ, of certain real property, situate on Sycamore street, formerly called Silverton avenue, West Philadelphia. A claim was presented before the auditor by the city of Philadelphia to the use of William A: Shipps, against the defendant, amounting to $1194.57, for. the cost of paving the highway with rubble pavement in front of the property sold.
    “ The work was done under authority of an ordinance, approved December 15th 1874, which directs the chief commissioner of highways to enter into a contract with a competent paver for the paving of, inter alia, said streets, but requires no preliminary act upon the part of the chief commissioner or any one else.
    “ The auditor has refused to allow the claim, upon the ground that there was no preliminary advertisement before the awarding of the contract to said William A. Shipps, as required by the ordinance, approved December 31st 1862, which is as follows:

      “ ‘ Hereafter, before any contract for paving any street or streets shall be entered into by the highway department, the person or persons applying for such contract shall give notice of such application in two daily papers having the largest circulation, by three consecutive insertions, at least two weeks prior to the making of, such application ; such notice to set forth:
    £££1. The name of the contractor or contractors.
    ££ ‘ 2. The locality of the space or spaces intended to be paved, with the length of such space in lineal feet.
    ££ £ 8. The name and residence of each person signing for contractor, together with the number of feet owned or represented by each person so signing fronting on said streets.
    “ £4. To such notice shall be added an invitation to the owners of property to meet at the department of highways, at a certain hour on a given day, to show cause, if any, why such contract should not be awarded to the applicant.’
    “The important question now raised is, whether this ordinance was not repealed by the ordinance reorganizing the highway department, approved December 23d 1874.
    “By section 2 of that ordinance, ‘from and after January 1st 1875, the building and repairing of all bridges, culverts, sewers and inlets, the opening, grading, curbing, paving, repaving and repairing of all streets, roads, lanes, alleys and other highways of the city of Philadelphia, shall be under the' control, supervision and management of the chief commissioner of highways of said city.’
    “By section 10 the owners of property desiring to have the streets which shall pass through their property paved, shall apply to councils by petition, to which shall be attached a certificate of the district surveyor, that the petitioners are a majority of the owners of property between the points named. After an ordinance shall be passed for the paving of any street, it shall be the duty of the chief commissioner to award the contract for the same to a practical paver or pavers, regularly engaged in such business, and known to bo such: Provided, the security for the same shall be the same as is now' regulated by Act of Assembly : Provided, that any contractor failing to perform his work in accordance with the terms of his contract, shall be deemed a defaulter, and no bid shall thereafter bo received from, or contract awarded to, such defaulting contractor.
    “And by section 11, all ordinances or parts of ordinances, inconsistent herewith, be and the same are hereby repealed.
    “ The object of the ordinance of 1862 was to secure a competent paver to do the work, instead of awarding it to some person who might bid low enough in price, but be utterly ignorant of the mode of performing the work or of the materials to be used in it.
    “The necessity for the advertising under the ordinance of 1862 is therefore done away with, when, under the ordinance of 1874, it is made the duty of the chief commissioner to award the contract to a practical paver or pavers, regularly engaged in such business, and known to be such. And further, the alleged important facts stated in the ordinance of 1862 (much of it repealed by an ordinance of March 24th 1871), made necessary to advertise, are by the ordinance of 1874, directed to be set forth in the certificate of the district surveyor, which shall be attached to the petition to be presented to councils. *
    “The ordinance of 1874 therefore takes away from the property owners any choice in the selection of a contractor, and vests all power in the chief commissioner, who may enter into a contract immediately after the approval of the ordinance. Then why advertise under the form directed in the ordinance of 1862 ? It creates a new system of awarding contracts; directs by whom they shall be awarded, to whom as a particular class they shall be awarded, and the facts which petitioners for paving streets must lay before councils, where councils do not act of their own motion. It accomplishes the same object as the ordinances of 1862 by a different method.
    “ The inconsistency and repugnancy of the ordinance of 1862 to that of 1874, may be instanced where a contract had been awarded by the chief commissioner, since January 1875, to some competent paver, who immediately sets to work under his contract, and perhaps completes it in ten days. The contract having been awarded him, it would be an extraordinary rule of law to require him to advertise in the form of vthe ordinance of 1862, to notify property owners to assemble and show cause, within two weeks from the approval of the ordinance, why his contract should not be awarded him. It can hardly be supposed that after the contract had been awarded that any one else would be so frenzied in the support of any two newspapers as to invest money in any such advertisement; whilst the meeting of property owners, without aim or power, would be without cause to show.
    “We think there cannot be a clearer repeal of a precedent affirmative statute. There is such clear legislative intention shown in the words of the 'later ordinance to repeal the former that it comes within the rule of interpretation of statutes as ‘clearly repugnant and inconsistent.’
    “The case of City v. Fell, 81 P. F. Smith 58, has been strongly relied upon by the learned auditor, but, under the present views we take of the ordinance of 1862, it can have little application, as that. case was tried before the passage of the ordinance of 1874, and the work performed in 1870 ; besides, the work was performed under a special ordinance, the non-compliance with the terms of which destroyed the claim for the work.
    “ To maintain the doctrine ruled against this claim would produce intense hardship, for every contract, awarded for paving of streets in Philadelphia since January 1875, has been awarded in the view of the repeal of the ordinance of 1862; and to at one blow destroy every lien and annul every contract thus entered into, notwithstanding the work was honestly done, would be paving the way to a repudiation most immoral and terrible in extent. Solus popiili suprema lex.

    “ The exceptions are sustained, and the report is referred hack to the auditor for redistribution, in accordance with this decision.”

