text:
    Hanhauser v. Pennsylvania & New England Railroad Company, Appellant
    (No. 1).

      Appeals — Perfecting appeal — Bond—Motion to quash.

    Where an appeal has been' entered and the writ of certiorari filed in the court below within six months of the date of the judgment or decree appealed from, and it appears that there has been no execution issued or distribution ordered when the appeal was perfected, the fact that a bond was not entered until after the expiration of the six months, is no ground for quashing the appeal.

      Judgment — Opening judgment — Neglect of court to state reasons — Remitting the record.

    Where the court below sustains a demurrer to a petition to open a judgment, and discharges the rule to open, without giving any reasons therefor, several grounds of demurrer having been assigned, the appellate court will remit the record to the court below to state its reasons for its action.
    Argued March 26, 1908.
    Appeal, No. 390, Jan. T., 1907, by defendant, from order of C. P. No. 3, Phila. Co., March T., 1887, No. 147, discharging rule to open judgment in case of George Hanhauser, Administrator of the Estate of James Clarke, deceased, v. Pennsylvania & New England Railroad Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Record remitted.
    Rule to open judgment.
    The appellee moved to quash the appeal for the following reasons:
    1. Because the discharge of the rule taken to open judgment was entered by the court below on July 3, 1907, and the certiorari from the supreme court was not brought into the prothonotary’s office until December 18, 1907, and the appeal bond not filed until February 28, 1908.
    2. Because, by the provisions of the Act of May 19, 1897, P. L. 67, entitled: “ An Act regulating the practice, bail, costs and fees on appeals to the Supreme Court and Superior Court,” it is provided in section 15, as follows :
    “ Section 15. Appeals may be taken from any sentence, order, judgment or decree without security in any proceeding, where by law the same is or may be allowed, but in such cases the appeal shall not operate as a supersedeas, except when a county, township or municipal corporation, or anyone suing or defending in a representative capacity, is the appellant; or when the appeal is from a judgment entered in favor of the commonwealth upon an account settled by the auditor general and state treasurer, and a bond with approved security has already been given, as required by law, or in any other case where a bond with approved security has already been entered in the court from which the appeal is taken, conditioned as herein provided for such appeal; in which cases the appeal shall operate as a supersedeas without security, and except also, that in all other cases where a corporation, other than a county, township or municipal corporation, appeals on its own behalf, such appeal shall be quashed, unless bail is given to operate as a supersedeas as by this act required.”
    And by section 4, it is provided as follows:
    “ Section 4. No appeal shall be allowed in any case unless taken within six calendar months from the entry of the sentence, order, judgment or decree appealed from, nor shall an appeal supersede an execution issued or distribution ordered, unless taken and perfected, and bail entered in the manner herein prescribed within three weeks from such entry.”
    And the said corporation, appellant, has not entered bond within twenty-one days from the entry of the order, judgment or decree of the court below in accordance with the provisions of the act of assembly so cited.

      Error assigned was the order of the court.

      Alex. Simpson, Jr., with him Wm. Y. C. Anderson and Wm. Jay Turner, for appellant,
    cited against the motion to quash: McDonald v. Gifford, 6 Phila. 315; Com. v. Conway, 8 Pa. Dist. Rep. 319; Means v. Trout, 16 S. & R. 349; Adams v. Null, 5 W. & S. 363; Koenig v. Bauer, 57 Pa. 168.

      ■Chester N. Farr, Jr., with him William C. Mayne and William A. Glasgow, Jr., for appellee.
    October 5, 1908 :
   Opinion by

Mr. Justice Brown,

The judgment which the court below refused to open was against five terre-tenants, to whose rights, franchises, property and assets the appellant succeeded. The order discharging the rule to open the judgment was made July 3,1907, and the certiorari sur this appeal wits filed in the court below December 18, 1907, within six calendar months from the discharge of the rule. After six months had expired from the refusal to open the judgment the appellant filed its bond on this appeal. ■ We cannot tell from the printed docket entries when it was approved by the court below, and counsel do not agree as to the date. In the motion to quash it is given as February 28, 1908, while in the answer thereto counsel for appellant fix it as March 2, 1908. But without regard to the date of the filing and approval of the bond, it was given on an appeal taken within time and approved. No time is fixed by the act of' 1897 within which such a bond must be given and approved to operate as a supersedeas, except that it must be given within three weeks of the entry of a judgment or decree to supersede “ an execution issued or distribution ordered.” The question on this motion to quash is not whether the approval of the bond superseded any process in the hands of the sheriff at the time it was approved, but whether it was given to operate as a supersedeas. It is on file for the protection of the appellee in the form prescribed by the statute, and it manifestly was approved, that it might operate as a supersedeas. The motion to quash is, therefore, overruled.

The petition of the appellant to have the judgment opened was in the nature of a bill in equity and was an appeal to the chancery power of the court: O’Hara v. Baum, 82 Pa. 416; Humphrey v. Tozier, 154 Pa. 410; Hall v. West Chester Publishing Company, 180 Pa. 561; Lawrence v. Smith, 215 Pa. 534. The appellee demurred to it on eight grounds. Whether the court below considered them all good, or some good and others bad, we do not know. All that we have from it is, “ Demurrer to petition sustained. Buie to, open judgment discharged.” The demurrer was filed on January 23, 1907, and there was ample time for an intelligent disposition of it. To this we are entitled. We sit as a court of review of what has been done by a court below, and in equity proceedings our review and correction are not confined to the decree alone, but extend to the induction or reasoning of the chancellor: Sproull’s Appeal, 71 Pa. 137. In this case several important questions were raised by the demurrer. It was the plain duty of the court below to pass upon them, or, at least, to state the ground or grounds upon which the demurrer was sustained, instead of sending the record to us for our consideration and disposition, in the first instance, of the' questions raised by the pleadings. This court is created for no such purpose and very few judges in the courts below seem to think otherwise. We return the record to the common pleas, that there may be made part of it the reasons for dismissing appellant’s petition. When so sent back to us this appeal will be disposed of.

Record remitted.


source: Caselaw Access Project

author: Me. Justice Beown,

license: Public Domain

text:
    Hanhauser v. Pennsylvania & New England Railroad Company, Appellant
    (No. 2).

      Judgment — Scire facias — Terre-tenant—Railroads—Contractors—Resolution of January 21, 1843, P. L. 367 — Act of April 4, 1862, P. L. 235.
    Where a scire facias has been issued under the Act of April 4, 1862, P. L. 235, supplementary to the Resolution of January 21, 1843, P. L. 367, on a judgment in favor of a contractor against a railroad company, an affidavit of defense of the party sought to be brought in as a terretenant is sufficient to prevent judgment, which avers that such party “ has never held and does not now hold any property, real or personal, which it derived either directly or indirectly from said defendant.”
    Argued March 26, 1908.
    Appeal, No. 74, Jan. T., 1908, by defendant, from order of C. P. No. 3, Phila. Co., March T., 1887, No. 147, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George Hanhauser, Administrator of the Estate of James Clarke, deceased, v. Pennsylvania & New England Railroad Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Scire facias to bring in terre-tenant.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Alex. Simpson, Jr., with him Wm. Y. C. Anderson and Wm. Jay Tiorner, for appellant.
    Judgment cannot be entered against one summoned as terretenant, who denies that it has or ever has had property which was liable to be sold to pay that judgment: Chahoom v. Hollenback, 16 S. & R. 425; Buckby v. Sturtevant, 28 Pa. Superior Ct. 552; Colwell v. Easley, 83 Pa. 31; Hulett v. Mut. Life Ins. Co. 114 Pa. 142; Colborn v. Trimpey, 36 Pa. 463; Day v. Willy, 3 Brewster, 43; Kelley v. Place, 11 Pa. Dist. Rep. 608; Hart’s App., 96 Pa. 355.
    The judgment also is bad because the record fails to show that plaintiff is entitled to the protection provided by the resolution of 1843: Com. v. R. R. Co., 122 Pa. 306; Reed’s App., 122 Pa. 565; Hart’s App., 96 Pa. 355.
    That our construction is correct is shown, moreover, b}r the practice in all the cases of claims under this resolution and act.
    In Fox v. Seal, 89 U. S. 424; Tyrone & Clearfield Ry. Co. v. Jones, 79 Pa. 60; P. C. & St. L. Ry. Co. v. Marshall, 85 Pa. 187; Woods v. P. C. & St. L. Ry. Co., 99 Pa. 101.

      Chester N. Farr, Jr., with him William C. Mayne and William A. Glasgow, Jr., for appellee.
    The defense that the terre-tenant holds no property bound by the lien of the original judgment, Under the law, as it stands at present, in Pennsylvania, cannot be raised: Haskins v. Low, 17 Pa. 64; Mitchell v. Hamilton, 8 Pa. 486; Catlin v. Robinson, 2 Watts, 373; Colwell v. Easley, 83 Pa. 31; Taylor’s App., 93 Pa. 21; Davis v. Michener, 106 Pa. 395; Hunter’s App., 40 Pa. 194; Artman v. Giles, 155 Pa. 409; Darrach v. Darrach, Troubat & Haly’s Pr. sec. 801; Dowling v. McGregor, 91 Pa. 410; Stroud’s App., 109 Pa. 326.
    October 5, 1908 :
   Opinion bt

Me. Justice Beown,

On March 22,1887, James Clarke, deceased, recovered judgment in the court below against the Pennsylvania & New England Eailroad Company for $34,084. It is claimed by the appellee, his administrator, that this judgment comes within the protection of the resolution of January 21,1843, P. L. 367, and the provisions of the supplement thereto of April 4, 1862, P. L. 235. There is some force in the position of appellant that, as the record fails to show that the judgment is within the protection of the resolution, it is not within the provisions of the supplement; but it is not necessary for us to now pass upon this question, for a single averment of the appellant in its affidavit of defense clearly stands in the way of appellee’s right to a summary judgment against it as a terre-tenant. After the Clarke judgment had been obtained various writs of scire facias were issued on it to bring in other railroad companies as terre-tenants, and against them judgments were entered. On November 24, 1905, this sci. fa. was issued, with notice to the appellant as a terre-tenant. In its affidavit of defense, deemed insufficient by the court below for no reason given, the laconic order, if intended for an opinion, being simply, Rule absolute for judgment for want of a sufficient affidavit of defense,” the first averment is: “ Said Lehigh and New England Railroad Company has never held and does not now hold any property, real or personal, which it derived either directly or indirectly from said defendant.” A reason given in the supplemental affidavit of defense why judgment should not be entered is : “ Because at the time of the issuance of said scire facias or at any time before or since, the Lehigh and New England Railroad Company did not own or hold or claim to own or hold and had not in its possession any real or personal estate that was ever owned or held by the Pennsylvania and New England Railroad Company, the above named defendant, or upon which the judgment recited in the said scire facias was a lien.”

