author: Gordon, J.:

text:
    October and November Term, 1884,
    No. 118.
    October 31, 1884.
    Courtney v. Keller et al.

    1. A grant of land in fee to a school-board provided “ that in ease the school law now in existence should be abolished, and the public school cease to exist,” the land should revert. The school-board subsequently purchased another lot, removed a portion of the school-building, fitted up the remainder as a dwelling, and leased it to their janitor for a money rental.

      Held in ejectment by the assignee of the heirs of the grantor that the design of the deed was not to enable the directors to raise a revenue, by building dwellings upon the lot and renting them; but that the intention of the parties was fully interpreted and fulfilled when a schoolhouse was erected; and that when there was an abandonment of the use the right ceased.
    2. The word “ or ” should be read for the word “ and ” in the clause of the deed which says, u that in case the school law now in existence should be abolished, and the public school cease to. exist,” then the hind should revert.
    Before Mercur, C. J. ; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny County.

      ■ Ejectment by James M. Courtney against Benhart Keller and the board of school-directors of the school-district of Kilbuck township for 16-^j- perches of land in Kilbuck township.
    On the trial before White, J., the following facts appeared : The lot in dispute had been used for school purposes, with the consent of its owner, Wm. Courtney, by the board of school-directors of Ohio township, from about the year 1838 up to the date of Wm. Courtney’s death in 1853. The title to the lot then vested in Margaret Courtney, who, on October 21,1861, at the request of a committee of the school-board, appointed for the purpose, executed and delivered .to the “school-directors of Ohio township and fheir successors in office,” a deed for the same, which contained the following provision :
    “The above-described lot is for the use of a public school, known as school No. 6, in Ohio township; and it is further agreed, by the above-named parties, that in case the school law now in existence should be abolished, and the public school cease to exist, then the above-recited lot shall revert back to the parties of the first part, their heirs and assigns, but the house and buildings thereon shall be the property of the parties of the second part, and be sold as such, to be removed in thirty days after day of sale.”
    In 1868, Ohio township was divided into two, and the lot in question fell to the school-board of Kilbtrck township, who continued to maintain a school-house upon it until 1882, when they purchased a lot of ground distant some one hundred and fifty yards from the old lot, removed a portion of the school-buildings to the new lot, fitted up the remainder as a dwelling-house, and rented' the same to their janitor, one of the defendants in the ejectment, for five dollars per month. The district schools continued to be carried on exclusively upon the new lot. Prior to this time, in 1864 and 1871, the heirs of Margaret Courtney (who had died unmarried and intestate June 13,1862,) had conveyed, by several deeds, all their interest in the lot in question to James M. Courtney, the plaintiff in the ejectment.
    The Court charged the jury as follows :
    If the jury find the following facts :

      “First. That the lot in dispute was originally given by parol by the father of Margaret Courtney for school .purposes, on which a school-house was erected and used for school purposes many years before the title vested in Margaret Courtney.

      Second. That when Margaret Courtney executed the deed of 21st October, 1861, she was of sound mind.

      T.hirdi That after the execution of said deed, another school-room was erected on said lot by the school-district, and both rooms were used for school purposes until Ohio township was divided in 1868, and after that used for the same purpose by the district of Kilbuck township until 1882, when a new school-house was erected for the same school-district on another lot purchased for the purpose about 150 yards distant from the lot in dispute.

      Fourth. That since the erection of said new school house the buildings on the lot in dispute have not been used for school purposes, one of them having been removed, and the other changed into a dwelling-house and occupied by the janitor of the school, under a lease from the school-directors of Kilbuck township.

      Fifth. That the lot has been abandoned for school purposes, that is, for holding school upon it, and is used and intended to be used only as a tenant house for the janitor of the schools.
    Then your verdict should be for the plaintiff for the lot-described in the writ, with six cents, damages and costs, subject to the opinion of the court in banc on the question of law reserved, to wit: whether under the deeds from the heirs of Margaret Courtney to the plaintiff, and the facts above stated, the plaintiff is entitled to recover, this action being commenced 22d October, 1883, and also subject to the opinion whether the school-district has a riglit to remove or sell the building now on the lot.”

      y erdict accordingly for the plaintiff.
    Subsequently, the court entered judgment for the defendant non obstante veredicto, filing the following opinion :
    “The deed of Margaret Courtney contains this provision ‘The above-described lot is for the use of a public school known as school No. 6, in Ohio township, and it is further agreed by the above named parties that in case the school law now in existence should be abolished and the public school cease to exist, then the above-recited lot shall revert back to the parties of the first part, their heirs or assigns; but the house and buildings thereon shall be the property of the parties of the second part, and be sold as such to be. removed in thirty days after day of sale.’
    “The lot had originally been given by parol for school purposes by the father of Miss Courtney, on which a school-house had been erected and used for school purposes for more than twenty years before she executed the above deed. It is likely the school-district had a good equitable title in fee simple to the lot at the time the above deed was executed; but by accepting the deed and claiming under it, it may be bound by the condition in the deed.
    “What is the proper construction of the reversionary condition ? If it means that the lot shall revert as soon as the buildings cease to be used for holding schools in them, then the plaintiff is entitled to recover. Bu t if the district has a right to use the lot and buildings for any purpose connected with the school, the plaintiff cannot recover. Or if the condition refers only to the abolition of the school law, the plaintiff cannot recover.
    “The latter seems to us to be the true construction. Whether the school-district had the right to sell the lot and can make a good title to the purchaser need not be decided now. But while the house is occupied by the janitor of the school and used by Mm as a residence, it is still in use for school purposes in a general sense. That he pays rent is immaterial, for that goes to make up Ms salary as janitor. The school law has not been abolished, the public schools and the school of this district still exist, and this lot is still used in connection with the school of the district. Under these facts we think the plaintiff is not entitled to recover
    “ It is, therefore, ordered that judgment be entered for the defendants non obstante veredicto. And now, June 11, 1884, judgment accordingly.”
    Whereupon, the plaintiff took this writ, assigning for error, inter alia, the entry of judgment for the defendant non obstante veredicto, on the reserved question, the manner and form of reserving the question, the disposition thereof, and that the Court had undertaken to construe the deed from Margaret Courtney to the school-directors of Ohio township, the same not having been comprehended in the reserved question.

      Robb & Fitzsimmons for plaintiff in error.
    The clause in the deed, viz: “It is further agreed oy the above-named parties that in case the school law now in existence should be abolished and the public school cease to exist, then the above-recited lot shall revert back to the parties of the first part, their heirs or assigns, but the house and buildings thereon shall be the property of the parties of the second part, and be sold as such, to be removed in thirty days after day of sale,” comprehends a reversion of the lot of ground when the same may be abandoned for the keeping of a school-house for the education of the youth of the district. We submit this is the proper construction of said deed. The special verdict of the jury, rendered under the care of the court, found that the premises were abandoned for “school purposes.” The term “school purposes,” if it means anything, should mean the legitimate purposes of school districts, viz: for the erection, maintenance, or keeping of school-houses. It surely does not mean that the school-district shall purchase and retain property for speculative or rental purposes. The verdict of the jury establishes the fact that the property is held for the maintenance of a tenant house, and for no other purpose. We contend that this is clearly contrary to public policy. The conjunctive “and” between the two clauses, “That in case the school law now in existence should be abolished,” and the clause, “The public school cease to exist ” should be read as the disjunctive “or.” This would make a very proper and important change in the construction of the deed. This change would make the conditional clause read thus : “That in case the school law now in existence should be abolished, or the public school cease to exist, then the above-recited lot shall revert back to the parties of the first part, their heirs or assigns.” That these” clauses should be construed as though the disjunctive “or” were written rather than the conjunctive “and” is evident by the succeeding clause. “But the house and buildings thereon shall be the property of the parties of the second part, and be sold as such, to be removed in thirty days after day of sale.” If the school law should be abolished, and the public school cease to exist, why provide that the house and buildings thereon should be sold by the school-district when the same should be no longer in existence? Now, the exact propositions offered to be proved by the plaintiff, as comprehended in the assignments of error, were, that as soon as the public school law .should be abolished the land should immediately revert to the grantor, her heirs and assigns, or, if “ the public school cease to exist” as a school on said land, then there should be a reversion. If the property should only revert when the “school law now in existence should be abolished,” why add the clause, “ and the public school cease to exist,” when by the very fact that the school law was abolished the public school must of necessity cease to exist ?
    The Court, in reserving the question, in some way entirely overlooked the main question ,in the case. There was no dispute as to the validity of the deeds from Margaret Courtney’s heirs to the plaintiff. The construction of the deed of Margaret Courtney to the school-district forms no part of the reserved question.
    “ If a point of law be' reserved on the trial of a cause, the point and the fact upon which it arises must be stated upon the record in order to authorize the court to enter judgment non obstante veredicto: ’ ’ Irwin v. Wickersham, 1 Casey, 316; Wilson et at. v. Steamboat Tuscarora, 1 Casey, 317 ; Clark & Shaw v. Wilder, Id., p. 314; Wallingford v. Dunlap, 14 Pa. St., 31; Craven v. Gearhart, 1 W. N. of C., 257; Winchester v. Bennett, 4 P. P. S., 510 ; Wilde v. Trainor, 9 P. P. S., 442; Commonwealth v. McDowell, 5 Norris, 379.