      M. Hampton Todd and Edward S. Harlan, for appellants.—
    Compliance with the requisites of the ordinance December 31st 1862 is necessary to create an obligation on the property owner to pay for paving: Fell v. Philadelphia, 31 P. F. Smith 58. This principle is equally applicable to paving contracts, whether ordinances authorizing them do or do not require the paver to be selected by the lot-holders. The property owner has the right in both cases to invoke the aid of the commissioner’s discretion in the selection of the paver.
    A statute will not be repealed by a more modern one, unless the latter expressly negative the former, or unless the provisions of the two statutes are manifestly repugnant: Broom’s Legal Maxims (7 Am. ed.) 27 ; Rix v. Borton, 12 Ad. & E. 470; Potter’s Dwarris 156; Street v. The Commonwealth, 6 W. & S. 209; Brown v. The County Commissioners, 9 Harris 37. A general statute without negative words will not repeal a previous statute which is special, although the provisions be different: Brown v. The County Commissioners, supra; Rounds v. Waymart Borough, 31 P. F. Smith 395; Wright v. Vickers, Id. 122.

      Henry Reed and Wm. W. Wilibanh, for appellees.
    The ordinance of 1862 was repealed before the ordinance was passed under which Shipps was employed by the commissioner. Millions of dollars’ worth of municipal improvements have been made without any question on the part of those who have paid for them of the fact of this repeal. The new Constitution of the state, of 1874, necessitated new legislation for the municipalities of the Commonwealth. This produced the Act of Assembly of 19th May 1874, which led to a reorganization of the department of highways in Philadelphia. This was effected by the ordinance of December 23d 1874, which expressly swept away all prior municipal legislation inconsistent therewith. The ordinance of 1874 made it the duty of the chief commissioner himself to select a competent paver, without any reference to the property owners.
    The facts required to be set forth by the applicant under the ordinance of 1862, are now required to be set forth by the district surveyor upon certificate.
    The ordinance of 1874 “creates a new system of awarding contracts. * * * “ It accomplishes the same object as the ordinance of 1862 by a different method.” Under it the chief commissioner may give a contract at once. How then could a competent paver, selected duly by him, be required to advertise for two weeks, in order that strangers might show cause why that should not be done which had already been done ?

       See City of Philadelphia, to use, v. P. & R. Railroad Co., ante, 314. — Rep.

   The judgment of the Supreme Court was entered February 17th 1879,

Per Curiam.

We affirm the decree in these appeals upon the opinion of the learned judge below, sustaining the exceptions to the auditor’s report.

Decree affirmed and appeals dismissed at the cost of the appellants.


author: Mr. Justice Sterrett

text:
    Dusenberry versus Bradley.
    A. filed a copy of original entries, wherein the charges were made against B. individually. In an affidavit of defence B. averred that the goods were purchased by a partnership, consisting of 0. and himself. The court allowed the record to be amended by inserting the name of 0. as a co-defendant, but no alias summons issued to bring 0. into court. The court then entered judgment for want of a sufficient affidavit of defence. Held, that this was error, that no such judgment could be entered against either or both defendants until 0. had been brought into court, by an alias summons, to which there had been a return either of served or non est inventus.

    January 23d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and-STERRETT, JJ.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1878, No. 139.
    Assumpsit by Thomas Bradley against J. H. Dusenberry, to recover for goods sold by plaintiff to defendant.
    The plaintiff filed a copy of original entries, wherein the charges for certain goods were made against J. H. Dusenberry. In an affidavit of defence, it was alleged that the goods had been sold to the firm of Dusenberry & Murphy, and not to Dusenberry individually.
    The court allowed the plaintiff to amend by adding the name of George Murphy as a co-defendant. The plaintiff then entered a rule for judgment, for want of a sufficient affidavit of defence, which the court made absolute. No summons issued to bring Murphy into court.
    The entry of judgment was assigned for error by defendant, who took this writ.

      A. S. L. Shields, for plaintiff in error.
    The charges were. against defendant individually, whereas the goods were sold to. the firm. The account must fasten a liability on defendant before he can bo made to deny its genuineness or set up a defence: Wall v. Dovey et al., 10 P. F. Smith 212. No effort was made to bring Murphy into court, and not having had his day therein, the entry of judgment was erroneous.

      Thomas J. Diehl, for defendant in error.
    Although but one defendant was served in this case, and judgment was given generally, it bound only the defendant who had been brought into court, and damages were assessed and execution issued against him only. In a suit against partners, some of whom only are served, though the plaintiff declares against all, he may, after the verdict, have judgment against those who appeared: Taylor v. Henderson, 17 S. & R. 453.
    When a plaintiff commences an action and declares upon a cause of action which may be sufficient by supporting it by proof, and files a copy of the instrument on which he relies, the duty lies on the defendant of discharging himself by affidavit of a sufficient defence: Karthaus Coal & Lumber Co. v. Given, 1 W. N. C. 366.
   Mr. Justice Sterrett

delivered the opinion of the court, February 3d 1879.

After the defendant Dusenberry had interposed the defence, that he and George Murphy were partners, in the name of Dusenberry & Murphy, and so known to the plaintiff at the time the goods were sold, and that these goods were purchased and used by the firm, it was quite proper for the court to allow the amendment, and make Murphy a party defendant in the suit. If Murphy had been in court, or if a writ had been issued and returned non est inventus as to him, the defence set up would have been fully met by the amendment; but he never had a day in court, nor was there any effort made to bring him in. Under these circumstances it was irregular to enter judgment against both or either of the defendants for want of a sufficient affidavit of defence. The plaintiff in error, who complained of the omission to join his partner as a defendant in the suit, had a right to have him brought in, if he was within the reach of process.