The resolution of 1843 provides : “ It shall not be lawful for any company incorporated by the laws of this commonwealth, and empowered to construct, make and manage any railroad, canal or other public internal improvement, while the debts and liabilities, or any part thereof incurred by the said company to contractors, laborers and .workmen employed in the construction or repair of said improvement remain unpaid, to execute a general or partial assignment, conveyance, mortgage or other transfer, of the real or personal estate of the said company, so as to defeat, postpone, endanger or delay their said creditors, without the written assent of the said creditors first had and obtained ; and any such assignment, conveyance, mortgage or transfer shall be deemed fraudulent, null and void, as against any such contractors, laborers and workmen, creditors as aforesaid.” The supplement of 1862 is: “ Whenever any incorporated company, subject to the provisions of the above resolution, shall divest themselves of their real or personal estate, contrary to the provisions of the said resolution, it shall and may be lawful for any contractor, laborer or workman employed in the construction or repair of the improvements of said company, having obtained judgment against the said company, to issue a scire facias upon said judgment with notice to any person, or to any incorporated company claiming to hold or own said real or personal estate, to be served in the same manner as a summons upon the defendant, if it can be found in the county, and upon the person or persons, or incorporated company claiming to hold or own such real estate ; and if the defendant cannot be found, then upon the return of one nihil and service as aforesaid, on the person or persons, or company claiming to hold or own as aforesaid, the case to proceed as in other cases of scire facias on judgment against terretenants.”

If this were a proceeding to continue the lien of an ordinary judgment against a purchaser from the defendant in it as terretenant, a plea such as this affidavit of defense must be regarded to be, would be good: Colburn v. Trimpey, 36 Pa. 463; Colwell v. Easley, 83 Pa. 31; Hulett v. Mutual Life Insurance Co., 114 Pa. 142. In Colwell v. Easley, Colwell, the defendant below, had been summoned as a terre-tenant. His plea was, “ The judgment sought to be revived by scire facias is no lien on the lands of J. A. Colwell, and never was.” In reversing the court below for striking this off, and in holding that the plea was good, we said, after reviewing the authorities : “We are warranted in saying that a plea, by one summoned as a terre-tenant, that' his land was not and never had been bound by the judgment, would be good. . . . From the reasoning thus borrowed from our books we are led to conclude, 1. That when one is brought into court, who has had no connection with the debtor’s title, he should be discharged either by nonsuit or a verdict in his favor, for he is not a terre-tenant; he cannot be bound by the judgment and he ought not to have been summoned; 2. If he has had connection with the debt- or’s title, though the lien of the judgment may not have attached at the time of his purchase by reason of its previous expiration, he may nevertheless be warned as a terre-tenant, and may defend under the plea that the judgment is not, and never was, a lien upon his land. It follows that the court erred in striking out the second plea of the defendant.”

But this is not the ordinary proceeding by scire facias against a terre-tenant. The writ is issued under the act of 1862, which provides who, and who only, may be summoned by it, namely, any person or any incorporated company claiming to hold or own the real or personal estate which belonged to the original defendant, and when such person or incorporated company is summoned into court, “ the case proceeds as in other cases of scire facias on judgment against, terre-tenants.” Instead of claiming to hold or own any real estate that ever belonged to the Pennsylvania & New England Railroad Company, the averment is that the appellant “ has never held and does not now hold any property, real or personal, which it derived either directly or indirectly from said defendant.” This is certainly a defense under the act of 1862, and, if made out, the appellee may not have judgment against the appellant either de terris or de propriis as to costs. The averment may not be true, and on the trial the appellant may not be able to sustain it, but, for the present, we must assume it to be true, as there is nothing in the record conclusively showing that it is not.

Judgment reversed and procedendo-awarded.


author: Mr. Justice Brown,

text:
    Lehigh & New England Railroad Company, Appellant, v. Hanhauser.

      Judgment — Railroads—Contractor—Resolution of January 21, 1843, P. L. 367, Act of April 4, 1862, P. L. 235.
    Where a judgment has been entered by a contractor against a railroad company, and various other railroad companies have been brought in as terre-tenants under scire facias proceedings under the act of April 4, 1862, the court of common pleas of another county sitting as a court of equity has no jurisdiction to entertain a bill in equity filed by a railroad company, successor of the terre-tenants, averring that such judgment was a cloud upon the complainant's title in the county where the bill is filed, and praying that such judgment be decreed to be not a lien upon complainant’s property in the court in which the bill is filled, and for an injunction to restrain the holders of the judgment from making, or causing to be made, by virtue of it, any levy upon said property. In such a ease the situs of the property in no way controls the question of jurisdiction.
    A judgment in one county is not a lien against property in a second county; if the judgment is transferred to the second county the courts thereof have no jurisdiction to question its validity; and if a testatum fi. fa. issues from the court of the first county to the sheriff of the second county, the courts of the latter county have no control thereof.
    Argued March 26,1908.
    Appeal, No. 46, Jan. T., 1908, by plaintiff, from decree of C. P. Northampton Co., Sept. T., 1907, No. 2, dismissing bill in equity in case of The Lehigh & New England Railroad Company v. George Hanhauser, Administrator of the Estate of James Clarke, deceased, and William C. Mayne.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity to quiet title and for an injunction. Before Stewart, J.
    In addition to the facts stated in the opinion of the Supreme Court, it appeared that the judgment referred to in the bill was a contractor’s judgment, and that the various writs of scire facias to bring in other railroad companies as terre-tenants were issued under the act of April 4, 1862: The defendants demurred to the bill. The court sustained the demurrer and dismissed the bill.

      Error assigned was in dismissing the bill.

      Edward J. Fox and James W. Fox, with them Wm. Y. G. Anderson, for appellant.

      Chester EF. Barr, Jr., U. J. Steele and William A. Glasgow, Jr., for appellees, were not heard.
    October 5, 1908:
   Opinion by

Mr. Justice Brown,

If the appellant be entitled to the relief prayed for in its bill, the court below was not the place to go for it. On March 22, 1887, James Clarke recovered a judgment in the court of common pleas No. 3 of Philadelphia county against the Pennsylvania & New England Railroad Company. Upon this judgment various writs of scire facias were issued from time to time, and on October 24, 1906, judgment was entered against the original defendant and certain railroad companies summoned as terre-tenants for $96,922.42. The appellant, as the successor of these terre-tenants, avers in its bill that this judgment is a cloud upon its title to rights, property, franchises and assets within the county of Northampton, and prays that it be decreed to be not a lien upon the same and for an injunction to restrain the holders thereof from making, or causing to be made, by virtue of it, any levy upon the said rights, property, franchises and assets.

The cloud which the appellant alleges rests upon its title to property in Northampton county, and which it would have removed therefrom, is a judgment entered in one of the courts of Philadelphia county against the Pennsylvania & New England Railroad Company and five terre-tenants. That judgment was not taken against the appellant as a terre-tenant, but, even if it had been, it would not be a lien against any of its property outside of Philadelphia county. As no property outside of that county is affected by the entry of the judgment there, it cannot rest as a cloud upon any property of the appellant in Northampton county; and if it should be transferred to that county under the Act of April 16,1840, P. L. 410, its court of common pleas would have no right to inquire into the validity, merits or effect thereof: King v. Nimick et al., 34 Pa. 297. One court cannot modify, disregard or set aside the judgment of any other court of co-ordinate jurisdiction : Doyle v. Commonwealth, 107 Pa. 20. A judgment entered on an exemplification of the record does not become a judgment in the common interpretation of the word in the county to which it is transferred. The judgment on the exemplification is but the record evidence of the existence of the judgment in the county in which it was obtained, and the court to which it is transferred has no power over it save for lien and execution and cannot inquire into its validity or make orders affecting its operation. All inquiries into the effect of a judgment as establishing the rights of a plaintiff under it must be made to the oourt that pronounced it: Nelson v. Guffey, 131 Pa. 273.

If the validity and effect of the judgment in Philadelphia county cannot be inquired into and passed upon by the court of common pleas of Northampton county, if transferred into that county, much less can that court say what may be done with or under a writ of execution on it directed by the common pleas of Philadelphia county under statutory authority to the sheriff of Northampton county. In executing such a process the sheriff of that county would become, for the time being, the officer of the Philadelphia court, to which alone he would make return, and in the execution of his writ the court of his own county would have no more control over him or the writ, or the holders of the judgment on which the same issued, than it would have over a United States marshal with a writ of fieri facias in his hands, or- over the plaintiffs therein in their attempt to enforce their rights under their judgment in the federal court... As to this the learned chancellor below, in his opinion sustaining the demurrer to the bill, properly and well said: “If.a testatum fi. fa. had been issued, and the present bill had been filed, exactly the same case would be presented as was presented in Nelson v. Guffey, 131 Pa. 273, where it was held : It is error in the court of the county to which such testatum fieri facias is directed, to proceed by bill in equity, filed by the defendant, to enjoin the plaintiff from prosecuting its enforcement.’ The subject-matter or thing in controversy is this judgment of the court of common pleas No. 3, for the county of Philadelphia. It is immaterial that our process would be directed to the defendants in the present case. The effect of our decree would be an interference with a proposed action of thé .defendants in the court of common pleas No. 3, for the county of Philadelphia, where all the parties to the present suit, as appears by the bill, are interested, either as the successor of terre-tenants, who have had judgments entered against them, or as a party to the suit still pending in that court upon the same judgment, to recover against the present plaintiff as a terre-tenant. The jurisdiction of the court of common pleas No. 3, for the county of Philadelphia, is ample to protect the present plaintiff upon the same allegations, if application is made to it, either on the law or equity side.” To this we cannot profitably add anything, except to say that not only public policy, but the set-tied authorities will not permit any interference by any other court with the judgment entered or directed to be entered by the common pleas of Philadelphia county, or with the process which the legislature directs may go out upon it from that court.