      Henry A. Dams for defendants in error.
    The terms of the deed have á certain and definite, and a very reasonable and proper meaning.
    I cannot see why the plaintiff should cull out the word “awZ,” and insert the word “or,” in place of it. The event upon which the lot is to revert has not happened, and the lot is still used for school purposes. Even if defendants should cease to use it for the purpose for which the deed says it shall be used, and sell it or use it for any other purpose not in any manner connected with the schools, it would not revert to the grantor.
    The clause providing for the reversion of the lot does not provide for its reversion upon the grantees ceasing to usé it for the purpose directed, so the two clauses cannot be tacked together.
    A deed is to be taken most strongly against the grantor. An estate, upon condition, cannot be created by a deed, except where the terms of the grant will admit of no other reasonable construction: 2 Washburn on Real Property, 4.
    A condition .defeating the grant is to be strictly construed : 2 Bacon’s Abr., 279; 4 Kent’s Corns., 129 .and 132.
    It is a well-known principle of the English law that a grant declared to be for a special purpose, without other words cannot be construed to be a grant upon condition : 2 Coke on Littleton, 204 a; Shephard’s Touchstone. 123 ; Cowper v. Andrews, Nob., 41; Norfolk’s Case Dyer,. 138 a.
    And the law so declared has always been followed in America: Packard n. Ames, 16 Gray, 327; Thornton v. Trammell, 39 Ga., 202; Rawson v. Town of Uxbridge, 7 Allen, 125 ; Church v. Waring, 24 Pick., 304.
    November 13th, 1884.
   The opinion of the Court was delivered by

Gordon, J.:

In this case now presented for our consideration, there was, in the Court below, a verdict for the plaintiff for the land described in the writ, subject, nevertheless, to the opinion of the Court on certain reserved questions of law. When we turn to these reserved questions, we find them to be, first, whether, under the deeds of the heirs of Margaret Courtney to the plaintiff, James M. Courtney, he is entitled to recover. Second, whether the school-district has the right to remove or sell the buildings now on the lot. There is here, however, some mistake, for neither of the above questions entered into the controversy. The regularity of the deeds from the Courtney heirs to the plaintiff formed no part of the dispute, neither did the right of the' school-directors to remove the buildings. The real and only point of discussion left for the decision of the Court was whether, under the deed of Margaret Courtney to the school-directors of Ohio township, dated October 21, 1861, the grantees had the right to retain the occupancy of the property after it was abandoned for school purposes, and it was, in fact, upon the construction of this deed, and not on the disposition of the reserved questions, that judgment was entered for thé defendants. As the plaintiff exhibited an undoubted prima facie right to the possession of the lot of ground in controversy, we might, under the first'reserved point, reverse the court below and order a judgment on the verdict. As, however, this would leave .the real point in controversy undecided, we will, ex gratia, dispose of the question arising under the deed to the defendants. The subject of contention is found in a certain condition, in the above-named conveyance, which reads as follows: “The above-described lot is for the use of a public school, known as school No. 6, in Ohio township ; and it is further agreed by the above-named parties that in case the school law now in existence should be abolished, and the public school cease to exist, then the above-recited lot shall revert back to the parties of the first part, their heirs and assigns, but the house and buildings thereon shall be the property of the parties of the second part, and be sold as such, to be removed in thirty days after day of sale.” Now, whilst it must be admitted that the writer of this deed has not made the subject of which he was writing quite as perspicuous as he might have done, yet we think the intention of the parties is, after all, sufficiently expressed. The lot is for the use of a public school, known as No. 6, in Ohio township, and as public schools are not ordinarily maintained by rents from property owned by them, but by public taxes, we may take it for granted that the design of the deed was not to enable the directors to raise a revenue by building dwellings upon the lot and renting them to their janitor and others, but that the intention of the parties was fully interpreted and fulfilled when a school-house was erected thereon. But, clearly, if there had been no use of the lot for such purpose, the right could never have attached, and so, from the character of the grant itself, without reference to the condition, when there was an abandonment of the use, the right ceased. The obscurity arises from the language of the condition, but much of this disappears when we reflect upon the subject of the contract; that about which the parties were dealing. The district wanted a place for a “public” school-house, and Margaret Courtney was willing that her lot should be used for that purpose, but for no other; not for dwellings, nor for a private school; hence, when the law authorizing public schools should be abrogated, and, as a consequence, this public school cease to exist, the use was to fall and the right revert. ;But did this mean when such schools ceased to exist generally, or only the school or schools maintained on the lot in controversy ? Certainly, the parties were thinking and writing about the latter only, and not about a general system of education. The directors might, if they chose so to do, maintain a schoolhouse on the property in question as long as the general school law remained on the statute books, but as the grant was but for the one pürposé, if they chose to withdraw the schools, and abandon the use to which they were limited, their right fell, of course, and they could not claim the premises for a purpose not found in their deed. We have, therefore, no hesitancy about adopting that reading of the condition suggested by the counsel for the plaintiff; that is, the substitution of the word “or” for “and ;” thus : “In case the school law now in existence should be abolished, ‘ or ’ the public school cease to exist, the above-recited lot shall revert back,” &c. Impelled by t-hese considerations, we feel ourselves obliged to reverse the Court below, and. to order judgment to be entered on the verdict for the plaintiff. Ordered accordingly.


source: Caselaw Access Project

author: Sterrett, J.:

license: Public Domain

text:
    October and November Term, 1884,
    No. 210.
    Nov. 10, 1884.
    Craft v. Phillips.
    1. While it is not incumbent on the plaintiff in an action of deceit to show affirmatively that he himself is not to blame for the injury complained of, if it appears from the evidence on either side that his own neglect of duty or bad faith towards the-defendant has brought about or materially contributed to bring about the result of which he complains he should not be permitted to recover.
    2. In an action.of deceit founded upon the execution of a release by the defendant of certain lands, bought by plaintiff, from the operation of a deed of trust given to secure the payment of promissory notes, it appeared that at the time of the making of the release, some of the notes were not in the possession of the defendant, and that subsequently in proceedings by the owners to recover upon these notes the lands were sold. The release recited the sale to the plaintiff as of a prior date. Held that this recital was notice to the plaintiff that the release was executed by the defendant on the faith of information he had received, and in tlie belief not that the sale was then being negotiated or was dependent in any manner on the release, but that it had been fully consummated and the deed accepted.
    3. The plaintiff could not in good faith remain silent, and afterwards claim that it was given by defendant and accepted by himself as an inducement to purchase the lands and part with the consideration.
    4. A witness testified that he attended to the survey of the lands in. question, that he was there for two months, became well acquainted with the lauds, learned of actual sales of two thousand acres four miles away, and that what he heard of lands selling surrounding them, and .what the citizens there said that land was worth, was his only source of knowledge. Held that he was competent to testify as to their value.
    5. In an action of deceit the plaintiff called a witness who testified that at the time defendant executed the release of lands from a deed of- trust given to secure certain notes, defendant told him that he did not hold all of the notes secured by the deed, and that he, witness, explained the entire .transaction and everything within his knowledge to the plaintiff. The plaintiff was then called and asked whether the witness had told him that the defendant did not own the notes. Held that the testimony was properly admitted.
    Before Mercur, C. J.; Gordon, Trunkey, Sterrett, Green, and Clark, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny County. ■