Judgment reversed, and a procedendo awarded


text:
    Powell versus Whitaker.
    A ground landlord has a lien for arrears of ground-rent, and where damages are awarded for the opening of a street through the ground, and there are arrears of rent, the lien of the ground landlord is entitled to priority over that of a judgment-creditor in a claim for said damages.
    January 23d 1879.
    Eeforé Sharswood, C. J., Mercur, Gordon, Paxson Woodward, Trunkey .and Sterrett, JJ.

      Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1878, No. 271.
    This was an amicable action of assumpsit wherein Robert Hare Powell and John C. Bradley, trading as Robert Hare Powell & Co., assignees of Thomas Gr. Cooke, were plaintiffs, and Robert Whitaker in his own behalf,' and Robert Whitaker, administrator of the estate of Edward C. Cooke, deceased, were defendants.
    A case was stated for the opinion of the court in substance as follows:
    On the 20th of November 1874, Thomas Gr. Cooke was seised in fee-simple, and in possession of a lot of ground situate at the southeast corner of York and Thompson streets, in the Nineteenth ward of the city of Philadelphia, under and subject to a yearly ground rent of $1200 per annum, issuing out of and. reserved thereon, and owned by Robert Whitaker in fee-simple.
    On the 20th of November 1874, there was duly approved an ordinance of the Select and Common Councils of the city of Philadelphia as follows:
    “ That the chief commissioner of highways be, and hereby is, authorized'and directed to notify the owners of property over and through which Loyal street, from Dauphin to York street, in the Nineteenth ward, will pass; that at the expiration of three months from the date of said notice said street will be required for public use. Provided, the owners of property in the vicinity of said street first file a satisfactory bond with the city solicitor, indemnifying the city against any greater amount of damages than $1000, and thereupon the said ordinance should become a law.”
    The chief commissioner of highways, on the 25th of November 1874, notified the said Thomas (5. Cooke that at the expiration of three months the said Loyal street, as the same would extend over and through the lot above described, would be required for public use.
    “On the 19th of April 1875, the owners of real estate in the vicinity of the said Loyal street filed a bond, duly executed according to law, conditioned for the payment of all damages which might be awarded by reason of the opening of the said street, in excess of $1000.
    “ The said Thomas Gr. Cooke, whilst still seised of the said lot in fee-simple, and in possession thereof, did on the 13th of April 1875, assign and transfer to Robert Hare Powell & Company, to whom he wvas largely indebted, and in consideration of his indebtedness, all his right, title and interest, claim and demand to and in any and all damages due him for and on account of the opening of Loyal street, as aforesaid, through his property aforesaid, and of the taking of the said property for public use, and of this assignment Edward C. Cooke then had notice.
    “ Proceedings, were tiren pending before a jury for the ascertainment and.assessment of the measure in money of the said damages; the said parties prosecuted their claim before the said jury; and thereafter the matter was so proceeded in, that a second jury was appointed in the premises, which jury, in 1876, duly made report of the measure of damages, and their report has been confirmed finally by the Court of Quarter Sessions. The sum of $450, as damages thus awarded, now remains on deposit to be received by that party hereto in whose favor the judgment of the court may be.
    “Prior to the reporting of said second named jury, the said Thomas Gr. Cooke, by deed delivered on the 13th day of August 1875, granted and conveyed the lot of ground, above described, to Edward C. Cooke, his son, in fee-simple.
    “ On the 13th of November 1875, the said Robert Hare Powell & Company, Robert Whitaker, and Edward C. Cooke agreed as follows: Whereas, the damages to be awarded for the opening of the said street are claimed to belong 'to Robert Whitaker, Robert Hare Powell & Company, and Edward C. Cooke, respectively, it is hereby agreed that the said parties shall unite in the proceedings for the immediate ascertainment and recovery of the said damages, and when ascertained and recovered the same shall be distributed as said parties may hereafter agree, or in default of agreement, as may be determined by due legal proceedings, the rights of each of said parties to be determined, as they are now are aided, by such legal proceedings as they respectively may now be entitled to take to protect or aid said rights, with like effect as if such proceedings, as might at this time be taken, had now been duly taken; it being hereby agreed that the parties hereto shall be in no manner prejudiced in their said rights by this agreement.
    “ Thereafter the said Edward C. Cooke died, and letters of administration of his estate were granted to the said Robert Whitaker.
    “ Robert Whitaker, September 18th 1875, brought an action of covenant against Frederick Ladner and Thomas (I. Cooke, in the Court of Common Pleas, for Philadelphia county, No. 2, to September Term 1875, No. 408, to recover the arrears of said ground-rent then duo from February 1st 1872, to August 1st 1875, inclusive, with interest; and on the 19th of October 1875, recovered judgment therein for $4638.30 against the said defendants; and the said premises were sold by the sheriff upon execution on said judgment, on the first Monday of December 1875, to the said Robert Whitaker, for $1000, whereof he received $626.03 on his said judgment.
    “ The said Robert Hare Powell & Company claim that, as assignees as aforesaid of the said Thomas (x. Cooke, they are entitled to the moneys paid in satisfaction of the damages sustained by reason of the opening of the said Loyal street.
    “ The said Robert Whitaker claims that he is personally entitled to the moneys allowed; or that, should this not be so, the said moneys accrue to the estate of the said Edward C. Cooke, deceased, and should be paid to him, the said Robert Whitaker, as administrator thereof.
    “It is agreed that the record .of the Court of Quarter Sessions uf the proceedings for the ascertainment of the damages aforesaid, and the other records and papers herein referred to, may be used as evidence on the argument.
    “ If the court should be of the opinion that the said Robert Hare Powell & Company are entitled to the moneys in question, then judgment is to be entered for the plaintiffs for $450, otherwise judgment is to be entered for the defendant.”
    The court below (Ludlow, P. J.), in an opinion, said:
    “As the ground-landlord by his deed had a right of re-entry, he also had a lien for the arrears of rent due at the time the proceedings were had in this case: Bantleon v. Smith, 2 Binn. 146 ; Pan-coast’s Appeal, 8 W. & S. 381; Dougherty’s Estate, 9 Id. 189; Ter Hoven v. Kerns, 2 Barr 96; Mather v. MeMichael, 1 II. 301. And as a ground-rent is not apportioned by taking a part of the lot out of which it is reserved for a public highway (Workman et al. v. Mifflin, 6 C. 362), the landlord would be defenceless, if he could not in some way be protected by the courts. The method in which this may be done is clearly pointed out in the case last above cited. Says Strong, J., ‘The owner is a trustee for the lien-holders, and the courts will protect his rights.’
    “As road damages are to be applied to the discharge of liens upon land occupied by the road (Reese v. Addams, 16 S. & R. 40), and as these arrears of rent are largely in excess of the damages awarded, we are of the opinion that the landlord having priority of lien, is entitled to them.
    “Nothing need be said of the claim of the administrator, for the above opinion, by giving the landlord his rent, disposes of the case.
    “Judgment for defendant.”
    The plaintiffs took this writ, alleging that the court erred in entering judgment for the defendent, in the case stated, Robert. Whitaker, and in not entering judgment for the plaintiffs.

