author: Mr. Justice Potter,

text:
    Sternbergh, Appellant, v. Brock.

      Corporations — Stock—Preferred stock — Dividends.
    1. Where, in a contract for the creation of preferred stock, there is no stipulation to the contrary, the weight of authority clearly favors the right of preferred stockholders to share with the common stockholders in all profits distributed, after the latter have received an amount equal to the stipulated dividend on the preferred stock.
    2. Where a resolution authorizing the issue of preferred stock of a corporation provides that such stock shall be entitled “to receive a cumulative yearly dividend of five per cent in each year before any dividends shall be set apart or paid on the common stock,” such stock after it has received its preference in dividends and after the common stock has received an equal amount as dividend, is entitled to participate with the common stock in the distribution of the remaining profits, if any.
    3. In such a case the fact that for a series of years the preferred stockholders were paid without objection on their part only five per cent per annum, and the entire balance of profits was paid to the common stockholders, is not to be considered in determining the rights of the parties, if it appears that while the dividend paid to the common stock was much more than five per cent on the amount paid in, it was much less than five per cent on the par value of the stock.
    4. Cotemporary construction of a contract by acts of the parties is entitled to very great weight, but it ought to appear with reasonable certainty that they were acts of both parties, done with knowledge, and in view of a purpose at least consistent with that to which they are now sought to be applied.
    5. If a contract is ambiguous in meaning, the practical construction put upon it by the parties thereto is of great weight, even though the contract is in writing, and ordinarily is controlling. The practical interpretation of the parties is to be regarded, however, only when the contract is ambiguous. If clear and free from ambiguity, the intention shown upon its face, if written, must be followed, though contrary to the practical interpretation of the parties, and even if such practical construction has been acquiesced in for a long period of time.
    Argued March 26, 1909.
    Appeal, No. 11, Jan. T., 1909, by-plaintiffs, from decree of C. P. No. 4, Phila. Co., March T., 1907, No. 1,624, dismissing bill in equity in case of J. H. Sternbergh et al. v. Arthur Brock et al. directors, and H. M. Richards, treasurer of the American Iron & Steel Manufacturing Company and the said American Iron & Steel Manufacturing Company.
    Before Mitchell, C. J., Fell, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Audenried, J.
    The facts are set forth in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Cyrus G. Derr and D. T. Watson, for appellants.
    The terms and conditions of issuance of the $3,000,000 of preferred stock of the American Iron & Steel Manufacturing Company must, under the pertinent circumstances appearing in the cause, be construed to entitle the holders of such preferred stock to receive cumulative yearly dividends of five per centum, payable quarterly, before any dividend shall be set apart or paid on the common stock and as not giving the holders of the said preferred stock any right to participate in the profits of the said company beyond the said dividend of five per centum per annum: R. R. Co. v. Jackson, 77 Pa. 321; Fidelity Trust Co. v. Lehigh Valley R. R. Co., 215 Pa. 610; Bridgewater Navigation Co., L. R. 39 Ch. Div. 1; Chicago Ry. Co. v. Northern Pacific Ry. Co., 101 Fed. Repr. 792; Heller v. Nat. Marine Bank, 89 Md. 602 (43 Atl. Repr. 800); Burt v. Rattle, 31 Ohio, 116.
    Practically it is true that the investing public assume and understand that preferred stock is never entitled to more than its specified and fixed dividends, even though the certificate is silent as to further dividends in case a higher dividend is paid on the common stock: Hare v. Horton, 27 Eng. Com. Law Rep. 160; Scott v. B. & O. R. R. Co., 49 Atl. Repr. 327.
    The construction placed upon the terms and conditions of issuance of the said $3,000,000 of preferred stock by the board of directors of the said company and acquiesced in by all the shareholders, preferred and common, namely, that the holders of the said preferred stock should not participate in any division of profits by the corporation beyond the dividend of five per centum per annum expressly stipulated for, must, under the pertinent circumstances appearing in this case, be adopted, adhered to, and enforced by the court: Ringrose v. Ringrose, 170 Pa. 593; Berridge v. Glassey, 112 Pa. 442; People’s Nat. Gas Co. v. Wire Co., 155 Pa. 22 (25 Atl. Repr. 749); Nickerson v. Atchison, etc., Co., 17 Fed. Repr. 409; Lyon v. Motley, 30 N. Y. Sup. 218.
    June 22, 1909:
    Persons who have become members of the American Iron & Steel Manufacturing Company by stock- purchase since the adoption by the board of directors and the stockholders of the construction that the rights of the preferred stockholders with respect to dividends are limited to a dividend of five per centum per annum are bound by such construction, and no rights possessed by them require or warrant any deviation therefrom: Erny v. Schmidt Co., 197 Pa. 475; Church v. R. R. Co., 78 Fed. Repr. 526.

      John G. Johnson, for appellees.
    The rule as laid dowgenerally, as well as in Pennsylvania, in the case of preferred ’ shares of stock, is, that in the absence of an expressed intention to the contrary, the holder, after the payment to the common shares of a percentage eqúal to that paid to him, is entitled to participate pro rata in further dividends: Fidelity Trust Co. v. Lehigh Valley R. R. Co., 215 Pa. 610.
    The corporation would not be bound by any understanding antecedent to that adopted at or after its formation: Bailey v. R. R., 84 U. S. 96; Bridgewater Nav. Co., L. R. 39 Ch. Div. 1.
   Opinion bt

Mr. Justice Potter,

On July 7, 1899, four manufacturing concerns, the Pennsylvania Bolt and Nut Company, J. H. Sternbergh & Son, the Lebanon Iron Company and the East Lebanon Iron Company, entered into an agreement, by which they were to transfer to a proposed corporation, the whole of their respective “plants, franchises, good-will, business, patents, trademarks and property of every sort and kind.” The agreement further provided that they should receive for the property so transferred full paid and nonassessable preferred stock of the proposed corporation, of the par value of $50.00 per share, of which $3,000,000 worth were to be issued and divided among them in designated proportions. The agreement also provided: “The said preferred stock shall have an accumulative preference of Five Percent' (5%) dividend annually, payable quarterly on the first days of January, April, July and October, and the first preference as to the distribution of the assets of the Company; and further none of the property or franchises of the proposed company can be mortgaged without the consent of at least a majority of the preferred stock.” Common stock to the extent of $17,000,000 was also to be issued, divided into 340,000 shares, with a par value of $50.00 each upon which $5.00 per share was to be paid in cash.