    Case for deceit by Wilson Phillips against Charles C. Craft.
    ■ On the trial, Octbber 2, 1884. before Ewing, P. J., the following facts appeared: In 1876, J. C. Williams, of Pittsburgh, was the owner of three thousand nine hundred and fifty-four acres of land in Raleigh county, W. Va. Upon this tract of land Williams had, at the date of his purchase, given a deed of trust to Henry L. Gillespie, of Raleigh county, W. Va., to secure $6,000 of the purchase money. The deed recited that Williams was indebted to Charles C. Craft “in the sum of $6,000, for which amount he holds six promissory notes, each dated April 1, 1875, each for the amount of $1,000, ‘viz: One note at one year, one note at two years, two notes at three years, two notes at four years, said notes to bear interest at six per cent, per annum from date, two to the order of William Williams, and four to his own order, made payable at the Third National Bank.of Pittsburgh.”
    The deed further set forth that it was “given to secure the payment of the said recited notes, they being given to secure the balance of the unpaid purchase money.”
    In 1876, Williams entered into negotiations with Wil: son Phillips to exchange a portion of his lands in West Virginia for a half interest in a mill property which Phillips owned in Mercer county, Pa. On July 28,1876, Williams, by deed of that date, conveyed to Phillips, four hundred and eighty-four acres of the West Virginia lands, the deed reciting the same as nine hundred and ninety-nine and one half acres. On August 21, 1876, Williams called upon Craft and obtained his signature to the following release:
    “For value received, I, C. C. Craft, of Chartiers township, Allegheny county, State of Pennsylvania, do hereby release from incumbrances or deed of trust made by J. C. Williams to Henry L. Gillespie, of Raleigh county, W. Va., all that certain tract of land situate on the west side of the waters of the Piney river, and on the south side of Turkey creek, in Raleigh county, W. Va., containing nine hundred and ninety-nine and one half acres (999-J.) Being about the one-fourth part of a tract of three thousand nine hundred and fifty-four acres, which B. F. Ruff and wife, by deed of April 2, 1875, sold and conveyed to J. C. Williams, aforesaid. The same nine hundred and ninety-nine and one half acres, hereby released, being the same which J. C. Williams aforesaid, sold and conveyed to Wilson Phillips, of Mercer county, Pa., by his deed dated July 28, 1876, said deed being recorded in the Recorder’s Office in Raleigh county, W. Va., in Book D, pages 242 and 243, and I do further direct Henry L. Gillespie, trustee aforesaid, to release upon the proper record the land above described and conveyed to Wilson Phillips aforesaid.
    Witness my hand and seal, this 21st day of August, A. D. 1876.
    Chables C. Cbaet, [l. s.] ”
    This release was put on record on August 31, 1876, by Phillips. At the time it was given Craft held two of the notes given to secure the purchase money. Two others were outstanding, one being held by the Allegheny National Bank of Pittsburgh, and the other by the First National Bank of Pittsburgh.
    The lands were subsequently sold under proceedings instituted by the banks to recoyer the amount of these notes.

      Seth Hoadlane, a witness called on behalf of plaintiff, testified, inter alia, as follows:

      Direct examination by Mr. Shafer:

      Q. Where do you reside %

      A. Mercer county.

      Q. Were you in West Virginia at the time of this sale ?

      A. No, sir.

      Q. How soon after ?

      A. I presume within a month ; shortly after the sale— very shortly ; I can’t just recollect; perhaps less time.

      Q. You went down after the sale?

      A. Yes, right after the sale.

      Q. The foreclosure sale of 1879 ?

      A. Yes, sir.

      Q. When the land was foreclosed under the. bill in chancery ?

      A. Yes, sir.

      Q. What knowledge have you of the lands in West Virginia owned by Wilson Phillips ?

      A. What I heard of lands selling surrounding it, and what the citizens there said that land was worth at the time of the sale, is the only source of knowledge I have in regard to value.

      By Mr, Wood,ward:

      Q. You were just a visitor ?

      A. I was a visitor at oné time two months. I attended for them to surveying the land. I was just a visitor.

      By Mr. Shafer:

      Q. You were assisting in a survey of these lands ?

      A. Yes, sir; I attended to the survey of the entire land.

      Q. And you were there two months ?

      A. Yes, sir.

      Q. And you became well acquainted with the lands in controversy ?

      A. Yes, sir ; know every corner ; was at every corner.

      Q. You had conversations in regard to its valúe?

      A. Yes, sir; with the three surveyors that were along —Mr. Hutchinson, Mr. Wright, and Mr. Brickley.

      Q. And you know its value ?

      A. As far as that information would lead, I would think that I knew its value.
    By Thje Court :

      Q. Did you learn of actual sales in the neighborhood ?

      A. Yes, sir; two thousand acres were sold.

      By Mr. Shafer:

      Q. Did you know of actual sales in the neighborhood ?

      A. Yes, sir.

      Q. How near this tract ?

      A. About four miles from it.
    Plaintiff’s counsel propose to ask the witness the value of the land.
    Objected to; that the witness is speiaking altogether from information received when he was there as a visitor, and from a sale of land that he heard of four miles from this property, and that he is not a competent witness as an expert. Further, it is not the best evidence, such as record evidence would be, or testimony from the neighborhood of men familiar in a general way with values.
    The objection was overruled', under exception.
    (First assignment of error.)

      Wilson Phillips, the plaintiff, testified, inter alia:

      1 The land was finally sold from me on account of this deed of trust which was against the land, and which I thought was released, and it seems was not released, or for some cause or other the land was sold from me. It was taken from me by sale.
    Upon cross-examination he testified, inter alia:

      Q. When you bought this land from Mr. Williams you ¿new of this deed of trust ?

      A. Yes, sir.

      Q. What inquiries did you make, and of whom, as to who held the notes?

      A. I made inquiries by writing down to Raieigh county to the clerk of the courts, and I got a statement from him in regard to the title, showing that there was a deed of trust, amounting to $6,000, against the property — three thousand nine hundred and fifty-four acres, I think. That was all that was against the property — all that showed on the record was this deed of trust. That is the way I got my information — by writing down to the clerk of the courts.

      Q. Who did you inquire of as to the notes in the deed of trust?

      A. I made inquiries to the clerk of courts; that was all the information I acquired.

      J. O. Williams, a witness for plaintiff, testified :

      A. I simply went to Mr. Craft and got the release from him.

      Q. What passed between you ?

      A. I informed Mr. Craft that I was selling part of .the ground on which this deed of trust was an incumbrance, and the release was wanted. It was eight years ago, and I don’t remember all.

      Q. What did Mr. Craft do ?

      A. Mr. Craft spoke up. He explained to me that he didn’t hold all of the notes. That was my first knowledge of it, and he gave the release; I don’t remember how, but he said Mr. McCandless held the notes. I had given these notes to Major Ruff. * * ■ * ' 1

      Q. State whether these notes that Mr. McCandless testified the Allegheny National Bank and the First National Bank had, are the notes you refer to.

      A. I believe so.

      Cross-examined, by Mr. Woodward,:

      A. I went out with Mr. McVay to see Mr. Phillips, I believe. I went to see the property in order to arrange for the exchange in the first place.