One of the contentions of the appellant is that the situs of the property controls the question of jurisdiction in this case. As jurisdiction over those holding the judgment may be obtained by a proceeding in equity in Philadelphia county, the location of the property in Northampton county is immaterial: Schmaltz v. York Mfg. Co., 204 Pa. 1; Clark v. Clark, 180 Pa. 186; Clad v. Paist, 181 Pa. 148; Kendall v. Coke Co., 182 Pa. 1.

The decree of the court below is affirmed at appellant’s costs.


author: Mr. Chief Justice Mitchell,

text:
    Rielly v. Stephenson, Appellant.

      Waters — Surf ace waters — Shutting out the surface flow — Improvement of lots — Damnum absque injuria.

    The owner of a lot in a city or town, in grading and improving the lot may shut out the surface flow upon his lot without any obligation on his part to prevent it from flowing over the adjacent land, or to lead it by artificial or other means to a sewer or other avenue of escape; but in making the improvement he may not proceed negligently so as to do unnecessary damage to others; nor may he obstruct a natural channel for the flow of the water, or a channel that has acquired the character of an easement; nor may he gather surface water into a body and discharge it on the adjoining land.
    On a bill in equity it appeared that the parties owned adjoining lots on an opened and paved street in a city. The land was on a sloping hillside so that the surface drainage from rain, etc., ran over both lots from the rear to the front. The defendant improved his lot first and in so doing raised the grade in parts. He did not change the character or direction of the flow nor add to the volume of it, except that in consequence of the raised grade the water which had previously spread over the surface of both lots now ran over plaintiff’s. It did not appear that the defendant was negligent in making the improvement, nor that he closed up any natural channel or any channel acquired by easement. Held, that the defendant was not liable to plaintiff for any damages by reason of an increased flow of water on the plaintiff’s lot.

      Argued April 15, 1908.
    Appeal, No. 77, Jan. T., 1908, by defendants, from decree of C. P. Luzerne Co., Dec. T., 1907, No. 4, on bill in equity in case of Cornelius M. Rielly v. Joseph Stephenson and Helen Stephenson.
    Before Mitchell, C. J., Fell, Mesteezat, Pottee and Stewaet, JJ.
    Reversed.
    Bill in equity for an injunction. Before Halsey, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a final decree as follows:
    Now, February 8, 1908, this cause came on to be further heard at this term and was argued by counsel and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, viz.: That the said defendants be forthwith required to make provision by adequate and sufficient means for the flow and passage of surface water which naturally passed into and over the same before they improved their said lot, in such a way as not to cause damage or injury to the property of plaintiff.

      Error assigned was the decree of the court.

      M. J. Mulhall, with him TP. L. Boeder, for appellant.
    These defendants had a lawful right in the exercise of their dominion over their soil, if they saw fit, to erect on the rear of their lot, and of its full width, a building or other structure which would have been an impassable barrier to the surface water that reached it, and in order to prevent it from reaching the plaintiff’s lot adjoining, they were under no legal duty to take care of it: Bowlsby v. Speer, 31 N. J. L. 351; Grant v. Allen, 41 Conn. 156; Chadeayne v. Robinson, 55 Conn. 345 (11 Atl. Repr. 592); Barkley v. Wilcox, 86 N. Y. 140; Strauss v. Allentown, 215 Pa. 96.

      John MoGahren, for appellee.
    Natural drainage channels cannot be obstructed by one lot owner, so as to inflict damage and injury upon another: Bentz v. Armstrong, 8 W. & S. 40; Davidson v. Sanders, 1 Pa. Superior Ct. 432; Davidheiser v. Rhoads, 25 W. N. C. 513; Keating v. Pittston, 8 Kulp, 421; Lucot v. Rodgers, 159 Pa. 58; Glass v. Fritz, 148 Pa. 324; Meixell v. Morgan, 149 Pa. 415; Frederick v. Lansdale Borough, 156 Pa. 613; Bohan v. Avoca Borough, 154 Pa. 404.
    October 5, 1908:
   Opinion by

Mr. Chief Justice Mitchell,

The parties own adjoining lots on an opened and paved street in the city of Wilkes-Barre. The land was on a sloping hillside so that the surface drainage from rain, etc., ran over both lots from the rear to the front. The defendant improved his lot first, and in so doing raised the grade in parts. He did not change the character or direction of the flow nor add to the volume of it, except that in consequence of the raised grade the water which had previously spread over the surface of both lots now ran over plaintiff’s. It was a natural and inevitable result of the defendant’s improvement of his lot, and it is not charged that it was negligently done.

It was averred in the bill that defendant’s lot had a dip or hollow which made a natural channel through which the water from plaintiff’s lot was accustomed to flow, and that this had been filled up. But the court below expressly refused to find that there had been a channel, and the evidence would not have sustained a finding of such fact. The land in its natural state was uneven with occasional depressions, in which the water would collect temporarily and then gradually drain off. There was nothing that could properly be called a channel.

The learned judge below found all the facts in favor of the defendants, including the following :

“ 3. The land, of which both lots are a portion, was originally undulating land used for'farm purposes, and it has been laid out in building lots and streets for many years.

“ 4. The opening and grading of streets, the construction of sewers, and the erection of buildings in the natural expansion of the city, adjacent to the plaintiff’s and defendants’ lots, have changed the surface of the land as it existed in a state of nature.

“ 7. The opening of Jones street and Essex lane, and the erection of buildings thereon, changed and increased the natural flow of the surface water on .the land adjacent to the plaintiff’s and defendants’ properties.”

He also found as matter.of law “that the defendants had the right to grade their lot in the manner described without regard to the natural drainage of the locality.” But he added the qualification that “ in doing so, however, the owner of a lot must take care of the drainage of the surface water by means of artificial appliances so as not to injure or damage the other or adjacent 'land holders.” The correctness or error of this rule is the question in the case.

The ruling of the learned judge below was made in deference to the language and supposed decision of Kennedy, J., in Bentz v. Armstrong, 8 W. & S. 40, and the cases of Davidson v. Sanders, 1 Pa. Superior Ct. 432, and McMahon v. Thornton, 5 Pa. Superior Ct. 495, which were based upon it. But the decision in Bentz v. Armstrong was upon a much narrower point, and the language of Justice Kennedy has been extended to apply to a state of facts to which it was never applicable. The plaintiff in that case claimed the right to turn the rain water which fell upon his lot, and also the water of a spring on his lot, on to the lot of defendant. The latter placed an obstruction on his own lot which turned the water back on the plaintiff’s lot. The trial judge charged the jury that the plaintiff had established his right to an easement. On this point the case was reversed, Kennedy, J., saying, “ It does not appear to us that any facts have been testified to going in the slightest degree to establish the plaintiff’s right to an easement such as he claims in this case.” That is the whole extent of the actual case decided. But Justice Kennedy then proceeds to discuss a feature of the case that had evidently been argued, and his language is certainly as favorable to the defendants in the present case as to the plaintiff : “ In the purchase of lots of ground laid out and sold for the purpose of building up towns or cities thereon, it has ever been understood, and such has been the practice and usage, too, that the natural formation of the surface will, and indeed must, necessarily, undergo a change in the construction of buildings and other improvements that are designed and intended to be made. In doing this it would seem to be right that the common benefit and convenience of the respective owners of adjoining lots should be consulted and attended to, but certainly no one ought to be restrained from improving his lot in such a manner as to make it answer the purpose for which it was laid out, sold and purchased, if practicable, without overreaching upon his neighbor’s lot. Ho ought to be permitted to form and regulate the surface of it as be pleases, either by excavating or filling up, as may be requisite to the convenience and enjoyment of it, taking care, however, not to produce any detriment or injury to his neighbor in the occupation or enjoyment of his adjoining lot.” • So far this is sound law and in accordance with all the decisions. But when the learned justice adds: “ It is of great importance that the water from each lot arising from rain or other cause should be conducted by the owner or occupier thereof, if he wishes to have it removed, directly from it to a sewer or other place appropriate for the receipt and discharge of the same, and not be turned or let on to an adjoining lot, .... and it appears to me to be the duty of the owner of each lot if he improves it to do it in such way, if practicable, as to lead and conduct the water that happens to fall upon it, off in the way mentioned.” This is mere dictum not authorized by sound general principles and not consistent with the rules previously established in the same opinion.

The owners of lots in cities and towns buy and own with the manifest condition that the natural or existing surface is liable to be changed by the progress of municipal development. All such owners have equal rights neither lessened nor increased by priority of improvement, and the primary right of each owner is to protect himself and his lot from loss or inconvenience from the flow of surface water. The owner at the foot of the slope is under no obligation to allow his lot to continue as a reservoir for the surplus water of the neighborhood. He may shut it out by grading or otherwise and the fact that thereby he may incidentally increase the flow on the adjoining lot, neither makes him answerable in damages nor affects the adjoining owner’s right in his turn to shut out the original, plus the increased flow on his lot. The owner cannot be coerced as to time or manner of improvement by risk of having put upon him the burden of providing for the flow upon others.

Some things of course he may not do. He may not proceed negligently so as to do unnecessary damage to others. But so far as he acts upon his right to protect his enjoyment of his own property, any incidental loss to his neighbor is damnum absque injuria. It is clearly settled, however, first, that he may not obstruct a natural channel for the flow of the water, or a channel that has acquired the character of an easement; and, secondly, he may not gather surface water into a body and discharge it on the adjoining land. His right is to shut out the invading water, as a common enemy, for the protection of his own land.