In pursuance of this agreement- the American Iron & Steel Company was incorporated on August 21,1899, under the laws of Pennsylvania, for the manufacture of iron and steel products. The capital named in the articles of incorporation was twenty shares, with a par value of $1,000, but this was increased, by action of the stockholders on August 23,1899, to $20,000,000, divided in $3,000,000 of preferred and $17,000,000 of common stock, all of a par value of $50.00 a share.

By resolution adopted at. the stockholders’ meeting of August 23, 1899, it was provided “that the preferred. stock whose issue was thereby authorized to the amount of $3,000,000 should be entitled, (a) 'to receive a cumulative yearly dividend of five per cent, payable quarterly on the first days of January, April, July and October, in each year before any dividends shall be set apart or paid on the common stock; (b) to be paid in full both principal and accrued dividends in the event of liquidation or dissolution of the company before any amount shall be paid to the holders of the common or general stock; (c) to require the consent in writing of a majority of the holders thereof to the creation of any mortgage.’ ”

The stock was issued as provided for in the agreement and the resolution of the stockholders. On February 27, 1905, the common stock was reduced, after an assessment of $2.50 a share had been levied, to 51,000 shares, of the par value of $2,550,000, making the total capital stock $5,550,000.

From the organization of the company until the year 1907, the holders of preferred stock were paid the stipulated five per cent annual dividend, and no more, while all profits above the amount so paid were distributed by dividends to the common stockholders. In March, 1907, a quarterly dividend of two per cent was declared by the directors upon all the stock, both preferred and common, which was at the rate of eight per cent per annum.

J. H. Sternbergh, who was a holder of the common stock, filed this bill in equity against the directors and treasurer of the company and the corporation itself, alleging that the preferred stockholders were not entitled to receive more than five per cent per annum on the par value of their stock, and praying the court to enjoin the payment to them of the dividend declared in excess of one-quarter of that amount.

Answers and replication were filed, and the case was tried before Audenried, J., who found that the plaintiffs were not entitled to an injunction and recommended that the bill be dismissed. Exceptions to the findings of the trial judge were dismissed by the court in banc, and a decree made dismissing the bill, with costs. Plaintiffs have appealed, and have assigned for error the dismissal of their exceptions, and the decree dismissing the bill.

Three questions are raised by the arguments of counsel on this appeal.

1. Whether preferred stock issued by a company incorporated under the corporation act of 1874, is limited as to dividends, to the amount of its preference; or whether, after payment of an equal amount as dividend on the common stock it is entitled to participate in the distribution of the remaining profits, if any.

2. - Whether under the agreement and resolution in the present case, the preferred stockholders can receive dividends of more than five per cent per annum on the par value of their stock.

3. Whether the alleged fact that for a long series of years the preferred stockholders were paid without objection on their part, only five per cent per annum and the entire balance of profits was paid to the common stockholders, is to be considered in determining the present rights of the parties.

The authority to issue the preferred stock in the present case is derived from the Act of April 29,1874, sec. 16, P. L. 43, which provides: “Every corporation created under the provisions of this act, or accepting its provisions, may, with the consent of a majority in interest of its stockholders, obtained at a meeting to be called for that purpose, of which' public notice shall be given during thirty days in a newspaper of the proper county, issue preferred stock of the cbrporation, the holders of which preferred stock shall be entitled to receive such dividends thereon as the board of directors of the corporation may prescribe, payable only out of the net earnings of the corporation.”

The learned judge of the trial court was of opinion that the present case is ruled by Fidelity Trust Co. v. Lehigh Valley R. R. Co., 215 Pa. 610. It was there said (p. 617): “When each class of stock had been paid ten per cent, they were equal, and equally entitled to partake of whatever remained in the fund applicable for dividend purposes. The preferred stockholders were not creditors.”

In West Chester, etc., R. R. Co. v. Jackson, 77 Pa. 321, a loose expression was used, when it was said that “preferred stock is only a form of mortgage.” Whatever the extent of the preference in that case may have been, speaking generally, stock, whether it be common or preferred, does not represent indebtedness; its possession means ownership of the company.