      Q. You met Wilson Phillips at the time ?

      A. I believe so.

      Q. Talked to him about the transaction ?

      A. Yes ; I explained the matter generally.

      Q. Bid you explain about this deed of trust ?

      A. Yes; I gave a full explanation of everything connected with the transaction, as far as I can recollect.

      Q. You applied to Mr. Craft, yourself, for the release?

      A. Yes, sir ; I got the release myself from Mr. Craft.

      Q. He had nothing to do with the parties you were dealing with ?

      A. No ; he had no connection with them ; I don’t know that he ever saw them or not.
    By The Court:

      Q. Did you tell Mr. Phillips what Mr. Craft had told you ?

      A. I think I did ; that is my recollection of it now.

      By Mr Woodward:

      Q. You didn’t conceal anything from Mr. Phillips?

      A. No ; I did not.

      Q. You think you told him what Mr. Craft said ?

      A. That is my recollection.
    By The Court :

      Q. Did you tell Phillips that Craft did not own these notes?

      A. I think so.

      By Mr. Shafer:

      Q. What did you tell him ?

      A. I don’t remember absolutely. My recollection is that I explained the entire transaction — everything within my knowledge of the transaction before it was consummated. That is my recollection of the ease now.

      Wilson Phillips was recalled and further examined by Mr. Shafer, as follows :

      Q. Did Mr. Williams disclose to you what he states Mr. Craft told him — that he did not own these notes?
    Objected to, as proposing to contradict plaintiff’s witness.

      Objection overruled, to which defendant’s counsel excepts, and bill sealed.
    (Second assignment of error.)

      A. No, sir ; he did not say a word of that.

      Q. Not a word about it ?
    JL No, sir.

      Q. At none of the conversations you had with him ?

      A. I had no reason to have any conversation of that kind, because Mr. Williams did the business. There was nothing said about it.

      Q. Then he did not tell you anything of that kind, at any time ?

      A. I don’t remember of him stating anything to me about the notes at all.
    The declaration, after reciting the deed of trust and p T»p"|pcíC{p o vPTPPr] •
    “That the deed by J. C. Williams to Wilson Phillips, plaintiff, and said release of defendant, C. C. Craft, were delivered to plaintiff, Wilson Phillips, contemporaneously; and thereupon plaintiff delivered to J. C. Williams the consideration for said land, viz: The undivided one half of his mill property in Hickory township, Mercer county, Pa.
    And afterwards, to wit: On the 31st day of August, 1876, the said deed of release of C. C. Craft, defendant, was admitted to record on the margin of the trust deed in the Recorder’s office of Raleigh county, W. Va., by John Beckley, clerk.
    Whereupon plaintiff, afterwards, to wit: On the-day of--, 1880, found said C. C. Craft had undertaken to satisfy said trust deed and release the lien thereof when he had no right to do so, as he did not at the time own all the notes said trust deed was given to secure; and thereupon, afterwards, on the day and year aforesaid, said land was sold by a decree of the Circuit Court of Raleigh county, W. Va., for the unpaid notes secured by said trust deed, and which the said C. C. Craft falsely and fraudulently pretended to own, whereby the said plaintiff was deceived into parting with his property and losing it, and the land described also.”
    The defendant presented, inter alia, the following points:
    1. That under all the evidence the jury should find for the defendant.
    Refused. (Third assignment of error.)
    2. That the plaintiff was guilty of such negligence as excludes him from any recovery under the evidence.

      Refused. (Fourth assignment'of error.)
    3. That Craft, being shown not to have been cognizant of the transactions between J. C. Williams and the plaintiff, further than what is contained in his release, and the information to him, by Williams, that the plaintiff knew of the notes held by other parties, Craft is to be regarded as releasing after plaintiff had his deed, and placed it of record, and in such case the release did the plaintiff no harm shown, and he cannot recover.
    Refused. (Fifth assignment of error.)
    The court charged the jury, inter alia, as follows:
    “It seems that in 1875, Mr. Wilson Phillips, the plaintiff, was the owner of a half interest in a mill property in Mercer county, which he put in the hands of McVay, a real estate agent, for sale or trade. In some way Mr. Mc-Vay and Mr. Williams came together in the matter. Mr. Williams appeared to be the owner of a large tract of land in Raleigh county, W. Va. — altogether about four thousand acres, according to the title papers. There was a proposition to trade nearly one thousand- acres of this tract of land owned by Williams for the half interest in the mill property owned by Phillips. The parties were brought together through Mr. McVay, and negotiations were carried on — the land in West Virginia being examined and found satisfactory, and also the mill property. If you believe the evidence, it was required on both sides, and understood and believed at the time the deeds were exchanged and delivered, that both properties were free from incumbrance. Mr. Phillips obtained his deed and took possession of property, and after that it was sold by proceedings had on a trust deed, which is equivalent in that State to our mortgage in this State. If you will consider that the trust deed that has been talked of is a mortgage, you will probably comprehend it better. It is the usual form in West Virginia and some other States for securing a debt on land. It seems from the recoi'ds and documents in evidence, which are uncontradicted, that prior to this transfer, Mr. Williams, who had bought the land from Mr. Craft, executed a trust deed, or mortgage, securing six notes for $1,000 each, which the trust, deed asserts belonged at the time to Mr. Craft, and describes two of them made to the order of William Williams, and the others to the order of J. C. Williams, himself, and of course indorsed. It seems that on the 21st of August, 1876, Mr. Craft executed a release of that trust deed, or mortgage, and acknowledged' it in the city of Pittsburgh before William F. Robb, a notary, so that it could go on record in West Virginia, where the mortgage was also of record,' releasing this property bought, or about to be bought, by Phillips from Williams. It turned out afterwards, however, that Mr. Craft was not the owner of all the notes secured by that mortgage at that time ; that he had parted with two of them, and one was held by the Allegheny National Bank and the other by the First National Bank both of this city.
    Proceedings were had on the mortgage at the instance of a trustee named therein, on notice by the holders, of the notes, and a bill in equity was filed in the proper court, in that county and State. An order was made to sell the property, and it seems that the property of Mr. Phillips, the plaintiff, with the exception of one hundred and fifty-seven acres, was sold. He claims it was by the wrong or neglect of Mr. Craft, the defendant, that he lost his property. In the outset there is a serious dispute between the parties upon a vital question. The release, on its face, is an assertion by Mr. Craft that he was the owner of those notes, and unless we conclude that parties who do not know the facts are bound to assume that a man asserts a falsehood in a formal paper of this sort, then anybody who had not notice that he was not the owner of the notes had a right to assume, so far as Mr. Craft was concerned, that he was at the time the owner. I take it that it was an assertion to everybody.who had any interest in that land, or the released part of it, by Mr. Craft at the time that he owned the notes or they were paid to him, and he had a right to satisfy the mortgage. Mr. Phillips was entitled to treat that as a truthful assertion, so far as Mr. Craft was concerned, unless he had information to the contrary. He was not entitled to treat it as truthful as to any persons outside who happened to hold these notes ; as to them he would be guilty of negligence, which would cause him to lose his property; but as to Mr. Craft, as we have said, he was not guilty of negligence unless we can say that a man is bound to assume another asserts a falsehood in a formal paper of this sort. In saying this, I do not intend to intimate anything against the intentions — the really honest intentions — of Mr. Craft. I know him too well to believe that he would purposely be guilty of a fraud, or aid in a fraud, but when a man puts in the hands of another a paper which asserts impliedly that which is not true, and enables that other one into whose hands he puts the paper to cheat and defraud a third party, we think he is liable for his neglect. Mr. Craft did wrong in executing this paper. He should have followed his own first impulses, and his own judgment in regard to the matter, and refused to execute a release at all, or else to have put in what he released from, viz: The notes that he actually held himself. In executing this release he did a wrong to the parties to whom he transferred the notes, and to anybody else who would rely upon this paper. Now comes an important question on which there is evidence on both sides, and as to which you must find the fact. It is claimed, on part of the plaintiff, that neither he nor Mr. McVay, who transacted business for him and Was his agent, had any knowledge or any intimation from Mr. Williams or Mr. Craft, or anybody else, that would lead them to doubt that Mr. Craft owned the notes secured by this trust deed which he was releasing, or that would make them suspect anything else than that that paper was a proper one. On the other hand, Mr. Williams testified that he thinks Mr. Phillips, or his agent, was informed by him that Mr. Craft did not own all these notes. Mr. Craft’s testimony is that he told Williams he did not own the notes. Williams knew that Craft did not own them all, because he knew, if the evidence is to be believed, that Ruff had one of them. If Williams did tell Phillips Craft was not the possessor of all the notes, or if Phillips had notice in any other way of that fact, then he cannot recover — it is an end of this case. You will see it is a vital question. If you determine it in favor of the defendant, you need not inquire any further ; if in favor of Mr. Phillips, then you go to further inquiries. Did the plaintiff rely upon that release % You must not only find that he did not know that Craft was not the owner of these notes, but you must find that it was on the strength and faith of this release being what it purported to be — the assertion of Mr. Craft that he had the right to release — that he parted with his money or property. This release must have been received by him in good faith, without knowledge or notice of any kind that Craft did not own the notes, and in addition he must have parted with his property and taken the conveyance on the strength of it; otherwise he cannot recover. The burden of proof is on the plaintiff. If he did so take it, without any knowledge or notice that Craft did not own the notes, and had no right to release the-lien of the trust deed, and the property was sold from him without any fault of his, then he is damaged by Mr. Craft’s negligent act, and he is entitled to recover. All these questions of fact are for you.”
    Verdict for plaintiff for $1,212 72, and judgment thereon. The defendant thereupon took this writ, assigning for error, inter alia, the admissions of evidence and the answers to his points as above.