Notwithstanding the dictum in Bentz v. Armstrong, and the questionable application of it in a few later cases, these principles are fundamental and have never been successfully questioned. The latest case on the subject is Strauss v. Allentown, 215 Pa. 96, in which it was sought to charge a municipality with damages for loss of value of land by increased flow of water from the change of surface conditions. It was practically conceded throughout the case that an individual owner would not be answerable, and it was held that the municipality was equally exempt from liability from increased flow of water incidental to surface changes in the course of municipal development.

The qualification applied in this case that the right of the owner to shut out the surface flow from his lot is accompanied by an obligation to prevent it'from flowing over the adjacent land and to lead it by artificial or other means to a sewer or other avenue of escape, is totally irreconcilable with the conceded right of protection of his lot already discussed, and is not sustained by authority or on general principles. The cases in New Jersey, Connecticut and Massachusetts which have considered this exact question are uniformly against any sueh obligation.

Decree reversed and bill directed to be dismissed with costs.


author: Mr. Justice Stewart,

text:
    Floyd v. Kulp Lumber Company, Appellant.

      Ejectment — Tax title — Seated and unseated lands — Admission by predecessor in title — Prior ejectment — Evidence.
    In an action of ejectment where the defendant exhibits a title derived from the treasurer’s sale for taxes assessed in a particular year on the land as unseated, entirely regular in form and long subsequent to the acquisition of the title exhibited by plaintiffs, derived from a like sale, the prima facie is with the defendant, and the burden is on the plaintiffs to prove an allegation made by them that the land was assessed in the same year as seated land as well, and therefore exempt from sale.
    In such a case assessment lists for the year immediately preceding the year in question and for the two following years are not evidence of the issue raised, but if no prejudice results from their admission, the error is harmless, and a judgment will not be reversed for that reason alone.
    In an action of ejectment where the defendant relies on a tax sale of the lands as unseated lands in a particular year, and the plaintiffs allege that the lands were assessed on the seated list as well, and therefore exempt from sale as unseated lands, and it is claimed by the defendant that the lands on the seated list, although of the same acreage, and in the name of the same owner were different lands, the plaintiffs may be .permitted to offer in evidence the record of a prior ejectment in which defendant’s predecessors in title were parties, and to show from the pleadings, the request for instructions and the assignments of error in such record, admissions by the defendant’s predecessors inconsistent with the claims set up by defendant. If, however, judgment in such prior ejectment was reversed, and the plaintiff subsequently suffered a nonsuit, the verdict and the judgment are not evidence as to anything, although the pleadings, points and assignments of error are extra judicial admissions of the parties, and as such are evidence.
    In such a case the admissions of defendant’s predecessors in title, whether made in the pleadings or in the concession of the attorneys of record, are binding upon the defendant because of the privity of title between him and his predecessors. Such admissions, however, are not conclusive so that the court may base binding instructions upon them, but they are evidence for the jury to determine whether the land in question was on the seated list as well as on the unseated list in the same year.
    Where a writing is not a dispositive instrument, but is put in evidence merely to show an extrinsic fact, it will be for the jury to say what inference is to be drawn therefrom. When documents are offered in evidence as the foundation of an inference of fact, whether such inference can be drawn from them is a question for the jury.
    Argued April 21, 1908.
    Appeal, No. 32, Jan. T., 1908, by defendant, from judgment of C. P. Huntingdon Co., May T., 1907, No. 11, on verdict for plaintiffs in case of J. B. Floyd, Samuel M. Floyd, Mary E. Floyd, Jane A. Floyd and Emma A. Floyd, daughter of Henry Floyd, deceased, v. Kulp Lumber Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Reversed.
    Ejectment for land in Jackson township. Before Shull, P. J., specially presiding.
    At the trial the defendant claimed title under a tax sale of the land as unseated land. The plaintiffs claimed title under an earlier tax sale, and asserted that in the year in which the defendant claimed that the lands were assessed as unseated lands, they were also on the seated list, and therefore exempt from sale as unseated lands. The year in question was the year 1838. Plaintiffs offered in testimony the assessmnts for the years 1837, 1838, 1839 and 1840. These assessments were admitted under objection and exception. ■ [1]
    Plaintiffs made the following offer:
    Mr. J. S. Woods: I now offer continuance docket “T” No. 1, page 62, at the record of No. 38, January Term, 1845, being an action of ejectment between Adin W. Benedict and David Milliken, and Samuel Milliken was afterwards admitted to defend as landlord, with the writ of ejectment and other papers in the case, together with the pleadings and all the papers filed in that suit; for the purpose of showing that the land in controversy in No. 38, January Term, 1845, is the identical land of which the land in the present suit is an undivided one-half part, and for the further purpose of showing that on the trial of that case David and Samuel Milliken, under whom the defendant claims title, proved that the land in controversy in this suit, which was assessed on the unseated list in Barree township for the year 1838, is the identical land assessed in Barree township on the seated list to Henry Steely for the year 1838, and that the taxes on the list for 1838 were paid before the sale to David Milliken in 1840.
    Mr. Henderson: The offer is objected to.
    1. For the reason that it is wholly incompetent and inadmissible.
    2. For the reason that the record of this case, open to the inspection of the court, does not contain any evidence by David or Samuel Milliken that the tract of land involved in the present suit is the same tract as is alleged to have been assessed as the seated list in 1838.
    3. For the reason that the action brought to No. 38, January-Term, 1845, was brought by A. W. Benedict against David Milliken and Samuel Milliken for the recovery of the land therein mentioned upon the basis of an alleged tax sale to A. W. Benedict for taxes for the years 1839 and 1840, and not for taxes of 1838.
    4. That under the issue in No. 38, January Term, 1845, the question of the taxation of the land involved in that suit for the year 1838 was not in issue and not a matter material to the determination of the case, the sale having been made to Benedict as alleged by the plaintiffs in that case for the tax of 1839 and 1840.
    5. For the reason that the notes of testimony in the action to No. 38, January Term, 1845, are not admissible in evidence.
    6. For the reason that the bill of exceptions referred to in the plaintiffs’ offer in this case as being filed to No. 38, January Term, 1845, are not admissible or competent as evidence in this action.
    7. For the reason that the action now being tried is not between the same parties, nor the successors in title to the same parties, who were plaintiffs and defendant in the action to No. 38, January Term, 1845.
    8. For the reason that the record in No. 38, January Term, 1845, and the papers filed to the said action, do not show that there was proof that Henry Steely had paid the taxes on the land involved in that action assessed upon the seated list for 1838 before the sale to A. W. Benedict, or at any time.
    The Court: Objection overruled. Evidence admitted. Bill of exceptions sealed for defendant. [2]
    Mr. J. S. Woods: I will read this record:
    “Adin W. Benedict v. David Milliken, and Samuel Milliken, Landlord. No. 38, January Term, 1854. Alias Ejectment. See No. 98, November Term, 1844.”
    Sheriff returns: “Served by leaving a copy of writ with the defendant on the premises.” January 11,1845, plaintiffs’ declaration and description filed. Mr. Gwin appears for defendant, etc.; continued; April continued; August continued; November continued; January, 1846, continued; April continued.
    And now, June 18, 1846, plaintiffs enter a rule on defendant to plead in six weeks or judgment. July 25, 1846, defendant pleads “not guilty.” Issue and rule for trial. August continued. November Term, 1846 (fourteenth day), by leave of the court, A. Gwin, Esq., withdraws his appearance for defendant, and by the consent A. P. Wilson, Esq., is substituted as attorney for defendant. Continued.
    And now, April Term, 1847, do say that they find for the plaintiff, with six cents damages and six cents costs.
    And now, April 20, 1847, Mr. Miles, on behalf of defendant, moves the court for a new trial for reasons filed. Now, July 27, 1847, rule at instance of defendant to take depositions on five days’ notice. And now, to wit: February 16,1848 (by order of Judge Wilson filed), motion for a new trial overruled and new trial refused. And now, March 1, 1848, at instance of plaintiffs, they having first paid jury fee, judgment on the verdict. Judgment.
    Recognizance of bail for writ of error filed March 14, 1848; March 17, 1848, writ of error filed; April 18, 1848, charge of the court filed; August Term, 1851, continued; November 10,1851, rule on part of defendant to take depositions of William D. Black on twenty hours’ notice. And now, to wit: November 12, 1851, record returned and filed with a service thereon that at a Supreme Court held at Harrisburg in and for the middle district of the commonwealth of Pennsylvania, the judgment of the court of common pleas was reversed on May 29, 1848, and a venire facias de novo awarded.
    And now, to wit: November 15, 1851, plaintiffs become nonsuit. Judgment.
    Mr. J. S. Woods: I will now read the plaintiffs’ exhibit 16:
    “A. W. Benedict v. David Millilcen and Samuel Milliken. The court are requested to charge the jury as follows:”
    1. That if the jury believe from the evidence that the tract of land containing 400 acres assessed in the seated list to Henry Steely in the years 1837,1838,1839 and 1840 is the George Hill tract sold in 1842 to the plaintiffs, and that the taxes charged to the said Henry Steely in the duplicates of 1839 and 1840 were paid-to the collector previous to the sale made by the treasurer to the plaintiffs, the sale is void and gave, the plaintiffs neither title nor color of title, and they cannot recover in this suit.
    2. That no acquisition of any interest in the title of Henry Steely by the plaintiffs from the widow of Henry Steely since the institution of this suit, which has not vested in them at the time of the institution of this ejectment, can avail them to enable them to support this suit.
    3. That if there were any taxes due on the lands in controversy in this suit at the time of the treasurer’s sale in June, 1840, to David Milliken, his tax title is a sufficient defense against the claim of the plaintiffs in this action.
    Mr. Henderson: I especially object to the exhibit just offered and*read for the reason that it is wholly incompetent and inadmissible.
    The Court: Objection overruled. Evidence admitted. Bill of exceptions sealed for defendant. [3]
    Mr. J. S. Woods: I offer now, still under the former offer, plaintiffs’ exhibit 17, G. E. S., being the assignments of error signed by A. P. Wilson for the plaintiffs in error.
    Mr. Henderson: This exhibit is specially objected to for the reason that it is incompetent, inadmissible and immaterial for the purpose offered.
    The Court: Objection overruled. Evidence admitted. Bill of exceptions sealed for defendant. [4]
    Read as follows: Plaintiffs’ exhibit 17, G. E. S.
    “Adin W. Benedict, plaintiff below, v. David Milliken and Samuel Milliken. Assignment of errors.”
    The plaintiffs in error assign as error:
    1. The court erred in admitting in evidence the treasurer’s deed to A. W. Benedict as stated, in the first bill of exceptions.
    2. The court erred by adihitting in evidence the plaintiffs’ writ of ejectment.
    3. The court erred by refusing to allow defendant below to ask George Wilson whether he did not know of David Milliken cutting shingles, the question proposed in the third bill of exceptions.