The authority under which the preferred stock was issued in Fidelity Trust Co. v. Lehigh Valley R. R. Co., 215 Pa. 610, was contained in the Act of March 4, 1850, P. L. 129, which provided: “And'the said additional stock so issued shall be entitled to a preference over all the other stock of the said company in every future dividend of profits which may be declared by the said company, until the holders of such additional stock shall have been paid from the funds applicable to the payment of such dividend, ten per cent per annum on the amount of capital stock of the company represented by said shares of additional stock so held by them respectively; and the holders of the other stock of the company shall not be entitled to participate in any future dividend of the profits of the company until the holders of said additional stock shall have been paid from the funds applicable to such dividend, ten per cent per annum on the amount of the capital stock of the company represented by said additional shares so held by them respectively.” In reply to the satae contention which is made here, the court below very appropriately, and as we think convincingly, said: “In attempting to distinguish between the contract in the present case and that considered by the Supreme Court in Fidelity Trust Co. v. Lehigh Valley R. R. Co., much reliance is placed by counsel for the plaintiffs on three peculiarities of expression in the act of 1850. These are, first, the use of words alluding to the preferred stock thereby authorized as representing a definite part of the company’s aggregate capital stock; second, the limitation of the preference by the words, ‘until the holders of such additional stock shall have been paid ten per cent per annum;’ and third, the employment of the word ‘participate’-as applied to the right of the holders of the common stock to receive dividends from the company’s profits. These points of difference are but -(¡rifling and constitute no sound distinction between the essential terms of the two contracts under comparison. With respect to the use of the word ‘participate,’ it is enough to say that it probably refers here to the sharing of the profits of the corporation among the holders of the common shares themselves rather than to the distribution between the two classes of stockholders. The words which serve to limit the preference of the additional shares, viz., ‘until the holders of such additional stock shall have been paid ten per cent per annum,’ imply nothing different from what is implied by the words ‘ before any dividend shall be paid or set apart on the common stock’ contained in clause (a) of the resolutions of the American Iron and Steel Manufacturing Company, above quoted. The words ‘amount of capital stock represented by said additional stock,’ in the act of 1850, are devoid of the significance ascribed to them. They are merely a clumsy paraphrase of the expression ‘par value’ which the draftsman of the act probably regarded as too colloquial a term for use by the legislature.’ ”

Where there is no stipulation in the contract to the contrary, the weight of authority clearly favors the right of preferred stockholders, to share with the common stockholders, in all profits distributed, after the latter have received an amount equal to the stipulated dividend on the preferred stock.

“In the absence of special provisions, the holders of preferred stock in a corporation are in precisely the same position, both with respect to' the corporation itself and with respect to creditors of the corporation, as the holders of common stock, except only that they are entitled to receive dividends on their shares, to the extent guaranteed or agreed upon, before any dividends can be paid to the holders of common stock: ” 2 Clark & Marshall on Priv. Corp. (1901) sec. 417c. “A share of stock is a share of stock, whether preferred or common:” 1 Cook on Corps, sec. 269, note. See also, 1 Elliott on Railroads (2d. ed.), sec. 84; 2 Beach on Priv. Corp. sec. 501.

We do not find anything in the agreement or resolution in the present case which limited the preferred stockholders to a dividend of five per cent per annum upon their stock.

With regard to the contention that the court should follow the construction placed upon the contract, which it is alleged the parties followed for a series of years, that is, by paying to the preferred stockholders only the stipulated five per cent dividends, and awarding the remaining profits to the common stockholders, the trial judge does not find that any such construction was established, and he further finds that, except in the years 1905 and 1906, the dividends paid on the common stock were less than five per cent of its par value. In discussing this feature he says: “Has there grown up any usage in the company at variance with the rights of the preferred stockholders as ascertainable from a fair reading of the resolutions under which the preferred shares were issued? The plaintiffs assert that there is such a custom, and in support of their statement, point to the dividends paid on the common stock during the first sixteen months of the company’s existence, which aggregated $1.25 per share on the common stock, a return of more than eighteen per cent per annum on the sum paid in on this stock, while during the same period the holders of preferred stock accepted without murmur dividends at the yearly-rate of five per cent on their shares. The effect of this evidence is entirely overcome, however, by the consideration that the dividends paid on the common stock yielded less- than two per cent on its par value. It is to be assumed that before the holders of preferred stock could claim more than the five per cent dividends that they received, the holders of the common stock were entitled to receive a dividend of the same percentage on the par value of their shares. To refuse them this right would be unjust. True it is that they had paid in only ten per cent of the amount of their subscriptions, and that the company had the use of but a comparatively small part of what they were obligated to pay in if called on, but the com-' pany enjoyed the credit of having such a resource as the unpaid subscriptions to its stock, and the common stockholders had at risk in the venture not only what money they had paid in, but all for which they were still liable. It was proper, therefore, that the par value of their stock should be taken as the basis of their share in the company’s profits, and until they received more than five per cent per annum on that basis (which they never did prior to 1905), the holders of preferred stock had no reason to complain.” This conclusion commends itself to us.

With reference to this subject, the present chief justice in Kane v. Ins. Co., 199 Pa. 205, said (p. 207): “Cotemporary construction of a contract by acts of the parties is entitled to very great weight, but it ought to appear with reasonable certainty that they were acts of both parties, done with knowledge, and in view of a purpose at least consistent with that to which they are now sought to be applied.” In our view, these requirements are not met in the present case. Further, it should be noted, that the rule invoked applies only to contracts that are ambiguous, and where the intention is doubtful.

In 2 Page on Contracts (1905), sec. 1126, the rule is thus stated: “If a contract is ambiguous in meaning, the practical construction put upon it by the parties thereto is of great weight, even though the contract is in writing, and ordinarily is controlling. . . . The practical interpretation of the parties is to be regarded, however, only when the contract is ambiguous. If clear and free from ambiguity, the intention shown upon its face, if written, must be followed, though contrary to the practical interpretation of the parties, and even if such practical construction has been acquiesced in for a long period of time.”

We see no need in the present case, for looking beyond the terms of the contract. We think it was properly construed by the court below. The assignments of error are overruled, and the decree is affirmed. .


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Gamble v. Central Pennsylvania Lumber Company, Appellant.

      Tax sale — Sale by county commissioners — Assessments—Land law.