      M. A. Woodward for plaintiff in error.
    The plaintiff had no case, without assuming, as the Court did, that the release was a plain assertion by Craft, that he held the notes secured by the deed of trust, and that the plaintiff relied, properly and ignorantly thereon, in taking a title the loss of which is his ground of damages.
    The defects in this are manifest and fatal.
    The release does not, necessarily, imply that Craft owned the notes. On the other hand, it did allege that it was a release subsequent to Phillips’ acquisition of the title, and Craft swears that it was executed with that understanding, which evidence, with the paper, is conclusive, and the paper itself so warned the plaintiff, hence he cannot charge Craft with having taken the title after the releasé.
    That the plaintiff inquired for liens, and discovered the deed of trust, and made no further inquiries as he testifies, was, unless fully informed as stated by Williams, guilty of negligence in construing and relying upon the release, and in allowing the land to go as it did, of such character as precludes him from setting up a claim against Craft, this statement of the facts makes plain enough.
    Roberts v. Halstead, 9 Barr., 32 — 6.
    JV. W. Shafer for defendant in error.
    January 5, 1885.
   The opinion of the Court was delivered by

Sterrett, J.:

While it is not incumbent on the plaintiff in an action of deceit to show affirmatively that he himself is not to blame for the injury complained of, if it appears from the evidence on either side that his own neglect of duty or bad faith toward the defendant has brought about, or materially contributed to bring about, the result of which he complains, he should not be permitted to recover.

It was claimed by defendant below that on August 21, 1876, when he executed the release, he was informed and believed that plaintiff had previously purchased the land described therein, and had accepted a deed therefor from Williams. His own testimony to that effect was distinct and positive, and he is fully corroborated therein by the recital in the release, which describes the land with “ being the same which J. C. Williams aforesaid sold and conveyed to Wilson Phillips, .of Mercer county, Pa., by his deed, dated July 26, 1876, said deed being recorded in the recorder’s office in Raleigh, Virginia,” etc. This recital was notice to plaintiff that the release was executed by the defendant on the faith of information he had received, and in the belief, not that the sale was then being negotiated, or dependent in any manner on the release, but that it had been fully consummated and the deed accepted nearly a month before. Under these circumstances, was it not the duty of plaintiff to correct the misapprehension of fact under which defendant had evidently executed the release, rather than to permit him to remain in ignorance of the deception that appears to have been practiced on him ? If he had been informed that the negotiation was still pending, that plaintiff refused to accept the deed and -part with the consideration until the release was procured ; non constat. that he would not have objected on the ground that the release had been obtained by misrepresentation. Knowing, as the plaintiff must have known from the face of the release itself, that it was given under a misapprehension of fact — that it was not executed for the purpose of inducing him to purchase the land — how could he, in the exercise of good faith, remain silent and afterwards claim that it was given by defendant, and accepted by himself, as an inducement to purchase the land and part with the consideration therefor? His silence, under the circumstances, was virtually an affirmation of the misrepresentation under which he had every reason to believe the release was procured. Th e use of the release as an inducement to purchase is by no means an immaterial fact. The plaintiff’s claim is based mainly on the ground that it was given and accepted as such inducement. After reciting the deed of trust as a lien on the land, and averring that it so remained until plaintiff was about to purchase, the declaration further avers that defendant, “ in order that the sale to plaintiff should be made, wrongfully intending to injure plaintiff, executed a written release of said land, and caused the same to be delivered to plaintiff, whereby he was deceived, and on the faith of said release parted with the consideration therefor to said J. S. Williams.”

These are not merely formal averments. They are matters of substance, and constitute the most essential part of plaintiff’s case. Some of them, so far, at least, as defendant is concerned, were not sustained by the evidence. There appears to be nothing in the case to support the averment that defendant executed the release “ in order that the sale to plaintiff should be made.” That was, doubtless, the purpose for which Williams procured it and intended to use it, but there is no testimony tending to show that defendant intended it for that purpose. On the contrary, the release itself shows it was executed in the belief that the sale had been consummated several weeks before. With explicit notice of this fact brought home to him, what right had the plaintiff to act on the faith of the release and neglect the duty of making that inquiry which the recital plainly suggested 1 If that inquiry had been made, it, doubtless, would have led to such an understanding of the facts connected with the release as would have avoided the loss that appears to have resulted.

In view of the pleadings and evidence, we think, for reasons above suggested, that- defendant’s first and second points, covered by the third and fourth specifications, should have been affirmed.

The remaining assignments of error are not sustained. The testimony complained of in the first and second specifications of error was not incompetent.

With some modification, defendant’s third point might have been affirmed ; but, as presented, there was Ho error in refusing it. Whether Williams “gave plaintiff full information and concealed nothing,” was a question of fact for the jury. The testimony on that point was conflicting and was rightly submitted to the jury.

Judgment reversed, and a venire facias de novo awarded.


author: Per Curiam:

text:
    October and November Term, 1884,
    No. 124.
    Nov. 23, 1884.
    Diehl et al. v. Woods.
    A landlord who was also a boarder with his tenant, occupying a room on the premises under a Verbal arrangement made at the same time as the written lease, upon notice from tire tenant gave up the board but refused to surrender the room, saying that he owned the house and would not leave. Held that his subsequent payment for the use and occupation of the room took from the case the technical character of an eviction by him which would prevent him from recovering for the rent by a distress.
    Before Merctjr, C. J. ; Gordon, Paxson, Trunkey, .and Clark, JJ. Green and Sterrett, JJ., absent.

      Error to the Court of Common Pleas, No. 1, of Allegheny County.

      Replevin by P. R. Diehl and Amanda Diehl, his wife, in her own right, and Clara V. Diehl against H. H. Woods, agent, and G. W. Carnes, constable, for household goods seized in distress for rent alleged to be in arrear.
    Upon the trial of the case, April 16,1884, before Bailey, J., the following facts appeared:
    On April 1, 1883, Fred. R. Diehl, as tenant, entered into articles of agreement with William Woods the landlord, for the renting of a three-story brick house in Pittsburgh. The annual rent of $700 was to be paid in monthly installments of $58 33 each. Diehl had occupied the house the year before and Woods, the landlord, boarded with him, .paying $33 50 per month for his room and boarding. This arrangement as to boarding was continued after the renewal of the lease as before.