      Henry Peed and William W. WiltbanJc, for plaintiffs in error.—
    The owner of the property was deprived of nothing but the right of way, and the damages therefor were personal property : Chambers v. Furry, 1 Yeates 167 ; Lewis v. Jones, 1 Barr 336. And they became personal property the moment the conversion was worked which a taking of land involves: City v. Dyer, 5 Wright 470; City v. Dickson, 2 Id. 247; Ex parte Hawkins, 13 Sim. 569 ; 1 Lead. Cas. Eq. 841, 842; Cadman v. Cadman, L. R. 13 Eq. 470. Now the date of the taking was the date of the ordinance, November 20th 1874. Cook’s right to damages then became a personal right, and this personal right he assigned to Powell & Co., on the 13th of April 1875.
    Of the two judgment-creditors, we contend Powell & Co. should have the preference.
    The basis of the opinion of the court below is the doctrine that the ground landlord had a lien upon the damages awarded for the arrears of the rent. But such a claim could only be considered by the light of principles of equity, and could only be administered through equitable forms. It would be inequitable to allow Whitaker to prevail here, for two reasons:
    1. Because there would thus be thrown upon a fund representing the right of way over a small part of the entire lot the burden of the arrears of rent due for the entire property.
    2. Because even by the view of the court below, Whittaker has two remedies, one by distress and impounding, and tire other by an action on the personal covenant of the tenant; whilst Powell & Co. have but one, and they are deprived of the fruits of that one if Whitaker is allowed to prevail here, although Whitaker himself has still his action if this judgment is against him.

      George L. Crawford, for defendant in error.
    The ground-rent deed, the arrears whereof were the subject of the judgment of Robert Whittaker against Ladner and Cooke, is in the usual form with the clauses for right of re-entry and distress on default of payment, and the arrears are a lion without judgment: Bantleon v. Smith, 2 Binn. 146; Pancoast’s Appeal, 8 W. & S. 381; Dougherty’s Estate, 9 Id. 189 ; Ter Hoven v. Kerns, 2 Barr 96; Mather v. McMichael, 1 Harris 301.
    The damages for the opening of streets, sustained by the owner of land, is in Pennsylvania, in equity, appropriable to the liens on the land at the time of the assessment, and in case of accruing arrears of ground-rent, sufficient of the damages may, in equity, be impounded to meet the arrears; though in this case the existing arrears of rent, at the time of the assessment of damages largely exceeded the whole fund: Noble street, 1 Ash. 276; Cresson’s Estate, 4 P. L. J. 468; Workman v. Mifflin, 6 Casey 371; City v. Dyer, 5 Wright 463; Makinson’s Estate, 8 Phila. R. 381; Voeghtly v. Pittsburgh Railroad Co., 2 Grant 243; Williams v. Railroad Co., 22 Leg. Int. 29.
   The judgment of the Supreme Court was entered, February 17th 1879,

Per Curiam.

We affirm this judgment on the opinion of President Judge Ludlow in the court below.

Judgment affirmed.


author: Chief Justice Sharswoob

text:
    Moore’s Appeal.
    Jhe °lause in a deed of conveyance “ under and subject,” to a mortgage or other encumbrance, is a covenant of indemnity only as between grantor grantee for the protection of the former, unless-there is an express agreement to pay the encumbrance, or an agreement can be implied from the circumstances.
    2. The words “ under and subject” import that the vendee takes the land encumbered, and, at most, that on taking it an agreed consideration, which includes the encumbrance, he will indemnify the vendor to the extent of that consideration, in the same manner as if it had been paid in cash and so applied at the time.
    January 24th 1879.
    Before Sharswood, 0. J., Mercur, Gordon, Paxson, Woodward, Trtjnkey and Sterrett, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1878, No. 50.
    Appeal of Alfred E. Moore, administrator, and one of the heirs-at-law of W. E. Moore, deceased, from the decree of the court dismissing his exceptions to and confirming the adjudication, upon the account of said administrator.
    Before the auditing judge it appeared, that the decedent purchased from Andrew M. Moore a house and lot on Spring Garden street. The deed was dated Eebruary 12th 1877, and the consideration named in it was $9500. The habendum contained these words: “ Under and subject, nevertheless, to the payment of the aforesaid mortgage, debt or principal sum $8500, and the interest due and to grow due thereon.” The receipt at the foot of the deed was for $9500, being the full consideration. The value of the property clear of encumbrance was $18,000.
    The property was originally conveyed by James Lyon, subject to the mortgage to Andrew M. Moore, the grantor of decedent. The mortgage was dated April 23d 1874, payable in five years.
    The decedent died intestate, leaving a widow, mother and collateral heirs. The administrator, in his account, took credit for the payment of $255, paid by him for six months’ interest on the mortgage accrued after the decease of the decedent. He also claimed, being a brother and heir-at-law of the decedent, that the principal of the mortgage of $8500 should be paid out of the personal estate in his hands as a debt due by the intestate.
    Ashman, J., the judge who audited the account, disallowed the credit of $250 interest paid on the mortgage, and refused to direct the payment of the principal of the mortgage debt out of the personal estate in the hands of the administrator, on the ground that the decedent was under no personal liability to pay the mortgage. The court in banc subsequently dismissed the exceptions filed to this adjudication and confirmed the same, and from this decree this appeal was taken.