    1. A sale of unseated lands by the county commissioners for nonpayment of taxes is valid, although the township assessor has made no return of assessment of such lands. The county commissioners as a board of revision are themselves competent to assess the tax.
    2. Where a person in good faith purchases a tract of land from county commissioners which the commissioners had bought in at a tax sale, and there is nothing of record to show that the commissioners had ever done anything to impair or abandon their title, the former owners of the land cannot allege as against such purchaser that the commissioners had continued to collect taxes from the land after the sale, thereby abandoning their title.
    3. Where an assessor returns an assessment on a tract of unseated land in his own township, the county commissioners have a right to levy a tax on such land and collect it, although the return may have improperly located the land. The commissioners axe not called upon to satisfy themselves as to the accuracy of the return.
    4. Where taxes are paid on a portion of an unseated tract of land, and the remainder is sold for nonpayment of taxes, and the county commissioners buy it in at the sale, and thereafter sell it to another person, the purchaser of the tax title, if there has been no previous apportionment of the land, has the right to locate his purchase upon such part of the whole tract as he may choose.

      Argued March 17, 1908.
    Appeal, No. 345, Jan. T., 1907, by defendants, from judgment of C. P. Lycoming Co., June T., 1905, No. 450, on verdict for plaintiffs in case of Jefferson A. Gamble and W. H. Green v. Central Pennsylvania Lumber Company and the Elk Tanning Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for land in Lewis township. Before Hart, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Defendants presented the following points.
    1. That under the pleadings and evidence the verdict must be for the defendants. Answer: This point is refused, and I will leave this whole matter as a question of fact to be determined by the jury. [11]
    2. It being the undisputed evidence in this case that the James Strawbridge warrant, No. 5,666, 1,100 acres, was assessed in Lewis and Cogan House townships for the years 1896 to 1902, both inclusive, with taxes, by the county commissioners of Lycoming county, and that said taxes were collected by the county of Lycoming from the Elk Tanning Company for the said years, that such assessment, collection and receipt of taxes by the county of Lycoming amounted to an abandonment by the county of its title, acquired by the treasurer’s sale of 1894, and the purchaser from the county in 1902 acquired no title to the premises in dispute. Answer: This point is refused. [10]
    3. That no such evidence has been offered by the plaintiffs in explanation of the mutilation appearing in the alleged tax assessment to warrant the submission of the same to the jury as evidence of an assessment; neither is there sufficient evidence of the identity of the tract which was the subject of the alleged tax sale, to show whether it was warrant No. 5,665 or warrant No. 5,666. Answer: This point is refused. [4]
    4. That there is no sufficient evidence of a legal assessment of warrant No. 5,666 in the name of James Strawbridge for the year 1893, and the alleged tax sale is, therefore, void. Answer: This point is refused. [5]
    5. That there is no sufficient evidence of a valid assessment corresponding to and sustaining the alleged tax sale of-400 acres as part of the James Strawbridge warrant No. 5,666, and, therefore, the sale is void. Answer: This is refused. [6]
    6. That there is no proof of identity of the land, covered by the alleged sale with the 400 acres claimed by the plaintiffs in this action. Answer: Refused. [7]
    7. That under the testimony in the case the plaintiffs were not entitled to arbitrarily select the location which they have fixed by their map offered in evidence. Answer: Refused. [9]
    10. That the legal effect of the evidence in relation to the payment of the taxes for the year 1893 upon tract No. 5,666 was to discharge said tract from further liability and left no power in the treasurer to make sale of the tract or any portion thereof. Answer: Refused. [8]
    Verdict and judgment for plaintiffs. Defendants appealed.

      Errors assigned were (4-11) above instructions, quoting them.

      Thomas H. Murray and Seth T. McCormick, with them C. H. McCauley, for appellants.
    There was no asssessment of warrant No. 5,666 for the year 1893: Laid v. Heister, 24 Pa. 452; Bratton v. Mitchell, 7 W. & L. 259; Wells v. Smyth, 55 Pa. 159; Lyman v. Philadelphia, 56 Pa. 488; McReynolds v. Longenberger, 57 Pa. 13; Greenough v. Coal Co., 74 Pa., 486.
    There was no proof of the identity of the tract 5,666 as covered by the alleged assessment: Robinson v. Myers, 67 Pa. 9; Burgwin v. Bishop, 91 Pa. 336; Churchman v. Smith, 6 Wharton, 145; Jordan v. Stewart, 23 Pa. 244; Fisk v. Corey, 141 Pa. 334; McClement’s App., 2 Pa. Superior Ct. 443; Hess v. Herrington, 73 Pa. 438; Marsh v. Nelson, 101 Pa. 51; Reading v. Finney, 73 Pa. 467; Breisch v. Coxe, 81 Pa. 336; Brown v. Hays, 66 Pa. 229.
    The county commissioners abandoned their title under which plaintiffs claim, and the plaintiffs are now estopped from asserting it: Hunter v. Albright, 5 W. & S. 423; Diamond Coal Co. v. Fisher, 19 Pa. 267; Cobb v. Barclay, 9 Pa. Superior Ct. 573; Schreiber v. Moynihan, 197 Pa. 578; Feltz v. Coal Co., 203 Pa. 166; Murphy v. Packer, 152 U. S. 389.
    Plaintiffs’ location of 424 acres in question is unwarranted and without authority in law: Brotherton v. Livingston, 3 W. & S. 334; McCord v. Bergautz, 7 Watts, 487; Hess v. Harrington, 73 Pa. 438; Stewart v. Shoenfelt, 13 S. & R. 360; Diamond Coal Co. v. Fisher, 19 Pa. 267; Breisch v. Coxe, 81 Pa. 336.
    Even if under the circumstances there was a right of election, this right had been exhausted by a prior and different location.