      Amanda Diehl, one of the plaintiffs, testified in substance inter alia: On the morning of the 17th of April, (1883,) I went to market. I prepared him a meal fit for any person to sit down to. He objected to it, saying it wasn’t fit for dogs to eat and that he had never eaten more trash and dirt than he had there. I told him I didn’t' want him to board there any more. He made himself so objectionable I was dissatisfied and asked him to leave. He did not. He left his board. He said he wouldn’t leave the room, that he owned the house, and he would stay in the house. I told him I certainly wanted the room if he didn’t board. I certainly wanted the room, which was tbe best room in the house. I had one other boarder. He would not leave the house. He occupied the room afterwards until I left the house the 31st of March. I gave him a written notice, asking him to leave the room the first day of May which he refused. He showed the written notice, saying he was the owner of the house and wouldn’t leave.
    Upon cross-examination, she testified:
    The arrangement was, that Mr. Woods'was to stay there and board when the house was leased. He was to have his room and board. I told Mr. Woods I didn’t want him to board with me any longer, and to leave the room. Then he ceased to board with me. He .boarded with me seventeen days. After that I kept his room clean and washed his bedclothes. I and the family had possession of all the rest of the house. The notice I served on the old gentleman stated that I did not want him either to board with me or to stay in the house any longer. He declined to leave the house and said he wouldn’t board with me. It was at my request that he didn’t board with me. I requested him to leave the house. Servedanotice on him asking him to leave the room. At the time I had the notice served on him I had the room rented to a gentleman who was to pay me $20 a month.
    This testimony was corroborated by other witnesses.
    The plaintiff submitted inter alia, the following point:
    6. If the jury believe from the evidence that the plaintiff entered into possession of the premises in question on the 1st of April, 1883, under a sealed contract of lease with the landlord, and that the landlord was received as a boarder on the same day, and remained there for seventeen days, occupying the best room in- the house, that, owing to dissatisfaction between him and the tenant, he was requested and notified by the tenant on the 17th day of April, 1883, and at other times thereafter, to deliver up the room and leave the house, that he absolutely refused to do so, stating and contending that he was the owner of the house and had a right to stay there and occupy said room, and that, the tenant couldn’t put him out, and that he did stay and occupy said room against the will and consent of the tenant, such action on the part of the landlord was an interruption of the tenant’s rights under the lease, suchas interfered with his possession, and amounted to an actual adverse possession and substantial eviction of the tenant from a part of the demised premises, and in view of these facts the rent would be, and was, suspended from that time, and the landlord is entitled only to rent accrued prior to said interference and eviction.
    Refused. (Sixth assignment of error.)
    The Court charged the jury inter alia, as follows:
    “A tenant, of course, is entitled, so far as the landlord is concerned, to the possession of the entire premises, and any interference with the enjoyment of the premises on the part of the landlord, as landlord, will constitute what is called, in law, an eviction ; and if there be an eviction by the landlord of any part of the premises, it would suspend the rent, which means there will be no rent due. Because, on the theory that the contract is an entire one, if the landlord cannot collect the whole of the rent, by reason of his misconduct, he cannot collect any of it.
    “In this case,however,in the view the Court takes of the law, the landlord, as landlord, did no act which constitutes an eviction.
    [ “I affirm the first and only point of the defendants, “That the occupancy of the room in question by the landlord, Mr. Woods, under the contract between the said landlord and the tenant, testified to by Mrs. Diehl, was not an eviction.’
    “I so instruct you. It was not an eviction in law, consequently there is no defense on that ground, and that, I believe, is the entire defense presented on the part of the plaintiffs — that they were evicted by the landlord. I do not so understand it. He entered there as a'boarder, by the consent of the parties in possession, and he remained there without ever leaving it, and without assuming (in his acts, except in his own words,) the relation of landlord.
    “It was not an entry by the landlord, either actual or constructive, and therefore it was not an eviction in law.]
    “Ordinarily, apart from the arrangement between the parties, there is no such thing as set-off in a case of this kind. It leaves jjarties, if there be anything else in the case other than the mere question of rent, to determine that in another action, but, as you heard me suggest to counsel, that in a case of this kind if an arrangement was made by which a deduction could be made upon this rent, it would save, as has been said, another action, and that has been assented to by the plaintiffs, without prejudice to any rights they have under this case, as they have presented it. But that if the view the Court has taken of the matter be ultimately sustained, in that event there need be no other action brought.
    “Mr. Woods did stay there against the wish of Mrs. Diehl, if not against the wish of her husband, and remaining there as he did, he is bound to pay what would be a fair compensation for the services performed for him, for the occupancy of this room, and the attention that was requisite to care for it. That is a question for you to ascertain.
    “While you would naturally assume, probably, asmen,' that a man who stays where he is not wanted ought to pay, possibly, smarting rent, that is not the law. All the plaintiffs would be entitled to would be compensation for what the occupancy of this room was worth from the 17th of April to the 1st of July, which is the quarter’s rent covered here, and for the boarding and lodging for the seventeen days of the month of Api’il [and your verdict will be for the amount of the rent, less these deductions for the boarding and lodging for the seventeen days, and the lodging for the balance of the quarter, with interest upon the balance.”]

      Verdict for ‘defendants for $129 71 and judgment thereon. The plaintiffs thereupon took this writ, assigning for error, inter alia, the refusal of their point as above and the portions of the charge in brackets. t

      W. Q. MrsJcine and A. 8. Miller for plaintiffs in error.
    We cannot conceive of a case stronger in all the elements, according to the authorities, which go to make up an eviction, an interference by the landlord with the tenant’s possession.
    His words, together with his acts, we think constituted a substantial eviction of the tenant from a part of the premises.
    The tenant was in possession ; the landlord, on the 17th day of April, ceased to be a boarder, and on that same day he entered as landlord, took up a part of the house, asserted his right to remain there as landlord, and dispossessed the tenant of a part of the premises, and refused to leave.
    There may be a constructive eviction — an eviction without actual physical expulsion: McClurg ». Price, 59 Pa. St. Rep., 423 ; Magaw v. Lambert, 3 Barr, 444; Hceveller ®. Fleming etal., 8 W. N. C., 65 ; Tayloron Landlord and Tenant, 7th -Ed., Sec. 381; Doran®. Chase, 2 W. N. C., 609 S. C. ; Briggs®. Thompson, 9 Barr, 340.
    Any interference with the tenant’s beneficial enjoyment of the demised premises will amount to an eviction inlaw: Pier ®. Carr, 69 Pa. St. Rep., 327; Doran ®. Chase, 2 W. N. C., 609 S. C. ; Hceveller ». Fleming, 8 W. N. C., 66 S. C.
    In this case, the landlord ceased to be a boarder and asserted his unqualified right as landlord to stay in the house and occupy the room against the wish, consent, and will of the tenant, which certainly would amount to an interference with the tenant’s beneficial enjoyment of the premises, and would amount to an eviction in law.
    If the landlord claim and use certain privileges upon the demised premises against the tenant’s consent, he must show a reservation of them or the rent is suspended: Vaughan ®. Blanchard, 4 Dallas, 124 ; Hceveller ®. Fleming, 8 W. N. C., 66 S. C.

      Thomas 8. Bigelow and Charles C. Dickey for defendants in error.
    The landlord was lawfully in possession of the room, and under the contract had a right to remain there during the year. He showed his right to remain upon the premises and to reserve the room, and thus prevented a suspension of the rent. Vaughan v. Blanchard, 4 Dallas, 124.
    November 13th, 1884.
   Per Curiam:

This is not the case of an eviction by the landlord, of his tenants from the possession. He entered as a boarder by their permission and in subordination to? their rights. He paid for his board and lodging. It is not necessary that his right to thus occupy a room should have been reserved in the lease or at the time of its execution. Subsequent permission for him to thus occupy was sufficient. He had occupied the room under them the previous year, and had entered on the second year when the difficulty in regard to the board occurred. His unwillingness to then cease to occupy the room; but his subsequent payment to them for the use and occupation thereof, took from the case the technical character of an eviction by a landlord. The assignments of error are not sustained.

Judgment affirmed.


text:
    Oct. and Nov. Term, 1884,
    Nos. 194 and 195.
    Nov. 7, 1884.
    Ford et al. vs. Borough of Chartiers. Appeal of Ford et al.