      Greorge W. Thorn, for appellant.
    Where realty is conveyed expressly subject to a mortgage debt recited in the conveyance, the debt becomes the personal one of the vendee: Keyzey’s Case, 9 S. & R. 71; Campbell v. Shrum, 3 Watts 60 ; Blank v. German, 5 W. & S. 36; Hoff’s Appeal, 12 Harris 201; Woodward’s Appeal, 2 Wright 325; Burke v. Gummey, 13 Id. 518; Lennig’s Estate, 2 P. F. Smith 135; Taylor v. Preston, 29 Id. 436.

      J, Gf. Johnson, for appellees.
    There were no special circumstances here to raise a covenant to pay this encumbrance, and it therefore amounts simply to a,n indemnity to the vendor : Cumberland v. Codrington, 3 Johns. Ch. 229; Tankerville v. Fawcett, 2 Brown C. C. 57; Billinghurst v. Walker, Id. 604; Evelyn v. Evelyn, 2 P. Wms. 659; Wilson v. Earl of Darlington, 1 Cox 172; Lawson v. Hudson, 1 Brown C. C. 58 ; Oxford v. Rodney, 14 Ves. 417; Keyzey’s Case, supra; Shoenberger v. Hay, 4 Wright 132; Walker v. Physick, 5 Barr 193; Mansell’s Estate, 1 Pars. 370.

       See Samuel v. Peyton, post, 465. — Rep.

   Chief Justice Sharswoob

delivered the opinion of the court, March 3d 1879.

The personal estate of a docodent is the primary fund for the payment of his debts. One reason and perhaps the controlling one for this rule is, that the personal estate has been increased by means of them, and his intention is therefore presumed to be that it should bear the burthen, unless he has expressed a contrary intention by his will. If therefore he has encumbered his land, the heir or devisee is entitled to call upon the personalty for exoneration. Where, however, his land has been purchased, encumbered by the debts of a prior owner, this reason does not exist and cessante ratione eessat el ipsa lex: Keyzey’s Case, 9 S. & R. 71. Yet if he has made himself directly liable for the debt for which the encumbrance was created, there the exception docs not apply, but the general rule prevails: Lennig’s Estate, 2 P. F. Smith 135. It seems, however, that indemnifying his vendor against, being called on to pay the debt upon the land proving to be insufficient, is not an act which makes him personally liable to the creditor and thereby throws the debt upon the personalty: Evelyn v. Evelyn, 2 P. Wms. 664, note by Cox. A more covenant by the purchaser of a mortgaged estate to indemnify the vendor doeanot make it his personal debt: Wood v. Huntingford, 3 Ves. 131. These cases have been recognised by this court in Hoff’s Appeal, 12 Harris 204.

The decedent in his lifetime purchased a house and lot for $9500 and the habendum contained these words: “ Under and subject nevertheless to the payment of a mortgage debt of $8500.” The receipt at the foot of the deed was for “ $9500, being the full consideration.” The value of the property, clear of the encumbrance, was $18,000. The question then is, did the decedent make this mortgage debt his own so as to entitle'his heir to call upon the personal estate to exonerate the land ?

An examination of the cases which have been decided on the legal effect of such a clause' in a conveyance, shows, we think, that unless there exist special circumstances to raise a covenant to pay the encumbrance, it amounts only to an indemnity to the vendor; in the language of the opinions “ the vendee makes the debt his own as between him and the vendor for his protection.” “We have no cases,” says Mr. Justice Strong, in Burke v. Gummey, 13 Wright 518, “ that are not reconcilable with the doctrine that one who purchases expressly subject to an encumbrance, as between the vendor and himself, makes the debt his own and assumes to protect the vendor.” Blank v. German, 5 W. & S. 36 ; Walker v. Physick, 5 Barr 193 ; Keim v. Robeson, 11 Harris 456; Academy v. Smith, 4 P. F. Smith 130 ; Taylor v. Preston, 29 Id. 436. Wherever it has been construed as a covenant to pay the encumbrance, which can enure to the use of the encumbrancer and on which he can sue, either in his own name or that of the vendor, there has been an agreement to pay, either express or implied, from the circumstances. Such an implication arises in most cases where there is a sale by a vendee under articles subj ect to the payment of the unpaid purchase-money. Thus, in Campbell v. Shrum, 3 Watts 60, Mr. Justice Sergeant says, “herethe principal consideration for Shrum’s agreement to transfer to Campbell was that Campbell should discharge the arrears due by Shrum for the land, and relieve and exonerate him from his liability therefor.” Such was Metzgar’s Appeal, 21 P. F. Smith 330. The conveyance was subject to a dower and the yearly interest to be paid to the widow and payable after her decease to the heirs. In Taylor v. Preston, 29 P. F. Smith 436, also a sale of land held under articles, there was evidence that the grantees were to pay $20,000 and assume all the back payments. In Hoff’s Appeal, 12 Harris 200, in the receipt subjoined to the conveyance it was stated that the payment in hand, and the mortgage debt and interest due and to grow due thereon, “ to be paid by the said John Hoff,” the grantee, was the consideration for the premises. In Lennig’s Estate, 2 P. F. Smith 135, the property was purchased for $57,000, which sum the contract stated included the two mortgages of $12,000 and $25,000. Woodward’s Appeal, 2 Wright 322, much relied on as establishing a personal liability, only decided that where a guardian, by authority from the Orphans’ Court, purchased land at the request and for the use of his ward, and took the conveyance under and subject to a mortgage, that court as ■ a court of equity would protect her from possible eventual responsibility to the vendor, by ordering the mortgage to be paid out of the ward’s personal estate, though the consequence was that the land descended to the heir unencumbered. It was expressly said in the opinion by Mr. Justice Strong, in that case, “It is of no importance now to inquire whether Mr. Woodward, by taking a deed from Mr. Spackman for the Arch street house “ subject to the mortgage thereon,” assumed the debt as between the grantor and himself, or whether she only engaged to indemnify him against being called upon to pay it. If it was either, it was a liability incurred in behalf of her ward, and a liability incurred in obedience to the directions of the Orphans’ Court.”