      4. The court erred in rejecting the evidence offered to be proved by W. S. Africa contained in the fourth bill of exceptions taken on part of the defendant.

      5. The court erred in rejecting the evidence offered to be proven by Jacob Cresswell as embraced in the fifth bill of exceptions taken on part of defendant.
    6. The court erred by admitting in evidence the will of Henry Steely as embraced in the sixth and seventh bills of exceptions.
    7. The court érred by admitting in evidence the release of Mary Steely to the plaintiffs below as embraced in the third bill of exceptions on part of the defendant.
    In the charge:
    1. The court erred in that part of their instruction to the jury in relation to the filing of the plaintiffs’ bond given to the treasurer.
    2. The court erred in saying to the jury: “It was perfectly competent to tax the land in the name of Henry Steely or his heirs who had become the owners of the Wilson title, and if so charged and the tax paid, after such payment it could not be legally sold for the tax charged upon it as an unseated tract, the title would remain in the heirs or devises of Henry Steely; still a purchaser at such sale might recover the land against an intruder, that is, against one who enters without title or color of title, and who has nothing but his naked possession.”
    3. The court erred in their instruction to the jury in relation to the effect of the outstanding title of Henry Steely.
    4. The court erred in saying to the jury in relation to the identity of the George Hill tract and the tract assessed in the name of Henry Steely, “If they are not the same, the plaintiff will be entitled to recover, and in the second place if you find that the assessments are for the same land, then, did not all the. taxes assessed upon it as a seated tract for 1839 or 1840 remain unpaid at the time of the purchase by Mr. Benedict?”
    5. The court erred in their instruction to the jury by putting the case upon the question whether the tax of 1839 in the seated list in the name of Henry Steely was paid before the sale to Mr. Benedict.

      6. The court erred in their instruction to the jury in relation to'the collector’s duplicates in submitting the question to the jury to determine whether the tax had been paid, and as to the effect of the marks (+) in the duplicates, and in not instructing that as the collector was a public officer, and was dead, that the legal presumption was that he did his duty and collected the tax.
    The court gave binding instructions for plaintiffs.
    Verdict and judgment for plaintiffs. Defendant appealed.

      Errors assigned among others were (1-4) ruling on'evidence, quoting the bill of exceptions; and (9) in directing a verdict for the plaintiffs.

      W. M. Henderson, with him A. Reed Hayes, for appellant.
    If a prior action is between other parties than those in the present suit, and there is no privity between them, the verdict and judgment in the prior suit is inadmissible to prove any essential allegation or fact established thereby, or which was necessary to the rendition thereof: Stinchcomb v. Marsh, 15 Gratt. (Va.) 202; In re Walters, 61 L. T. 872; Morgan v. Nicholl, L. R. 2 C. P. 117; Livingston v. Cox, 8 W. & S. 61; Foster v. Shaw, 7 S. & R. 156.
    Conditions which warrant the application of an estoppel must be clearly proved: Giddings v. Emerson, 24 Conn. 538; Andrews v. Lyons, 93 Mass. 349.
    Whatever was the testimony offered on the part of Milliken, or whatever were their averments in the trial of that case, the verdict and judgment were adverse to them. They failed in their contention: McQueen’s App., 104 Pa. 595; Baily v. Baily, 44 Pa. 274.
    An averment in a former suit is admissible as evidence in the subsequent proceedings, but it is not conclusive unless the decision in the former suit was favorable to the averment: Assignment of John Treffeison, 3 Kulp, 308; Gillespie v. Mather, 10 Pa. 28; Zeigler v. Hautz, 8 Watts, 380; Lorain v. Hall, 33 Pa. 270; Lentz v. Wallace, 17 Pa. 412; Hibshman v. Dulleban, 4 Watts, 183.

      James S. Woods, with him W. H. Woods, for appellees.
    A party who seeks and obtains a particular judgment cannot afterwards repudiate or impeach it, or avoid its conclusive effect, by setting up a claim, or alleging facts inconsistent with his former contention: Goodman v. Losey, 3 W. & S. 526; Baily v. Baily, 44 Pa. 274; Murray’s Est., 2 Pa. Dist. Rep. 681.
    Judgment determining title to land, claimed by two persons, runs with it, and binds all persons claiming through either party, by a title acquired after the rendition of the judgment: Baily v. Baily, 44 Pa. 274.
    Only as extrajudicial admission can the statements of a party in his pleadings, be used against him in another. These statements may be used in that quality by a stranger in the former litigation: Truby v. Seybert, 12 Pa. 101; Knupp v. Brooks, 200 Pa. 494; Baldwin v. Taylor, 166 Pa. 507; Hollard v. Kindregan, 155 Pa. 156; Lonzer v. R. R. Co., 196 Pa. 610.

      S. P. Wolverton, with him A. Reed, Hayes and W. M. Henderson, for appellant,
    in reply, cited: Sample v. Coulson, 9 W. & S. 62; Blackmore v. Gregg, 10 Watts, 222; Cluggage v. Duncan, 1 S. & R. 111; Chase v. Irvin, 87 Pa. 286; Lineberger v. Newkirk, 179 Pa. 117; Velott v. Lewis, 102 Pa. 326; Miller v. McCullough, 104 Pa. 624; McClements’s App., 2 Pa. Superior Ct. 443.
    October 5, 1908:
   Opinion by