      N. M. Edwards and C. La Rue Munson, of Candor & Munson, with them H. W. Whitehead and A. G. Miller, for appellees.
    There was a legal assessment of warrant No. 5666 upon which the county treasurer’s sale is based in this case: Hess v. Herrington, 73 Pa. 438.
    The county commissioners were the officers competent to assess the tax. That no valuation was made or returned, was a mere irregularity: Hubley v. Keyser, 2 P. & W. 496; Reynolds v. Longenberger 75 Pa. 13.
    The identity of the tract as well as apparent mutilation of the record were all questions for the jury and all of which have been decided by the jury in favor of the plaintiffs in this case: Schreiber v. Moynihan, 197 Pa. 578; Marsh v. Nelson, 12 W. N. C. 214; Woodside v. Wilson, 32 Pa. 52; Diamond Coal Co. v. Fisher, 19 Pa. 273; McReynolds v. Longenberger, 75 Pa. 13.
    The county commissioners did not abandon their title under which plaintiffs claim: Philadelphia v. Raup, 177 Pa. 396.
    It is true the county collected taxes on 400 acres in Cogan House township from the Elk Tanning Company, defendant in this casé, but it is not proven anywhere in this case that the county knew or was led in any way to believe that this 400 acres in Cogan House township was the same that it had purchased at treasurer’s sale in 1894, located in Lewis township. It has been repeatedly decided in this state that-the payment of taxes will not confer title where none exist: Philadelphia v. Raup, 177 Pa. 396; Goodman v. Sanger, 85 Pa. 337; Naglee v. Albright, 4 Wharton, 291; Sorber v. Willing, 10 Watts, 141; Sailor v. Hertzog, 10 Pa. 296; Mayor of Philadelphia v. Riddle, 25 Pa. 259.
    June 22, 1909:
    Under the evidence in this case the plaintiffs have the right of unrestricted choice of locality: Coxe v. Blanden, 1 Watts, 533; Erwin v. Helm, 13 S. & R. 151; McCord v. Bergautz, 7 Watts, 487.
   Opinion by

Mr. Justice Brown,

The title upon which the appellees recovered in the court below was acquired by them from a vendee of the county commissioners of Lycoming county, who had purchased the land in controversy on December 1, 1894, at a county treasurer’s sale for unpaid taxes levied against, it for the year 1893. This land formed part of a tract of 1,100 acres, for which a patent— No. 5,666 — was issued by the commonwealth to James Straw-bridge on March 8, 1795. The appellants claim title under a tax sale held in the year 1821 for unpaid taxes for the years 1820 and 1821. The case as presented is that of one tax sale title arrayed against another.

The first position of the appellants is that there was no assessment by the township assessor or the county commissioners for the year 1893 of the land embraced in the Straw-bridge warrant, No. 5,666, and that even if taxes were levied, legally or illegally, upon it, they were duly paid and discharged by the owner. It appears from the testimony that for the year 1893 the assessor of the township of Lewis, in which warrant No. 5,666 is located, failed to make a return of assessments of unseated lands in that township, but the commissioners of the county made assessments upon such lands for that year. That the assessments made by the commissioners were legal and formed the bases for sales for unpaid taxes is definitely settled. Reference need be made only to Hess v. Herrington, 73 Pa. 438, where, in passing upon this very question, we said: “There was evidence by a record from the office of the county commissioners that the taxes in question were assessed by them. The twenty-first section of the Act of April 12, 1842, P. L. 262, enacts that 'all records of the county commissioners charging lands as unseated with arrears of taxes, shall be evidence of an assessment. ’ By the fourth section of the Act of March 13, 1815, 6 Sm. L. 301, it is declared that ‘no alleged irregularity in the assessment, or in the process, or otherwise, shall be construed or taken to affect the title of the purchaser; but the same shall be declared to be good and legal.’ The act of 1842 makes the record of the county commissioners evidence of an assessment in fact, and the act of 1815, to support the title of the purchaser, cures all irregularities in it. The county commissioners were the officers competent to assess the tax. That no valuation was made or returned, was a mere irregularity. The county commissioners are the board of revision, with power to revise, correct and equalize the valuation of all property taxable by law: Act of July 27, 1842, P. L. 445; Act of April 29, 1844, P. L. 501. It would be no violent presumption if it were necessary to resort to it, that the valuation upon which the assessment was made, was settled by them in their capacity as a board of revision. But it is not necessary. In Hubley v. Keyser, 2 P. & W. 502, Mr. Justice Huston, speaking of the act of 1815, says: ‘The object was to make the sale and deed confer a title without proof of any one prerequisite, except that the land was unseated, and that a tax was charged by the commissioners, regularly or irregularly; that this tax was unpaid, and the land sold and not redeemed within two years.’ In that case, the objection to the sale was, that there was proof that the assessors had not valued or returned the land as unseated for assessment. It was argued there, as here, that the valuation by the commissioners was unauthorized, and the assessment a nullity; but it was held otherwise by the court. Indeed, in citing, this case afterwards, in Fager v. Campbell, 5 Watts, 288, Chief Justice Gibson said: ‘The tax-book was an official, document, and according to Hubley v. Keyser, it was both competent and sufficient to show that the land had been assessed.’ Both these cases were prior to the act of 1842. It was, indeed, expressly decided in Devinney v. Reynolds, 1 W. & S. 328, that a tract of unseated land may be sold by the treasurer for the non-payment of taxes upon an assessment made by the commissioners, without the intervention of the assessors. ‘The assessors,’ said Mr. Justice Rogers, ‘value the lands, but the commissioners make the assessment; from which it follows that you cannot avoid a sale for taxes, merely because you are unable to prove that the assessors had performed this ministerial duty.’ ”

There was some question, growing out of apparent alteration of figures in the assessment book, as to the identity of the tract that had been assessed by the county commissioners, whether it was 5,665 or 5,666, but the jury were definitely instructed that unless they were satisfied by evidence, “clear, precise and indubitable that tract 5,666 had been assessed for the taxes for the year 1893,” the plaintiffs could not recover. This is all the defendants could have asked for on the question of the identity of the tract. Whether the taxes that were assessed for 1893 against this tract had been paid by the appellants or Proctor, their grantor, was a pure question of fact, depending upon testimony to which we need not here refer. It is sufficient to say that, though the jury could have found from that of B. S. Bentley that the county of Lycoming had no claim for taxes upon the land that was sold, they were not required to so find in view of the testimony of Updegraff, the deputy county treasurer.