Why should a covenant be inferred from these words by the vendee to the vendor to do more than protect the latter from loss ? If there is no existing personal liability in the vendor by reason of his bond or promise under which he can be compelled to pay if the mortgaged premises prove insufficient, what reason is there that he should exact a covenant from his vendee for the benefit of a stranger ? If such personal liability does exist why should he exact anything more than indemnity ? Surely then something should appear to create the inference of such a covenant. The words “ under and subject” import lío such thing. They import that the vendee takes the land encumbered, and at most that so taking it, at an agreed consideration, which includes the encumbrance, he will indemnify the vendor to the extent of that consideration, in the same manner as if it had been paid in cash and so applied at the time. It is unwise to give an arbitrary, artificial meaning to words commonly used in contracts and conveyances, and thus entrap parties into engagements into which they had no reason to suppose, in the common use of language, they were entering. The Act of Assembly of June 12th 1878, Pamph. L. 205, has very wisely provided that the grantor shall not be personally liable unless ho shall expressly assume such liability by agreement in writing, or condition in the conveyance.

Wo think the conclusion at which the auditing judge and the court below arrived was right.

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


author: Mr. Justice Merche,

text:
    Spackman versus Steidel et ux.

    An action for damages will not lie for the obstruction of a right of way, alleged to have arisen from an implied covenant contained in a reference in a deed to a street as a boundary, where possession of such street was never given or taken under the deed, and the owner had built thereon and had exclusive possession thereof for more than twenty-one years before suit brought, without any denial of title.
    January 24th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 16.
    Trespass by Herman Steidel and Julia, his wife, in right of said wife, against Morris Spaekman to recover damages for an alleged obstruction of a right of way.
    On March BOth 1850, Josiah Leeds conveyed to Burton & Banning a lot of ground at the northeast corner of Sixth street and Columbia avenue, one hundred feet on Columbia avenue; thence northward along a twenty-feet street, forty-seven feet; thence eastward alone the head of the said twenty-feet street to a point; thence northward; thence westward to Sixth street; thence to the place of beginning, together with the soil of the said twenty-feet street. On the 7th of June 1850, Burton & Banning purchased from Leeds another lot of ground, on the north side of Columbia avenue, one hundred and twenty feet east of Sixth street, extending northward along the east side of said twenty-feet street forty-seven feet; thence eastward ninety-five feet six inches; southward forty-seven feet; and thence westward to the place of beginning, with the use of a three-feet wide alley on the north, extending into Randolph street.
    Burton & Banning thus being the owners of two hundred and fifteen feet six inches of land fronting on Columbia avenue, extending from Sixth street east, to what is now Mifflin street or Randolph street, and running north ninety-eight feet, having purchased by various conveyances not only the soil of this twenty-feet street, but all the land surrounding, built a large factory for the manufacture of paper hangings in the year 1850, and fenced'in the lot for one hundred and twenty feet east from Sixth street, which included the twenty-feet street mentioned, and used it in common with all the land for the purposes of their extensive business. To the east of this one hundred and twenty feet was a row of brick houses, which had been built by Yankirk & Leeds, then partners, some forty or forty-five years ago. These houses built upon part of the two hundred and fifteen feet six inches owned by Burton & Banning, were occupied by their workmen. The westernmost of these houses, (now the plaintiff’s), had a solid wall on its western "side, and no openings of any kind for light, air, egress or otherwise, had been made or were ever afterwards made.
    Leeds, the grantor of Burton & Banning, having absorbed the soil of the twenty-feet street, had laid out before his conveyance to them a three-feet wide alley, to the rear of the houses, and had granted to such houses the use of the alley. Burton & Banning had their manufactory there for about fifteen years, when it was destroyed by fire. Subsequently deducing title from them, the defendant, Mr. Spaekman, bought all the land to the west and north of the houses running west to Sixth street, one hundred and twenty feet on Columbia avenue, and which includes the soil of the street spoken of, and built extensive improvements upon it.
    On the 28th of June 1854, Burton & Banning conveyed the houses to the east of the one hundred and twenty feet running to Mifflin or Randolph street to Henry Gerker, who had charge of these houses as their agent to collect the rents. In the deed to Gerker, the twenty-feet street was mentioned as a descriptive line, as follows:
    “ A lot of ground situate on the north side of Columbia avenue, at the distance of one hundred and twenty feet east of Delaware Sixth street; thence north along a twenty-feet wide street forty-seven feet to a three-feet wide alley; thence eastward ninety-six feet; thence southward forty-seven feet; thence westward ninety-five feet six inches.”
    On December 27th 1869, Gerker conveyed to Steidel (the plaintiff) “ a lot of ground situate on the north of Columbia avenue, one hundred and twenty feet east of Sixth street, thence north along the east side of a twenty-feet wide street, forty-seven feet to a three-feet wide alley; thence east thirteen feet ten and one-eighth inches; thence south forty-seven feet; thence west along Columbia avenue twelve feet eight and a half inches.” (This is the westernmost of the houses.) “ Together with any and all benefit which may now exist, or which shall hereafter accrue to the said premises, by reason of vacation or otherwise, of the said twenty-feet wide street, together with the privilege of the said three-feet wide alley.”