Mr. Justice Stewart,

To defeat plaintiffs in their action, defendant relied upon a title which had its origin in a treasurer’s sale of the land in dispute for unpaid taxes, assessed for the year 1838 on the land as unseated. No question was raised as to compliance with legal requirements in connection with this sale, or that the defendant had legally succeeded to the title acquired thereby. The one question in the case was, whether this particular tract was assessed for the year 1838 as seated land as well. It was conceded that if assessed as seated land for that year, it was not liable to sale for taxes assessed as unseated land, and that a purchaser under such a sale could acquire no title. The defendant having exhibited a title derived from a treasurer’s sale for taxes assessed on the land as unseated, entirely regular in form, and long subsequent to the acquisition of the title exhibited by plaintiffs, derived from a like sale, the prima facies was with the defendant, and the burden was on the plaintiffs to prove the alleged defect in the later title; that is, that the land was assessed in the year 1838 as seated land, and therefore exempt from sale. To this end they offered the assessment lists for the years 1837, 1838, 1839, 1840. All were embraced in one offer. The relevancy of the list for 1838 is obvious; but how the other lists could reflect any light upon the question at issue is not apparent. If they had any relevancy, it certainly was not disclosed in the offer, and we see nothing in the case that made them pertinent, at least in the connection in which they were offered. Had prejudice resulted from their admission, it would have been sufficient ground for reversal under the first assignment of error; but so far as we can see the error was harmless. The lists show that in each of these years this particular tract, distinguished as the land included in the George Hill warrant, containing 400 acres in Barree township, was assessed as unseated land. The title to the tract was admittedly in Henry Steely, who died in 1838. The lists of seated land during these same years showed several tracts assessed in the name of Henry Steely, one of them being for 400 acres in Barree township, but without any other description whatever. The mere fact that the assessments are upon tracts of land of equal acreage, would not of itself warrant an inference that the tracts were one and the same. To establish their identity, plaintiffs were allowed, under objections to be considered later on, to introduce in evidence the record as it appears in the continuance docket of a former action of ejectment brought to No. 38, January Term, 1845, for the same tract of land, between Adam W. Benedict plaintiff, and David Milliken and Samuel Milliken defendants, with the writ and other papers filed in that case; “for the purpose” — so runs the offer — “of showing that the land in controversy in No. 38, January Term, 1845, is the identical land of which the land in the present suit is an undivided one-half part; and for the further purpose of showing that on the trial of that case David and Samuel Milliken, under whom the defendant claims title, proved that the land in controversy in this suit,, which was assessed on the unseated list in Barree township in 1838, is the identical land assessed in Barree township on the seated list to Henry Steely for the year 1838, and that the taxes on the seated list for 1838 were paid before the sale to David Milliken in 1840.” That the evidence included in this offer had tendency to prove the fact contended for, is quite apparent; and the only question was as to the weight and force to be allowed it. The effort on the part of the defendant in that action was to defeat the plaintiff’s claim of title under the treasurer’s sale to Benedict, by showing that in the years 1839 and 1840 the tract now in dispute was assessed as seated land. This was one of the" questions submitted to the jury and the verdict was for the plaintiff. On appeal to this court— Milliken v. Benedict, 8 Pa. 169 — the judgment was reversed with a venire, upon considerations which do not here concern us, and which therefore need no further reference. The last entry in the continuance docket under this particular number is, “Now, 15 Nov., 1851, plaintiff becomes nonsuit. Judgment.” It thus appears that there was no judicial determination of any matter in that case which could in any wise prejudice the defendant in this. The effect of the reversal of the judgment was to place the parties to the action in the same condition as they were before the judgment was rendered; their respective rights after reversal were just what they would have been had the case never been tried. How or why the plaintiff “became non-suit,” does not appear, nor is it of any consequence to inquire. It is enough to know that it could not have been because of anything the defendants had done. That judgment followed non-suit is immaterial; for neither judgment nor verdict helps in any way to identify the land in controversy as the land that was assessed as seated. No facts were established by either side through any judicial inquiry touching the merits of this controversy. It follows that the verdict and judgment being wholly irrelevant, were improperly admitted. Not so, however, with respect to the papers in the case — the pleadings, the requests for instructions, and the assignments of error. These were offered as extrajudicial admissions on the part of the Millikens that the land they were claiming was in fact seated land in 1838. It may be that the requests for instructions and assignments of error show more or less of an inconsistency between the positions taken by the defendants in that cáse and those taken by the defendant in this. If there is anything in them which can properly be construed as an admission by the Millikens, either express or implied, of the fact here asserted by the plaintiffs — that the land was seated in 1838 — they were certainly admissible in evidence. Touching this matter, it is quite enough for us to say that in our opinion this test was met. True, it may be, and doubtless is, that these requests and assignments were drawn by counsel; but in such case the law makes no distinction. “The concessions of attorneys of record bind their clients in all matters relating to the trial and progress of the cause:” Truby v. Seybert, 12 Pa. 101. “ That the pleadings in prior causes must be treated as the parties’ admissions, usable as evidence in later cases, must be conceded:” Wigmore on Evidence, sec. 1066. Nor does the fact that the action in which these papers were used was brought by other parties than the plaintiffs here, without privity between them, make them inadmissible. Between the defendants in that suit and the defendant in this, there is unquestionable privity of title, and this is quite sufficient. “In the case before us,” says Kennedy, J., in Gibblehouse v. Stong, 3 Rawle, 437, “the testimony offered and rejected was not of that character, which, in a technical sense, comes under the denomination of hearsay. It comes under what is considered the declarations or admissions of the party to the suit or his privies, that is, those under whom he claims; in respect to which the general rule of law is just as well settled that they shall be received in evidence as that hearsay shall not. All a man’s own declarations, acts and also the declarations and acts of others to which he is a privy, are evidence so far as they offer, any presumption against him, whether such declarations amount to an admission of any fact, or such acts and declarations of others to which he is privy afford any presumption or inference against him. . . . And this rule admitting the confessions and declarations of the party, extends not only to the admission of them against himself, but against all who claim or derive their title from him; in other words, between whom and himself there is a privity. . . . Privities in estate, such as vendor and vendee, assignor and assignee, stand upon the same footing in this respect to each other that privities in blood do. I know of no distinction.” Cowan & Hill, in Notes to Phillips on Evidence, No. 481, p..644, state the rule as follows: “The owner’s estate or interest in the same property afterward coming to another by descent, devise or right of representation, sale or assignment, in a word, by any kind of transfer, whether it be by act of the law or an act of the parties, whether the subject of the transfer be real or personal estate, corporeal or incorporeal, choses in possession, choses in action, the successor is considered a claimant under the former owner; but whatever he may have said affecting his own rights, before parting with his interest, is evidence equally admissible against his successor claiming from him, either immediate or remotely.' And in this instance it makes no difference whether the declarant be alive or dead; for though he be a competent witness, and present in court, his admissions are receivable. This doctrine proceeds upon the idea that the present claimant stands in the place of the person from whom his title is derived; has taken it cum onere; and as the predecessor may have taken a qualified right, or sold, charged, restricted, or modified an absolute right, and as he might furnish all the necessary evidence to show its state in his own hands, the law will not allow third persons to be deprived of that evidence by any act of transferring the right to another.”

This, then, was the state of the evidence — there was nothing outside the requests for instructions and assignments of error in the case of Benedict v. Milliken, which in the remotest way tended to identify the land in dispute with the land that was carried on the assessment list of 1838 as seated. We have not overlooked the charge of the court in that case, or what was offered as the judge’s notes of the evidence. The former was not admissible to prove what had been testified to on the trial; and the latter were not proven. The objection to each should have been sustained. The plaintiff’s case in rebuttal rested wholly upon the alleged admissions in the requests for instructions and the assignments of error. Whatever these admissions were; however definite and unqualified they may seem, they were open to explanation or correction; in other words, they were controvertible. It was not a question of construction of the legal effect of the writings; but a question of probative effect of the alleged admissions contained in them. Did these admissions identify the land then in dispute with the land on the seated list in 1838? This was a question which the jury alone could determine; and it was equally for the jury to say what weight the admissions were entitled to in this action. “Where a writing is not a dispositive instrument, but is put in evidence merely to show an extrinsic fact, it will be for the jury to say what inference is to be drawn therefrom. When documents are offered in evidence as the foundation of an inference of fact; whether such inference can be drawn from them is a question for the jury:” 11 Ency. of Plead, and Prac., p. 80. In giving binding instructions in favor of the plaintiff, the learned trial judge used this language, to indicate the ground upon which he based his conclusions: “The record of the case of A. W. Benedict v. David and Samuel Milliken, brought to No. 38, January Term, 1845, for the George Hill tract, showing that in that case David and Samuel Milliken, the then owners of the alleged tax title, proved that the taxes for 1838 on the George Hill tract, assessed to Henry Steely on the seated land of Barree township for that year, were paid before the sale to David Milliken in 1840; David Milliken and Samuel Milliken and their successors in title are therefore estopped from alleging the contrary. This we say to you is the law and controls this case, and it was thoroughly established by the testimony that has been adduced.”

As we have already said, the record in the case referred to shows nothing as proved; the verdict having fallen with the reversal of the case, it was inconclusive with respect to everything on which it rested. If in the course of the trial the Millikens asserted, either in'requests for instructions, or in their assignments of error, that the land was seated in 1838, or any fact which would warrant such inference, it was entirely competent to prove the fact as an admission binding on the present defendant. If they introduced the evidence of witnesses to the same end, it was entirely competent to show this fact also, for like reason. But whether they did one or the other, or both, were questions of fact for the jury in the present case to pass upon. The court could assume nothing with respect to them. And even though the admissions were established, still their effect would be for the jury. There being here no estoppel by record, to say that the alleged admissions might have such effect, would be to misapprehend entirely the nature and purpose of estoppel. Admissions work estoppel when they have been made to influence the action of others and have been acted upon. But how does it appear that Benedict in purchasing the tax title to the land in 1842 was influenced in any way by admissions made by the Millikens? Even if such fact were shown, there is no privity between the present plaintiffs and Benedict that would enable them to have any advantage from what Benedict himself might assert in this regard. Any fuller discussion of the several assignments of error is unnecessary. In what we have said, we have indicated certain specific errors to which the assignments have directed our attention; and these assignments are sustained. With the evidence confined within proper limits the case was for the jury.

The judgment is reversed and venire facias de novo awarded.


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    Schock v. The Solar Gas Light Company, Appellant.

      Evidence — Particular fact — Link in the chain — Fraud.
    Evidence may be legally admissible as tending, to prove a particular fact, which yet by itself is utterly insufficient for the purpose. It may be a link in the chain, but it cannot make a chain unless other links are added. This rule applies particularly to cases of fraud.
    Facts or circumstances unconnected with the fraud alleged, and which could operate only by means of raising a prejudice against the individual, ought to be excluded. But fraud in its nature eludes the light and walks in ambushes and deceits. Therefore, a latitude, to the extent of a fair connection with the transactions involved, on the part of the actor or actors who are to be affected, is allowed. Fraud is never to be presumed; it must be proved. But it is often most effectively proved by a chain of connected facts and circumstances.
    In an action of ejectment, where the issue is to determine whether real estate bought from an assignee in bankruptcy was in fact the property of the bankrupt, a verdict in favor of the purchasers will be sustained where a course of dealing is shown between the bankrupt and a corporation in whose name he had placed the title from which the jury could draw the inference that the transaction was intended to defraud the bankrupt’s creditors.
    Argued May 18, 1908.
    Appeal, No. 293, Jan. T., 1907, by defendant, from judgment of C. P. Lancaster Co., Jan. T., 1904, No. 25, on verdict for plaintiffs in case of EL C. Schock et al. v. The Solar Gas Light Company.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in Mount Joy. Before Landis, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiffs. Defendant appealed.

      Errors assigned were various rulings on evidence and in submitting the case to the jury.

      W. U. Hensel and D. McMullen, for appellant.

      Wm. H. Keller, with him John A. Coyle, for appellees.
    October 5, 1908:
   Opinion by

Mr. Justice Stewart,

The question here at issue was whether Samuel Kurtz, as whose property the premises in dispute were sold by his assignee in bankruptcy to the plaintiffs, was at the time of such sale the real owner, notwithstanding the fact that the legal title was in the defendant’s predecessor, the Tanners’ Mutual Fire Insurance Company. The effort on the part of the plaintiffs was to show that in the original acquisition of the several properties, Kurtz was the real purchaser, and that title was taken in the name of the insurance company with the double purpose, first, to secure the company for a loan made by it to Kurtz to enable him to make the purchase, and second, to conceal Kurtz’s ownership from his existing creditors; and to show further that of the money loaned to Kurtz by the company, all had been repaid except the sum of $2,044.61, and that Kurtz’s ownership of the property remained as originally acquired, subject only to the payment of this balance to the company. All the assignments of error, with an exception hereafter to be noted, relate to rulings of the court in admitting certain offers of evidence in support of plaintiff’s contention. These do not require separate consideration, since each offer was to the same end, all were alike in general character, and all were objected to on the same ground — immateriality and irrelevancy. It may be that the evidence proposed in no one of the offers, would be sufficient in itself to warrant a legal inference of fraud. But this is not the test by which relevancy of evidence is to be determined. “Evidence may be legally admissible as tending to prove a particular fact, which yet by itself is utterly insufficient for the purpose. It may be a link in the chain, but it cannot make a chain unless other links are added:” Express Co. v. Wile, 64 Pa. 201. The rule as here stated finds most frequent application in cases where the effort is to establish fraud. This is because fraud always attempts concealment, and is ordinarily discoverable only as all the circumstances attending the transaction disclose it. In such inquiry a wide latitude is allowed. The true limit of such latitude is nowhere better defined than in Kinzer v. Mitchell, 8 Pa. 64, where it is said: “Facts or circumstances unconnected with the fraud alleged, and which could operate only by means of raising a prejudice against the individual, ought to be.excluded. But fraud in its nature eludes the light and walks in ambushes and deceits. It is, therefore, that a latitude, to the extent of a fair connection with the transactions involved, on the part of the actor or actors who are to be affected, is allowed. Fraud is never presumed; it must be proved. But it is often most effectively proved by a chain of connected facts and circumstances.” The connection between the several offers in this case, and the particular transaction involved, is too apparent to call for discussion. Each was an offer to show something in the conduct of the parties to be affected, in the course of their business with relation to the matter in controversy, consistent with the theory advanced by plaintiffs, that the ownership of the property was in Kurtz, and which would necessarily call for explanation before any other theory could prevail. Except as these offers tended to establish the fraud charged, they were absolutely without prejudice to anyone.