    The court of quarter sessions appointed viewers to assess damages and benefits arising from the widening of a street in the borough of Chartiers. The viewers filed their report on December 7, 1882, to which exceptions and demand for “jury trial in the manner provided by the laws of this Commonwealth,” were filed on December 22,1882. Held, that this was not such a demand as the court of quarter sessions was bound to heed, and that it was not in compliance with the act of 13th June, 1874, P. L., 283, giving the right of appeal to the common pleas “ within thirty days from the ascertainment of the damages or the filing of the report thereof in court and not afterwards.”
    Before Merour, C. J.; Gordon, Páxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Quarter Sessions of Allegheny County.

      Certiorari to said quarter sessions.
    Appeal of James Ford and James Gallagher in re street in Chartiers borough.
    On the 25th day of November, 1882,’ the burgess and town council of the borough of Chartiers presented to the court of quarter sessions tlieir petition, setting forth that petitioners, by an ordinance passed by the borough council and duly approved, had widened a portion of Fourth avenue, one of the streets of said borough, from Ghartiers creek to the line of the Ghartiers Valley railroad, to the uniform width of ’fifty-five feet, by the addition to the south side o£ said street of a strip of land seven feet wide. This strip was ’ taken from the lots abutting upon said street. The petition and draft annexed showed that there would be taken for this purpose, from a lot owned by the appellants abutting upon the south side of said street, a strip of land seven feet wide and forty-three feet long (the front of the lot.) It also appeared that there was upon said lot a two-story frame building owned by the appellants, and nearly as wide as the lot. The proposed appropriation of land would cut off three feet and four inches from the front of the building. The petition then prayed for the appointment of viewers to assess benefits and damages resulting from the proposed widening. The court thereupon appointed viewers. The viewers, on the 7th day of December, 1882, filed their report, wherein, among other things, they reported “that the two-story frame house owned by Gallagher and Ford would have to be moved back a distance of three feet four inches, and appropriate a depth of seven feet along the front of said property, and we do assess and allow to James Gallagher and James Ford, as damages caused as aforesaid over and above all advantages, the sum of two hundred and fifty dollars.” The report did not contain a description of the land assessed for benefits, but referred to the draft of survey submitted to the board of viewers, “a copy of which has heretofore been submitted to your honorable court.”
    On December 22, 1882, Ford ' & Gallagher filed, inter alia, the following exception and demand for trial to the report of the viewers, viz :
    “Because the report of the said board of viewers does not show the manner in which they arrived at the damages sustained respectively by these exceptants.
    “In addition to the said, exception, the exceptants respectively demand a trial by jury in the manner provided by the laws of the Commonwealth in order that the damages sustained by them may /be ascertained and determined.”
    They also filed affidavits that the facts are just and true.
    On the 28th day of April, 1884, the court dismissed the exceptions, refused the jury trial, and confirmed the re port of the viewers absolutely. At the next term, after the confirmation of the viewers’ report, on the 19 th day of July, 1884, the appellants filed a petition for a review, and a rale was granted to show cause why this review should not be granted. This rule, on the 13th day of December, 1884, was discharged.
    The exceptantó then took out a writ of error and appealed, assigning as error the dismissal of said exception, the refusal of the demand for a jury trial, the confirmation of the report of the viewers, and the refusal of the review asked for.

      William C. Moreland and Charles C. Dickey for appellants.
    The report of the viewers was insufficient in failing to give any description of the properties assessed for benefits as required by act 22d April, 1856: Pur. L. Dig., 174, pi. 95. It did not allow anything for the land taken, nor specify how much was allowed for cutting off the building.
    The report also failed to show when and where the viewers met, and whether the appellants had notice of the time and place of meeting : New Jersey Central RR. Co.’s Appeal, 39 Leg. Int., 330.
    The demand for jury trial was made in time. The form of the demand was sufficient, and was substantially the same as that made in Pusey’s Appeal, 2 Norris, 67. It was equivalent to a formal appeal; and was, to all intents and purposes, an appeal,

      O. R. Cooke and E. Edgar Qalbreth for appellee.
    The report shows that the manner in which the viewers arrived at the damages sustained by exceptants was by “having regard both to the advantages and disadvantages to the several properties,” &c.
    The damages must be awarded as damages caused by the widening of the street, and not so much for the land and so much for the removal of the building. Under the act of 1856, relating to boroughs, the remedy for an insufficient allowance of damages is by application for a review within the prescribed time: Montgomery Street, 7 Luz. L. Reg., 79; Road in Plum Township, 2 Pitts., 184.
    If appellants were entitled to a jury trial, it was by virtue of act of 13th June, 1874, ,P. L. 283, Purd. Dig., 1855, sec. 2, which requires an appeal to be taken “within thirty days from the ascertainment of the damages or the filing of tlie report.” This was not clone. The demand for trial cannot be construed as an appeal in accordance witli the act of 1874 ; 1 S. & B., 78; 1 Binn, 219; 3Id., 48. This act also requires an appeal to be accompanied by an affidavit that the same was not taken for delay, &c., which was not done here : Boad in Springdale Township, 10 Norris, 263. The demand was not in substantially the same form as that made in Pusey’s Appeal, 2 Nor., 67.
    If entitled to a review at all, the petition came too late, as the road law provides that it must be presented at or before the next term of the court after the filing of the report: Act 13th June, 1836, sec. 25, P. L., 559; Purd. Dig., 1283, sec. 84. The act of 22d April, 1856, provides that the confirmation shall be conclusive on all parties. Any description or reference sufficient to identify and distinguish the property would be a compliance with the act of 1856. The draft or plan referred to in the report fully describes the property. The law does not require that separate amounts should be found for the lot and. for the building. The act of 1856 makes no provision for' notice. 0
    November 13th, 1884.
   Per Curiam:

The act of Assembly gives a right of appeal to the common pleas “within thirty days from the ascertainment of the damages or the filing: of the report thereof in court ai\d not afterwards.” This is a matter of right when exercised at the proper time and in a proper manner. Here it -was not done. Demanding in the quarter sessions, “a trial by jury in the manner provided by the laws of this Commonwealth” is not such a demand as the latter court was bound to heed. No writ of error lies for refusing it. The court was right in .overruling the exceptions and in confirming the report of the viewers.

The writ of error is quashed and judgment on the certiorari is affirmed.


author: Per Curiam :

text:
    October Term, 1884,
    No. 104.
    October 31, 1884.
    Green v. Belford.
    1. A sale under a municipal lien filed against “ J. Bedford,” of premises which had been properly registered by the owner, prior to the filing of the lien, in her correct name, “Jane Belford,” at the office of the city engineer of Pittsburgh, in accordance with the registry act of 24th February. 1871, P. L., 126, will not divest the title.
    2. The change of names was too great to give reasonable notice to her that she was the person intended.
    3, Where a sale had been made under the circumstances stated above, a deed acknowledged to the purchaser, Ellen O. Green, by the sheriff, and by her duly registered and recorded, and another municipal lien against the same premises, was filed originally against Ellen O. Green, afterwards by amendment against “ Unknown Owner,” it was Held, that judgment, execution, and sale thereunder were also ineffective to divest tlie title of Jane Belford to the land in question.
    Before Mercuk, C. J., Gordon, Paxson, Trpnkey, Sterrett, Green, and Clark, J J.
    Error to the Common Pleas, No. 1, of Allegheny County.