    The right to this twenty-feet street was the cause of the contention in this suit. It was not disputed that this twenty-feet street only existed upon paper, and was only known by reference to the deeds. It was not on the city plans. The mention of this twenty-feet street was a reference from the old deeds, by a conveyancer as a descriptive line or mark, and nothing more. The locus in quo had been in the exclusive use of the defendant and those under whom he claims for more than twenty-one years before suit; and when defendant was building, no objection was made by the plaintiff, nor was any complaint made until after the building had been completed.
    The plaintiff submitted the following point, to which is appended the answer of the court:
    That the said twenty-feet wide street being called for a boundary to the plaintiff’s lot in her title, she has, in law, a right to the use of the street, and if the defendant has infringed that right, then the verdict should be for the plaintiff.
    Ans. “ To this I say that this street, being her western boundary, there was an implied covenant to open it as a street — an equitable grant as an easement, and she has a paper title thereto, unless abandoned by her, or gained by the defendant under the Statute of Limitations.”
    The following are points of defendant, with the answers of the court thereto:
    1. The deed of Josiah Leeds and wife to Burton & Banning, dated March 80th 1850, passed to the vendees all the title to the alleged twenty-feet wide street, and by regular conveyances from said Burton & Banning, the title to the same became and is vested in the defendant.
    Ans. “That may be so; and I affirm this point, subject to the rights of the plaintiff, as I have explained in my general charge to you.”
    2. The subsequent deed, dated June 7th 1850, of said Leeds and wife to said Burton & Banning, conveying other premises one hundred and twenty feet east of Sixth street, with the use of a three-feet wide alley, and without mention of any right to the said alleged street, except for convenience as a westernmost boundary, was notice that no right to the soil of said street, or use for any purpose, was granted to those claiming under the said deed of June 7th 1850.
    Ans. “I refuse so to charge.”
    3. The mere mention in deeds of the alleged street as a boundary, if there was in point of fact no such street, gives to the plaintiff no claim or right against defendant of any nature and kind.
    Ans. “ This point I also refuse.”
    4. The undisputed evidence being that for more than twenty-one years prior to the institution of this suit, the western line of plaintiff’s property was and is a solid brick wall for most of the depth, without any openings for egress or ingress, or for light or air, and the small back yard being enclosed with a fence, without any opening to the west, coupled with the fact ^that no claim of right was made for over twenty-one years prior to the purchase by the defendant, is conclusive evidence to prevent a recovery by the plaintiff in this case.
    Ans. “ I decline so to instruct you, but I say these are .questions of evidence, and for you to consider, as I stated in my general charge.”
    5. The evidence being that the defendant and those through whom he derives title, having been in open, notorious, visible, adverse and exclusive possession for more than twenty-one years prior to this suit, the defendant has, by law, a valid title to the locus in quo.

    Ans. “ I do not intend to give you a binding instruction. If you find from the evidence such a possession, the defendant is entitled to a verdict.”
    6. Upon the whole evidence, the jury are instructed to find a verdict for defendant.
    Ans. “I decline so to instruct you.”
    In' the general charge the court, Ludlow, P. J., inter alia, said:
    “ This is an action brought to recover damages against the defendant, upon the allegation that he has closed up a certain street, and deprived the plaintiff of its use and enjoyment, and from light and air to her premises, which she claims as her legal right. * * *
    “ From all the evidence, it does not appear that this twenty-feet wide street was ever opened. It only existed on paper; and even as laid down on paper it opened into or led into nothing; it was even on paper what we call a blind alley.
    “ The plaintiff claims through divers mesne conveyances from Burton & Banning, and in them her property is described as bounded on its west side by a certain twenty-feet wide street. [This boundary not being a public street, no right to the fee ever passed; but the description in the deed calling for the boundary is an implied covenant that if the street constituting the boundary does not exist, it shall be laid out, and which operates as an equitable grant of the right of way, binding not only the parties, but third persons. This right cannot be lost by disuse or non-user; and the only questions of fact that arise are two :]
    “ 1. Whether the plaintiff and those under whom she claims did not abandon this right ?
    “2. Whether the defendant and those under whom he claims have had open, hostile and adverse possession for more than twenty-one years.
    “ I do not wish to go over all the testimony, but will merely indicate the prominent features. [The plaintiff has what is technically called the paper title, but every witness that has been examined . — I will not go over their testimony in detail — says that he never know and never heard of tho existence of such a street.] The place on the paper would locate it in a gully leading to an old stone-quarry. A number of witnesses, beginning with Mr. Vankirk, who, with his partner, Leeds, built the house of the plaintiff, a great many years ago, certainly more than thirty years, and Mr. Banning, who put up tho factory there in 1850, and many others whose names I do not now recall, testify that this locus in quo was fenced across up to the plaintiff’s house, and in the exclusive use and enjoyment by the parties through whom the defendant claims title, and by the defendant himself, for nearly thirty-five or forty years. In point of fact, it seems that no one knew or heard of the existence of this street until lately discovered as a boundary, in the deeds by the surveyor. In rebuttal the plaintiff called one witness, who said he thought the curb was turned at this point; but he was not positive whether the curb was turned or whether it was sunk to allow mules and teams of the defendant to pass over into his premises; while the defendant’s testimony shows that the curb is not turned, and is on tho same line, without turn, as it existed when first placed there by tho city authorities.”
    The verdict was for plaintiff for $125, and after judgment thereon, defendant took this writ and assigned for error the answers to the above points and the portions of the charge in brackets.