The remaining assignments, three in number, are directed to a single point — the sufficiency of the evidence to support the verdict. Collectively considered, the relevancy of the evidence for the plaintiff contained in the several offers becomes all the more apparent. The connection between them is at once observable, and together they exhibit a complete history of the transaction out of which the controversy arises. If the narrative thus exhibited be accepted as true, it is so strongly persuasive of the fact sought to be established — that the insurance company either in acquiring legal title to the premises, or in subsequently asserting such title against the creditors of the real owner, was, in complicity with such owner, attempting a fraud, — that in the absence of countervailing evidence no jury would be justified in reaching a different conclusion. It would be useless in this connection to discuss the entire evidence. A brief reference to some salient feature will suffice. These show a purchase by Kurtz in his own name at a public sale of two of the properties at the price of $2,590. By written article he personally became bound for the unpaid purchase money, and gave as his surety Bechtel who at the time was treasurer of the insurance company. A year and a half later Kurtz caused the deed for the properties to be made directly to the insurance company. Not only do the records of the insurance company show no authorization for the purchase of these properties, but the company’s ledger shows that after the conveyance to the company, in the account with Kurtz, the latter was individually charged with the entire purchase money, and from time to time credited with interest thereon. The.company never was in actual possession of either of the properties. Kurtz managed and controlled them as his own, never accounting to the company for any rents or income. Nowhere in the books or records of the company is there anything which can be construed into a claim of ownership by the company. The purchase of the other property — the Mt. Joy gas plant— was made ostensibly by Bechtel, and the deed therefor was to him in his individual capacity. Here again the books of the company show no authorization of the purchase; nor for that matter do they show anything that reflects light upon the acquisition of the properties, whether by payment of purchase money or anything else. It is from Bechtel’s testimony alone that the fact is derived that $733 of the purchase money in this case was paid out of funds of the insurance company. His check for this amount, or the record of it, was produced on the trial; but for this sum a charge is made against Kurtz on the company’s ledger, together with interest from the date of Bechtel’s check. Immediately upon the conveyance of the property to Bechtel the latter gave to Kurtz a power of attorney to manage the property “as fully, largely and amply as he could do if personally present.” Kurtz did so manage it, but made no return of income to either Bechtel or the insurance company. In 1895, Bechtel retiring from the treasuryship, conveyed the property to the insurance company. If the plaintiff’s case presented nothing more than the facts we have stated, these alone would be quite sufficient to warrant an inference of fraud, and a submission to the jury would have been unavoidable. There was more, however, and in a large measure; but we are concerned here only with sufficiency of the evidence to carry the case to the jury. Its sufficiency for this purpose abundantly appeared from the evidence we have referred to. The case was very carefully submitted by the learned judge presiding, ,in a charge which brought to the attention of the jury every explanatory circumstance relied upon by the defendant, and every particle of evidence which could avail it in any way. The charge was so entirely fair and impartial, and so free from error, that it stands clear of all complaint here. The. verdict, as we read the evidence, vindicates itself just as certainly. The defendant in the action derived its title to the property in dispute from the Tanners’ Mutual Fire Insurance Company. Since it is not pretended that the former has any equities other than those that could be asserted by the latter, it is unnecessary to distinguish them further in any discussion of the case.

The assignments of error are overruled and the judgment is affirmed.


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    Metzger’s Estate.

      Will — Construction—Latent ambiguity — Evidence dehors the will.

    A latent ambiguity can only be developed by extrinsic and collateral circumstances, and it is always competent to show that such ambiguity exists. But a discrepancy, or an accordance, between the whole or particular parts of the description, may be shown by evidence dehors to create, or to destroy an ambiguity which is said to be latent, because it is concealed by the will, and disclosed but by extrinsic circumstances. When such latent ambiguity has once been made dehors the will, then the way is open for parol testimony to whatever extent may be necessary to remove it.

      Will — Construction—Devise—Description.
    Where a devise contains a plain and certain description of the thing devised, and this is followed by a reference to occupancy as an added description, such reference is to be regarded as a defective description, if it indicates less than what is embraced in the prior plain certain description.
    Where a description is made up of more than one part, and one part is true, but the other false, if the part which is true described the subject with sufficient legal certainty, the untrue part will be rejected.
    Where a testator owns two numbered lots, the dimensions of which were known when testator acquired them, and the testator in devising one of the lots to his sister describes it by number, and further states that the lot is the lot “now occupied by my nephew, and the land attached thereto,” and there is no extrinsic evidence in the case to show that another lot had been carved from the original lot, or that the nephew was in possession of less than the original lot, the devise to the sister will be construed as including the original dimensions of this lot.

      Bes judicata — Title to land — Bents from land.

    A decree of the orphans’ court determining the ownership of a fund made up of rents from land in dispute, is not res judicata as to the title of the land itself.
    Argued May 19, 1908.
    Appeal, No. 160, Jan. T., 1908, by Charles F. Smith, from decree of O. C. Lancaster Co., Sept. T., 1904, No. 64, refusing partition in estate of Charles W. Metzger, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, ,JJ.
    Affirmed.
    Petition for partition.
    Smith, P. J., found the facts to be as follows:
    Charles F. Smith and Levi B. Smith, sons of Louisa Smith, who was of the residuary devisees and who died before Charles W. Metzger, the testator, have petitioned for an inquest in partition of real estate of which he died seized, and which is described in the petition as follows:
    “The real estate devised as aforesaid consists of a lot of land situated on the west side of South Christian street, Lancaster City, County aforesaid, between East Vine and German streets, and contains forty-seven feet along said South Christian street, extending of that width in depth, in a westwardly direction sixty feet, more or less, to certain fence lines, upon which are erected a two-story brick building, used as a bakery, with frame shed attached thereto, bounded on the north by property formerly belonging to the Order of Odd Fellows, on the east by said South Christian street, on the south by property of Charles Buckius, and on the west by other property formerly belonging to the estate of Charles W. Metzger,, deceased.”
    The petitioners claim title under the following paragraph of the decedent’s will:
    “The residue and remainder of my estate, real, personal, and mixed, I give, devise, and bequeath to my brother, Gotlieb F. Metzger, my sister Mary E. Metzger, my sister Caroline Rogers, my sister Louisa Smith, and my niece Clara Rogers in equal shares and parts, if they are living at the time of the death of my said wife, and if any of them are deceased at the timé of the death of my wife, then to the issue and descendants of such as are deceased leaving issue; and in the event of the death of any of them during my lifetime, or the lifetime of my wife, leaving no issue or descendants living at the time of the death of my wife, I direct the share to such one so given and devised shall be divided among the surviving legatees and devisees, and the issue and descendants of such as are deceased leaving issue and descendants living at the time aforesaid, the issue and descendants of any deceased legatee or devisee shall take the share or portion which their parent or ancestor would have taken if living at the time of the death of my wife.”
    To the citation an answer has been filed by Clara Rogers, denying any title in petitioners and averring title in Mary E. Metzger and herself as the sole and specific devisees of this “lot of land" under the following codicil to the will:
    “Codicil to my last will and testament above written and dated April 14, 1897. — I revoke the bequest of one thousand dollars to my sister Mary E. Metzger as therein mentioned, I give, devise, and bequeath to my sister, Mary E. Metzger, and my niece, Clara Rogers, and their heirs in fee the dwelling house and lot of land No. 135 South Queen street and now occupied by my nephew John Metzger, and the land attached thereto, after the death of my wife.”
    The testator devised also as follows:
    “I give, devise, and bequeath my home, being my dwelling house and lot of land attached thereto, No. 133 South Queen street, Lancaster, Pa., to my sister Mary E. Metzger, together with all the contents thereof, during her lifetime, as a home for herself and my niece Clara Rogers, and after the death of my sister Mary, if my niece Clara Rogers survives both my wife and my sister Mary, I give, devise, and bequeath the said premises to her and her heirs absolutely.”
    Nothing else is before us. Not even is the whole will incorporated in either the petition or the answer, nor is it attached to either. Reference is made in the petition to the place of its record, and we understand it is to be considered as of the petition.
    The cardinal streets of the city of Lancaster, and many parallel to them, are nearly aligned with the cardinal points of the compass. The divisions, or blocks, formed by the intersecting streets are practically rectangular and uniform in size. The lots fronting on the streets are distinguished by numbers affixed to the houses erected thereon. These lots originally did,, and generally do, extend to alleys. Their depth is about 245 feet. When not qualified, a reference to one of these lots by number and streets conveys distinctly the information that it is a lot fronting on that street and extending in depth 245 feet to an alley. All of this is notorious in this community. South Queen street is one of the four cardinal streets of the city of Lancaster. In saying that he deyises “No. 133 South Queen street” and “No. 135 South Queen street,” the testator in clear, concise language expresses an intention easily understood. He as certainly says that he gives the lots fronting on South Queen street and extending in depth to Christian alley as if he had described them by metes and bounds. If he had said nothing more, there would have been no chance for a dispute. Having thus tersely expressed his intentions, he then made the very common mistake of attempting to make certainty doubly sure. “ I give devise and bequeath to my sister Mary E. Metzger and my niece Clara Rogers and their heirs in fee the dwelling house and lot of land No. 135 South Queen street,” was sufficient. But he added the words, “and now occupied by my nephew John Metzger, and the land attached thereto.” Two descriptions of the same property were unnecessary. Either would have answered. Eliminate the first — the “No. 135 South Queen street” — and we have a devise to his sister, Mary E. Metzger, and his niece, Clara Rogers, of “the dwelling house and lot of land .... now occupied by my nephew John Metzger, and the land attached thereto.” From this it necessarily follows that the testator intended to give to his sister and niece more than the lot occupied by John Metzger. He adds the land attached to this lot. It is a legitimate inference that John Metzger did not occupy the whole of “No. 135 South Queen street,” and the conclusion is irresistible' that the testator devised to Mary E. Metzger and Clara Rogers no less than “No. 135 South Queen street.” If it had been his intention to give them only “the dwelling house and lot ... . now occupied by my nephew John Metzger,” what was his purpose in. adding “ and the land attached thereto ?” It was to give the land attached to the John Metzger lot with the John Metzger lot. This line of reasoning will also apply to the devise of No. 133 South Queen street.