The next contention of the appellants is that the county commissioners had abandoned their title under which the appellees claim, and the latter are now estopped from asserting it. This is based 'üpon the alleged fact that after the county commissioners had purchased the 400 acres of land in Lewis township, they continued to assess and collect taxes upon the same from the appellants. If the evidence disclosed this, the second contention of the appellants might require consideration from us, but there is no evidence showing that the county commissioners ever collected taxes from anyone on the 400 acres of land situated in Lewis township after they purchased the same at the treasurer’s sale in December, 1894. The taxes assessed and collected by them from the tract in Lewis township after their purchase in 1894 were upon 700 acres. It is true taxes were assessed and collected from 400 acres in Cogan House township, but there is nothing to show that the county commissioners, in assessing and collecting taxes from this tract, which had been returned by the Cogan House township assessor, knew that the same was a part of the 1,100 acres in the Strawbridge warrant, situated in Lewis township. As long as the assessor of Cogan House township returned 400 acres of land as taxable in that township the county commissioners simply discharged their duty in regularly assessing it and collecting the taxes on it. They were not called upon to satisfy themselves as to the accuracy of this return: Brown v. Hays, 66 Pa. 229. The Elk Tanning Company at all times knew that it was paying taxes upon but 700 acres of land in Lewis township, and that, without any objection from it, the county was collecting from a regular return taxes on 400 acres owned by it in Cogan House township. Under these facts there is no basis for the claim of the appellants that the county of Lycoming or its successors are es-topped from asserting title, for it did nothing after December, 1894, as to the 400 acres of land situated in Lewis township. But, aside from all this, Good was a bona fide purchaser, and when he purchased from the county commissioners the records showed a valid sale of the 400 acres to them and nothing subsequently done by them in impairment or abandonment of their title, and his vendees, the appellees, have succeeded to all his rights, which, being legal, cannot be disturbed because' of hardship that the appellants may suffer. The law in this proceeding can have no concern with their equities. Titles by tax sales would often become as unstable as water, if equities should be permitted to prevail against them after having been legally acquired.

Taxes were paid upon but 700 acres of the 1,100 acres which the county commissioners assessed for the year 1893. The land was all unseated and it could not, and did not, appear what part of the 1,100 acres was included in the 700 acres; and so of the 400 acres. The right of the vendee was to sell any 400 acres of the tract of 1,100, and the right of the purchaser was to locate the 400 acres wherever he pleased. In Everhart v. Dolph, 133 Pa. 628, the owner of a tract of 276 acres of unseated land, returned and taxed as such as a whole, paid the taxes upon 210 acres thereof only, the same not having been designated as any specific part of the 276 acres. He allowed the remaining sixty-six acres to be sold for the balance of the taxes assessed, and it was held that the purchaser of the tax title had the right to locate his purchase upon such part of the whole tract as he might choose. The right to so locate was the right acquired by the county commissioners when they became purchasers of the tract in controversy. They acquired everything that an individual purchaser could have acquired, and whatever they acquired passed to their vendee and through him to the appellees. Sales for unpaid taxes are purely statutory, and no act of assembly makes any distinction in the rights of purchasers, whether they be individuals, corporations or the representatives of the county compelling the sale. ■

Whether the right of election had been exhausted by a prior location, different from the one claimed by the appellees, was a question for the jury and was properly submitted to them as such. All of the assignments of error are overruled and the judgment is affirmed.


text:
    Wood, Appellant v. Kerkeslager.

      Bankruptcy — Preferences—Assignment—Equitable assignment — Letter of attorney.

    1. Where a person more than four months before he is declared an involuntary bankrupt executes a letter of attorney by which he authorizes an attorney at law to collect the whole of an award due him by a city in condemnation proceedings, and in the letter assigns certain portions of the fund to certain creditors, and directs the attorney after he has collected the award to pay the creditors the amounts named, such a paper is irrevocable, and constitutes an equitable assignment to the creditors named therein, and having been made four months before the bankruptcy proceedings is valid as against the trustee in bankruptcy. If in such a case the fund is paid by the agreement of all parties in interest, including the attorney, without prejudice to their rights, to a trustee to distribute, such trustee will stand in exactly the same position as the attorney.
    2. Where a letter of attorney forms a part of a contract, and is a security for money, or for the performance of any act which is deemed valuable, it is generally made irrevocable in terms, or if not so, is deemed irrevocable in law. Although a letter of attorney depends, from its nature, on the will of the person making it, and may, in general, be recalled at his will, yet, if he binds himself for a consideration, in terms, or by the nature of his contract, not to change his will, the law will not permit him to change it.
    Argued April 19, 1909.
    Appeal, No. 110, Jan. T., 1909, by plaintiffs, from order of C. P. No. 5, Phila. Co., June T., 1908, No. 2,606, discharging rule for judgment for want of a sufficient affidavit of defense in case of William Wood and John P. Wood copartners, trading as William Wood & Company, v. Irvin Kerkeslager et al., Trustees of the Bankrupt Estate of Alexander Crow, Jr., and the Land Title & Trust Company.
    Before Fell, Brown, Mestrbzat, Potter and Stewart, JJ.
    Reversed.
    Assumpsit for money had and received.
    Rule for judgment for want of a sufficient affidavit of defense. Before Ralston, J.