    Ejectment by John EL Belford and Mane Belford, his wife, in right of said Jane Belford, against Ellen C. Green, for a lot of ground situate on Forty-second street, (formerly Chestnut street,) in the Seventeenth ward of the city of Pittsburgh, (formerly the borough of Lawrenceville.) Plea, not guilty.
    On the trial before Stowe, J., these facts appeared:
    Mrs. Jane Belford, the plaintiff, derived title to the lot in question by deed, dated and acknowledged, May 1, 1867, from Henry Wilhelm et ux., and Paul Seibert et ux., in whom it was admitted the title thereto then was vested. This deed was duly recorded May 4, 1868. The price paid for the lot was $485. The registry act for the city of Pittsburgh, passed February 24, 1871, requires that the city, under an ordinance and appropriation, shall cause books and plans, etc., of said city to be prepared in sections, etc., in which shall be entered the size of all lots, names of owners, etc., and that the same shall be kept in the office of, and by the city engineer, who is directed to give thirty days’ notice to property-holders to bring in their deeds for registry.
    ■ The plaintiff, in compliance with this act, took her deed to the office of the city engineer, where the.register of deeds placed upon it the proper certificate, September 3, 1872, and entered it on his registry as follows:

    In accordance with the practice of his office, he took from the deed a description of the property and had the plaintiff, (wlio could neither write nor read writing,) make her marlt to it. This paper, which was filed, as is customary, in the register’s office, read as follows: 1
    “Present Owner, Jane Belford.
    Former Owner, Henry Wilhelm: and Paul Seibert.
    Date of Deed, May l? 1867.
    No. of House
    Bring deed with this that it may be indorsed.
    Description of property, which must be an exact copy in the wording of the deed.
    All that certain lot or piece of ground situate in the Seventeenth ward, city of Pittsburgh, bounded and described as follows, to wit: Said lot fronts on Chestnut street, (now Forty-second street,) twenty-two feet, and extends back, preserving the same width, to an alley twenty feet wide, and bounded by Grant street and lot No. 39.
    Being lot No. 40, in Wilhelm and Seibert’s plan of lots in D. B., vol. 226, page 454.
    Signature of owner or agent.
    her Mrs. Jane x Bedford.” mark. •
    The register of deeds testified that he “didn’t know who wrote the name ‘ Jane X Bedford;’ there seems to have been no witness there.” The.plaintiff testified that she didn’t “remember signing the paper.”
    During the year 1875, Forty-second street was improved under the provisions of the act of Assembly of January 6,1864. Default having been made in the payment of the assessment for this improvement, a lien was entered against the lot the title for which was registered as above recited, after the various notices required by sections seven and eight of the act had been given against the owner in the name of J. Bedford. Judgment having been obtained, a lev. fa. was issued thereon, and the lot sold to Ellen C. Green, the defendant below, for the sum of $250. The deed of B. H. Fife, then sheriff, dated February 7, 1878, made in pursuance of this sale, was, after acknowledgment, duly registered in the city engineer’s office and recorded.
    Mrs. Green shortly after built upon the lot at a cost of about $1,700.
    Another municipal lien had been filed by the city of Pittsburgh, against the property in dispute for grading and paving an alley in its rear, on March 1,1878, against the owner, in tlie name of Ellen C. Green. This was amended October 23,1880, by substituting as defendant, “Unknown Owner.” Judgment was obtained, execution issued, and the property again sold by the sheriff to Mrs. Green for $240, January 8, 1881,., and the sheriff’s deed to Ellen C. Green duly acknowledged, registered, and recorded.
    Mrs. Belford testified that she was never known b5r the name of Bedford, and never so called, that she had always paid the taxes on the lot; had paid some about a week before the date of the sale to Mrs. Green.
    The plaintiff submitted, inter alia, the following points:

      Second. That the judicial sale of the property in the name of J. Bedford, passed no title to the property as to Jane Belford. Affirmed. Exception.
    (Second assignment of error.)

      Third. That the judicial sale in evidence, as against unknown owners, is absolutely void, because the evidence of both parties shows that the name of the owner was duly registered in the office of the city engineer long before the grading was done or this lien filed, under which said sale was made. Affirmed. Exception.
    (Third assignment of error.)

      Fourth. The defendants have shown no evidence sufficient in law to divest the plaintiff’s title to the lot in controversy. Affirmed. Exception.
    (Fourth assignment of error.)
    The defendant presented, inter■ alia, the following points:

      First. That under the principle of idem sonans, an assessment and sale in the name of Jane Bedford will convey the title of Jane Belford. Refused. Exception.
    (Sixth assignment of error.)

      Second. If the jury find that the first registry of the lot was in the name of Jane Belford and the registry following that showed the title in Ellen C. Green, by conveyance by sheriff’s sale in the name of Jane Bedford, then there was such a contradiction on the record as to authorize an assessment and sale of the lot in dispute in the name of Unknown Owner — and such sale in the name of Unknown Owner would convey good title. Refused. Exception.
    (Seventh assignment of error.)
    The Court charged the jury that “plaintiff is entitled to recover in this action, under' all the evidence, with six cents’ damages, and costs.”
    (Tenth assignment of error.)
    Yerdiot for plaintiffs for six and one fourth cents damages and costs, and judgment thereon; whereupon defendant took this writ, assigning for error, inter alia, the affirmance of plaintiff’s and refusal of defendant’s points given above, and the action of the court instructing the jury peremptorily to find for the plaintiffs.

      Robb & McQ lung for plaintiff in error.
    Under the doctrine of idem sonans, the courts have recognized and considered the identity of names arising, not only by reason of similarity of sound, but because of similarity in appearance as well: Cadden’s estate, 26 Pittsburgh, L. J., 171; Bergman’s app., 7 Norris, 123; Colburn ■». Bancroft, 23 Pickering, ¡57.
    In the present case, Belford and Bedford, when spoken, may be easily mistaken the one for the other, and when written in the hand of the average penman, the resemblance is close. If J. Belford saw that her lot, with its marked and characteristic description, “fronting twenty-two feet on the south side of Forty-second street, at the corner of Grant street,” was assessed in the name of J. Bedford, she could not but know that she was the person sought to be charged. If she did not see it, her lack of information was not in consequence of the misnomer. A married woman, living with her husband, her name did not appear in the city directory. Successful inquiry in the neighborhood of the property was the only means of procuring personal service of the notices and writs. And so great is the similarity in the names that inquiry prosecuted there for “ J. Bedford, owner of the lot on the corner of Forty-second and Grant street,” would as readily lead to the discovery of the true owner as if the .inquiry had been for J. Belford. The defendant’s first point should have been affirmed.
    The position that the sale in the name of Unknown Owner carried good title needs no elaboration. There was a contradiction on the city register; the validity of Mrs. Green’s title depended in part upon representations made by Mrs. Belford outside the record that her name was Bedford. It would be unreasonable to impose upon the city the duty of deciding between conflicting titles. To proceed against the lot in the name of either the one or the other of the claimants, would be to expose to sale a questionable title. The act of January 6, 1864, section 21, (P Tk, page-1136,) provides the only safe course, and the city followed it by substituting “Unknown Owner” as defendant.

      John Barton for defendant in error.

      It is argued that the names Belford and Bedford are the same in sound, and when written present the same appearance to the eye; the difference is in the first syllable-one is Bel and the other is Bed; there is as much difference both to the eye and ear as there is between a dinner bell and bedstead.
    It was to avoid the very uncertainness as to names and description in entering municipal liens referred to by plaintiffs in error that the registry law of 1871 was passed, requiring, under penalty, that all property-owners should bring in their deeds to the city engineer to register, and all sheriffs, trustees, &c., making judicial sales should cause the deed of conveyances to be registered before delivered to the purchaser ; and the same act gave to those who complied with the law a complete protection, and provides: “Whensoever such descriptions shall have been furnished, and the certificate of the engineer or his assistant shall be received, no property so returned shall be subject to sale for taxes or other municipal claims-thereafter, to accrue as lien of record thereon except in the name of the owner as returned, and after recovery by suit and service of the writ on him, as in case of a summons, scire facias, or other appropriate writ.” And again, in the eighth section of the act, the Legislature, in speaking of the title that shall be acquired bjr the purchaser at sales upon municipal liens, further enacts: ‘ ‘But if the said duty of making the returns, as required by the acu, shall have been discharged by the party who shall have acquired title in whatsoever manner before the tax accrued, as a lien of record for which the same shall have been sold, the purchaser at the tax sale shall not acquire the title of such persons who shall have performed said duty, or of his heirs or assigns, unless the same shall have been made in the name of such owner, after service of process upon him, as in case of suit by summons, scire facias, or other appropriate writ.”
    November 10th, 1884.
   Per Curiam :

Mrs. Jane Belford performed her duty towards effecting a correct registration of her title tó the land in question. She should not suffer for the willful wrong or gross carelessness after-wards committed by the municipal authorities. The change of names was’too great to give reasonable notice to her that she was the person intended.

Judgment Affirmed.