      The petitioners asked to have partitioned “sixty feet more or less” of the rear ends of No. 133 South Queen street and No. 135 South Queen street. This is admitted and such is the property described in the petition. As this “lot of land” has been devised to Mary E. Metzger and Clara Rogers, it is no part of the residue of the testator’s estate, and, therefore, the petitioners have no standing and their prayer must be denied. There is nothing in the will to show that the testator did not intend to specifically devise “No. 133 South Queen street” and “No. 135 South Queen street,” and there is nothing in it to raise a doubt as to his intention. With the petition and answer, we have only the will before us.
    The court below dismissed the petition..

      Error assigned was decree dismissing the petition.

      B. F. Davis, for appellants,
    cited: Bruner v. Finley, 217 Pa. 127; Smith v. Metzger, 32 Pa. Superior Ct. 596; Myers v. Myers, 16 Pa. Superior Ct. 511.

      John E. Snyder, for appellee.
    October 5, 1908:
   Opinion by

Mr. Justice Stewart,

The question here was whether a piece of ground with respect to which partition was asked in the orphans’ court, had passed to the petitioners — here the appellants — as residuary devisees under the will of Charles W. Metzger, deceased; or, whether it is included within the testamentary description of two adjoining lots which by the same will were specifically devised to the appellee and another. If the disputed ground is embraced within the specific devise, then, the petitioners being without interest, were without standing, and the proceedings in partition were properly dismissed. Since it was a question of identifying the thing, specifically devised; the case was one which properly called for parol evidence to enlighten the court with respect to matters of which, when made known to it, it would take judicial cognizance so far as not to require special proof that the testator did, in point of fact, dictate his will with reference thereto. But it was submitted on bill and answer, without a particle of evidence extrinsic to the will. This was because of a mistaken view entertained that, since there was no apparent ambiguity in the testamentary description of the ground specifically devised, parol evidence was inadmissible. The learned judge in the opinion filed gives us clearly to understand that this was the view taken by the court; and the fact that there was no evidence offered can be explained only on the ground that counsel were of the same mind. It is made apparent, not by anything in the record, but by the argument made before us, and the opinion filed, that the contentions of the petitioners were, that even conceding for argument’s sake, that the primary meaning of the words employed in the will to describe the ground specifically devised would include the disputed ground, any attempt to fit the description in the will, according to such primary meaning, to the property devised, would necessarily encounter a want of correspondence because of changed physical conditions existing when the will became operative. In other words, their contention was that there was a latent ambiguity in the testamentary description of the ground devised. A latent ambiguity can only be developed by extrinsic and collateral circumstances, and it is always competent to show that such ambiguity exists. '' But a discrepancy, or an accordance, between the whole or particular parts of the description, may be shown by evidence dehors to create, or to destroy an ambiguity which is said to be latent, because it is concealed by the will, and disclosed but by extrinsic circumstances Vernor v. Henry, 3 Watts, 385. “When such latent ambiguity has once been made dehors the will, then the way is open for parol testimony to whatever extent may be necessary to remove it:” Brownfield v. Brownfield, 12 Pa. 136; Brendlinger v. Brendlinger, 26 Pa. 131. While the view taken by the court with respect to this matter was a mistaken one, it is not made a subject of exception, and is not brought to us for review by any assignment. The effect of it was to limit the inquiry to the terms of the will itself; the court having nothing else before it. The learned judge of the orphans’ court somehow, certainly not from the pleadings in the case nor yet from the will, but with the submission of the parties, as the argument shows, derived the fact that the ground in dispute is composed of the rear ends of two adjoining lots fronting on South Queen street in the city of Lancaster, both of which — however the fact may now be — originally extended back about 245 feet to a public alley in the rear. But for this fact, judicially imported into the case, disclosing as it does the location of the disputed ground with reference to that admittedly within the specific devise, no correct understanding of the real dispute would have been possible. For all that appears in the pleadings the one may have been miles away from the other, as was the case in Brendlinger v. Brendlinger, supra, a circumstance which there proved to be a controlling consideration. We take the case as it is thus presented, and it remains only to be determined from the will itself, whether the disputed ground falls within or without the description of the lots devised to the appellee and her cotenant. The lots are separately devised, one in the main body of the will, and one in the codicil. The first devise is as follows: “I give devise and bequeath my home, being my dwelling house, and lot of land attached' thereto, to my sister, Mary E. Metzger, together with all the contents thereof, during her lifetime, as a home for herself and my niece, Clara Rogers, and after the death of my sister, Mary, if my niece, Clara Rogers, survive both my wife and my sister, Mary, I give, devise and bequeath the said premises to her and her heirs absolutely with its entire contents.” The devise in the codicil reads thus: “I give, devise and bequeath to my sister, Mary E. Metzger, and my niece, Clara Rogers, and their heirs in fee the dwelling house and lot of land No. 135 South Queen street, now occupied by my nephew, John Metzger, and the land attached thereto, after the death of my wife.” With respect to the first, it is only necessary to remark that the will itself furnishes not merely an intelligible and sufficient description whereby the thing devised may be identified with reasonable certainty, but the description is so definite that without some extrinsic evidence tó show that lot No. 133, when the will became operative, was not of the dimensions it had been when the testator acquired it — as that another lot had been carved from it and given another and distinct designation by number or otherwise —it is impossible to fit the description in the will upon anything else than the entire lot as it was when testator acquired it. The description of the lot devised in the codicil, while it is by number as in the case of the former lot, does not stop with such designation, but indicates the lot as the lot “now occupied by my nephew, John Metzger, and the land attached thereto.” If by the words “land attached thereto ” is meant land attached to the original lot No. 135, then clearly the reference is to land not involved in the present controversy; if the reference is to a part of lot No. 135, which because of its appropriation and separate uses by the testator in his lifetime, was not when the will became operative in the occupancy of the nephew, then the words employed, if not strictly necessary to an inclusion of such part of the lot in the devise, at least made the inclusion more definite and certain. In the one case they are of no significance in the present contention; in the other, the only meaning to be given then makes against appellant’s contention. Again- — if in point of fact the nephew, John Metzger, was not in the occupancy of the entire lot No. 135, at the date of the will, such fact, if shown, would be entitled to consideration in any effort to fit the testamentary description to the thing devised. But here again we are utterly without evidence as to the situation and surroundings at that time. We are only permitted to know what the will tells us, viz., that lot No. 135, occupied by the nephew, John Metzger, was devised to appellee and her cotenant. It is a well-settled rule that where a devise contains a plain and certain description of the thing devised, and this is followed by a reference to occupancy as an added description, such reference is to be regarded as a defective description if it indicates less than what is embraced in the prior plain certain description. The rule is thus stated by Mr.. Jarman in his treatise on Wills, vol. 2, page 390: “Where the description is made up of more than one part and one part is true, but the other false, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected.” We are permitted to know exactly what lot No. 135 contained when the testator acquired it, and are without anything, either in the will or extrinsic to it, to show that it was ever reduced in size. The description by number is plain and certain as a testamentary description. Confining the inquiry to the will itself, and interpreting it in its own light, it is impossible to reach any other conclusion than that the devise to' the appellee and her cotenant covered lots Nos. 133 and 135 in their original entirety, extending from South Queen street to the public alley in the rear, thus embracing the ground in controversy. This disposes of the only two questions raised by the assignnlents of error.

Upon the argument it was strongly urged upon us that the question with respect to the appellant’s ownership of the ground under the devise, was res adjudicata. Indeed, appellant’s main reliance was on this position; and undue confidence in its sufficiency may in part explain the failure to support their contention by parol evidence which was within their reach. But unfortunately for appellant there is nothing in this record, whether pleadings, evidence, exception or assignments, which brings to our attention any adjudication with respect to the subject of this controversy other than that appealed from. In the argument we are referred to an appeal from’the orphans’ court of Lancaster county adjudicated in the Superior Court, in the case of Smith v. Metzger, 32 Pa. Superior Ct. 596, which it is claimed is conclusive of the controversy. While the question of res adjudicata is not properly before us, and while the case referred to is therefore not for present' consideration, we have so far yielded to the earnestness with which appellant’s contention is pressed as to give the case referred to full consideration. Unappealed from, it is conclusive as to what was involved in the case; but that was nothing more than the particular fund which was before an auditor for distribution. However much the question of title may have been considered by the court in determining the ownership of the fund for distribution — rents from the disputed ground — the decision settled nothing as to the title itself. We express no opinion as to the correctness of the court’s reasoning and conclusions upon the question of title in that case. All we decide is that there is nothing in that case to conclude the appellee in this.

The order of the court is affirmed; the appeal is dismissed at the costs of the appellants.