      JEdward H. Weil and Henry T. Coleman, for plaintiff in error.
    —The street in question was laid out on paper by old deeds nearly fifty years ago. It led to nothing, gave access to nothing, hut was merely a blind alley or cul de sac. Not being a public street, the owner of the soil of it and of all the land surrounding it, had the right to extinguish it, if it ever had an existence; and in no way could this be more effectually done than by placing upon record the conveyance of the soil, without reservation or burden of servitude. It is submitted that the deed to Gerber by Burton & Banning, is no implied covenant to open a street or alley which had never been opened, and which, not being a public street or highway, had been vacated and absorbed by its rightful owner: Union Burial Ground Society v. Robinson, 5 Whart. 18; Robinson v. Meyers, 17 P. F. Smith 17.
    While an easement would not become .extinguished by disuse, or lost by non-user, it is equally well settled that a denial of the title, or other act on the adverse part to quicken the owner, or an enjoyment inconsistent with its existence for a period of twenty-one years, amounts to an extinguishment: Erb v. Brown, 19 P. F. Smith 219; Lindeman v. Lindsey, Id. 100; Nitzell v. Paschall, 8 Rawle 82 ; Bombaugh v. Miller, 1 Norris 209.

      Thomas Gfreenbanlc, for defendant in error.
   Mr. Justice Merche,

delivered the opinion of the court, May 5th 1879.

This was an action of trespass on the case to recover damages for the alleged obstruction of a right of way. The land over which the defendants in error claimed the right, lies immediately west of and adjoining their lot; but in the adverse possession of the plaintiff in error. Both parties claim under title derived from Leeds. The claim of the defendants in error rests on an implied grant, by reason of their grantors having designated the western boundary of the lot as a twenty-feet street.

It is settled law in this state, that when a public street or highway is called for as a boundary in a deed, the grantee takes title in fee to the middle of the street, if the grantor had title to it, and did not expressly or by clear implication reserve it: Paul v. Carver, 12 Harris 207; Same case, 2 Casey 223; Cox v. Freedly, 9 Id. 124; Trutt v. Spotts, 6 Norris 239. Where the street called for a boundary is not a public highway, nor dedicated to public use, the grantee does not take title in fee to the centre of it, but by implication acquires an easement or right of way only over the lands: O’Linda v. Lothrop, 21 Pick. 292; Robinson v. Myers, 17 P. F. Smith 9.

It appears that the existence of the street in question, had been recognised on paper, at an early day; but it was not on the city plan, and had no marks or signs on the ground designating it. It was referred to by Leeds in his deed of 1850, under which the defendants in error claim, as a twenty-feet street; but as the learned judge says, in his charge to the jury, “it does not appear that it was ever opened. It only existed on paper, and even as laid down on paper, it opened into, or led into, nothing; it was even on paper what we call a blind alley.” Wo have not been furnished with all the evidence, but the judge further said: “ A number of witnesses, beginning with Mr. Vankirk, who, with his partner, Leeds, built the house of the plaintiff (below) a great many years ago, certainly more than thirty years, and Mr. Lanning, who put up the factory there in 1850, and many others, whose names I .do not now recall, testify that this locus in quo was fenced across up to the plaintiff’s house, and in the exclusive use and enjoyment of the parties, through whom the defendant claims title, and by the defendant himself, for nearly thirty-five or forty years. In point of fact, it seems that no one knew or heard of the existence of this street, until lately discovered as a boundary in the deeds, by the surveyor.” The correctness of this statement of the testimony was not questioned on the argument. Wo see nothing to contradict it. Thus it appears not only that this “ blind alley” was never opened, but that from 1850 down to the commencement of this suit in 1870, it was enclosed by a fence and used in common with the other lands by the plaintiff' in error, and by those from whom he derived title. No denial of that right to the exclusive use appears to have been made by any claimant of the title of the defendants in error, during all that time. It is not shown that the defendants in error, or their predecessors in title or possession, ever had any openings for egress or ingress into this alleged alloy, or for light or air.

The question now presented is, whether the defendants in error can sustain this action under an implied covenant made more than twenty-one years before suit brought, when no possession was ever given or taken under the deed. This suit is not between any of the parties to that deed. It is not an action of covenant based on the contract. It is for a tort. The claim to recover rests on the alleged tort of the plaintiff in error, in erecting and maintaining extensive buildings on the land claimed to be a street. The view we take of the case, makes many of the questions relating to an action of covenant irrelevant, and we therefore refrain from considering them. The complaint of the defendants in error is not for the disturbance of an easement once enjoyed, but substantially to recover in an action ex delicto for damages to a right, based on an implied covenant, of which they never had any possession. After this great lapse of time, we think the present action cannot be sustained under the whole evidence, and the jury should have been so instructed. The sixth assignment is therefore sustained. It is unnecessary to consider the others any further than they are covered by what we have already said.

Judgment reversed.