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

      John G. Johnson, with him W. B. Linn, for appellants.
    Crow alone could not revoke Patton’s trusteeship: Blackstone v. Buttermore, 53 Pa. 266.
    Crow’s trustees in bankruptcy stand in his shoes and have-no other rights than Crow had: Hewit v. Berlin Machine Works, 194 U. S. 296; Thompson v. Fairbanks, 196 U. S. 516; York Mfg. Co. v. Cassell, 201 U. S. 344; Thomas v. Taggart, 209 U. S. 385.
    The Land Title & Trust Company’s position was stakeholder for claimants: Philadelphia v. Lockardt, 73 Pa. 211; Watson v. McManus, 221 Pa. 41.
    Though a municipality may, under some circumstances, pay and disregard a partial assignment (Appeals of Philadelphia, 86 Pa. 179, 182; Geist’s Appeal, 104 Pa. 351), this does not discharge the assignor of his liability under his contract. It is simply a rule of convenience to prevent a municipality from being subjected to the annoyance of paying numerous persons or being subject to many suits, where there was originally but one obligee, and that on a contract, something very different from an eminent domain obligation.
    But, at bar, the city is not subjected to the annoyance of several suits, as the money was paid to a stakeholder by agreement of all the parties in interest, releasing the city in full. Therefore, even if the assignments were partial instead of entire, the reason for the. application of the rule against partial assignments drawn against municipalities having disappeared, the rule disappears and equity should prevail: Soley’s Est., 15 W. N. C. 351; Jarecki Mfg. Co. v. Hart, 5 Pa. Superior Ct. 422; U. S. v. Vaughan, 3 Binney, 394; Noble v. Thompson Oil Co., 79 Pa. 354.

      W. W. Porter, of Porter, Foulkrod & McCullagh, and James F. Campbell, with them Joseph L. Greenwald, for appellees.
    The attempted assignments are for part- of a fund due by the city to the assignor, and having never been accepted by the city, are invalid, and create no lien to the prejudice of other creditors: Philadelphia v. Lockhardt, 73 Pa. 211; Watson v. McManus, 221 Pa. 41; Philadelphia’s App., 86 Pa. 179; Geist’s App., 104 Pa. 351; Schaffer v. Cadwallader, 36 Pa. 126; Bunyea v. Robinson, 8 Del. Co. 275; Penn Iron Co. v. Lancaster, 14 Lanc. L. R. 177; McManus v. School Dist., 4 Kulp, 439.
    The assignments to the plaintiffs were not good in equity even as against an ordinary debtor: Christman v. Russell, 81 U. S. 69; Trist v. Child, 88 U. S. 447; Manderville v. Welch, 18 U. S. 277; Jermyn v. Moffit, 75 Pa. 399; Geist’s App., 104 Pa. 351.
    The'power of attorney by Crow to Patton was revocable: Watson v. Bagaley, 12 Pa. 164; Blackstone v. Buttermore, 53 Pa. 266; Yerkes’s App., 99 Pa. 401; Walker v. Walker, 125 U. S. 339; Johnson v. Ravitch, 99 N. Y. Supp. 1059; Silverman v. Penna. R. R. Co., 141 Fed. Repr. 382; Mueller v. Nugent, 184 U. S. 1; Robinson v. Elliott, 89 U. S, 513; Bank v. Hunt, 78 U. S. 391; Norton v. Switzer, 93 U. S. 355; In re Baird, 126 Fed. Repr. 845.
    June 22, 1909:
    No claim can be made by the appellants through Patton as trustee for them, since Patton is not a party to the record, and has never made any demand.
    Crow’s claim against the city, being for injuries resulting to his property by the right of eminent domain, was a personal right, not capable of assignment to the plaintiffs: Com. v. Shepard, 3 P. & W. 509; Sibbald’s Est., 18 Pa. 249; Schuylkill, etc., Nav. Co. v. Decker, 2 Watts, 343; Patten v. Wilson, 34 Pa. 299; Marsh v. R. R. Co., 204 Pa. 229; Spofford v. Kirk, 97 U. S. 484.
   Opinion by

Mr. Justice Brown,

Alexander Crow, Jr., was the owner of certain real estate in the city of Philadelphia, and, in October, 1906, was notified that the city would, three months thereafter, take his property for a parkway. In January, 1907, the city took possession of the land and some time prior to March 5,1907, condemnation proceedings were instituted for the assessment of the damages to be paid to Crow. He appointed J. Lee Patton, Esq., a member of the Philadelphia bar, as his attorney to present and collect his claim for compensation. On March 5, 1907, Crow, Wood & Company, the appellants, and Patton entered into an agreement, of which the following is a copy:

“Articles of agreement made this 5th day of March, 1907, by and between Alexander Crow, Jr., of the city of Philadelphia, hereinafter called the first party, and William Wood and John P. Wood, copartners, trading as William Wood & Company, in the city of Philadelphia, hereinafter called the second party, witnesseth:
“For valuable consideration and for the sum of $1.00 paid to the first party by the second party, the receipt whereof is hereby acknowledged, the first party does hereby assign, transfer and set over unto the second party the sum of $17,914.59, with interest from date hereof, out of the amount of compensation presently to be determined and payable by the city of Philadelphia to the first party in the matter of the opening of the Parkway between Logan Square and Spring Garden street, a right of action for said compensation being now vested in the first party, covering the taking of premises used as a spinning mill at 21st and Shamokin streets, approximately 180 feet on the north line, 126 feet on the east line and 180 feet on the west line. The first party further agrees that his claim for said compensation against the city shall be presented by J. Lee Patton, attorney at law, and that said J. Lee Patton shall receive and collect said compensation from the city, and out of the sum so collected, after first deducting the necessary expenses of collecting the same, the usual attorney’s fee, and such charges as the city solicitor shall first require to be paid, and the claim of the Third National Bank for forty thousand dollars ($40,000) and interest, shall then before making any other payments of any kind or character, first pay therefrom the aforesaid amount, $17,914.59, with interest from date hereof, hereby constituting, directing and empowering said J. Lee Patton, the agent of the first party, to make said payment to the second party, hereby likewise constituting, directing and empowering the second party to receive from said J. Lee Patton said sum in payment of the obligation created by these presents, the receipt of said second party to be a sufficient voucher in the hands of said J. Lee Patton of said payment in accordance herewith. The appointment of said J. Lee Patton to receive said compensation from the city and the direction to apply the specified portion thereof immediately after the payment of expenses and counsel fees and the claim of the Third National Bank, to the payment of the sum herein assigned is irrevocable, and the first party further expressly warrants that he has done nothing, directly or indirectly, prior to the signing of this agreement, which can or may in any manner affect the carrying out of the mutually expressed intention hereof.
“It is understood and agreed that if between the date hereof and the date of the receipt of the second party from J. Lee Patton of any moneys hereunder, the first party shall deliver to the second party yarns, the purchase price, according to a statement to be furnished by the second party, of all the yams so delivered shall be deducted at the time of the settlement with J. Lee Patton from the sum of $17,914.59 and interest, and that the balance only shall be paid hereunder and that the price of yarns so delivered shall not otherwise become due and payable.
“In witness whereof we have hereunto set our hands and seals the day and year above written.
“Alexander Crow, Jr. (l. s.)
“William Wood and Company,
“By Jno. P. Wood.
“Witness:
“Humbert B. Powell.
“B. V. Bachtell.
“Philadelphia, March 5, 1907, at the request of Alexander Crow, Jr., I hereby agree to make the payment to William Wood and Company hereinabove specified out of the compensation paid by the City of Philadelphia to me for the account of Alexander Crow, Jr., in the matter of the taking of his premises 21st and Shamokin streets, after first having deducted the necessary expenses and counsel fee and such charges as the City Solicitor shall first require to be paid and the claim of the Third National Bank, Provided, however, that no attachment, or other legal process shall have been served or begun to prevent the payment of the same. It is also understood that any expense to which I may be put in carrying out the above assignment or in connection therewith shall be paid out of said award.
“Alexander Crow, Jr.
“Agreed to:
“J. Lee Patton.”

On July 10, 1907 — more than four months after the execution and delivery to the appellants of the foregoing tripartite contract — involuntary proceedings in bankruptcy were instituted against Crow, and on February 17, 1908, he was adjudged a bankrupt. On August 5, 1907, the board of viewers appointed to assess the damages due to him filed a report, awarding the sum of $310,326.69 as compensation for the taking of his property. Crow and the city both appealed from this award. On June 10, 1908, it was agreed by the parties that the appeals should be withdrawn, the city being willing tó pay the amount of the award, on receipt of releases from all the claimants to the fund. The trustees in bankruptcy applied for payment of award to them, but this was refused, as the city had received notice of the claims of the plaintiffs and the Third National Bank. At a meeting of the creditors of Crow’s bankrupt estate held June 20, 1908, at the office of Richard S. Hunter, the referee in bankruptcy, it was agreed by the trustees of the bankrupt estate, the plaintiffs and the Third National Bank (the referee in bankruptcy approving the agreement) that the amount of the award should be paid by the city of Philadelphia to the Land Title & Trust Company, in full discharge of all claims against the city arising out of the taking of the land, and that the Land Title & Trust Company should insure a title in fee simple to the city. It was further agreed that out of the funds paid to the said company the sum of $70,000 should be set apart to meet the amounts claimed by the plaintiffs and the Third National Bank, and that a suit should be instituted against it for the recovery of the said amounts. An express stipulation of the agreement was that payment to the said. Land Title & Trust Company should be without prejudice to the rights of the trustees in bankruptcy, the Third National Bank or the appellants under the assignment to them. Patton declined to join in this agreement without the consent of the appellants and the Third National Bank, and, such assent having been given, he formally concurred in the agreement. On June 26, 1908, the city paid the amount of the award, less $12,589.31 previously paid on account, by delivering to the attorneys for the trustees of Crow’s estate and to' Patton, his attorney, a warrant drawn to the order of the Land Title & Trust Company for the balance due. Upon receiving this warrant the attorneys for the trustees and Patton formally directed the clerk of quarter sessions to enter satisfaction upon the award. In this suit, brought by the plaintiffs to recover the amount due them, held by the Land Title & Trust Company, the rule for judgment for an insufficient affidavit of defense, filed by the trustees in bankruptcy, was discharged, and from the refusal of judgment there has come this appeal.

If, by the agreement of March 5, 1907, Crow had merely appointed Patton his agent to collect the compensation to be paid to him by the city, the agency would admittedly have been revocable; but it was much more than such an agency. The power of attorney was not only for the purpose of collecting money for Crow, but for others to whom he had assigned portions of the fund. The power did not concern merely the interest of Crow, but was executed by him as a means of effectuating a purpose necessary to protect the rights of the appellants. It was, therefore, not revocable either by him or by his trustees in bankruptcy: Blackstone v. Buttermore, 53 Pa. 266. “Where a letter of attorney forms a part of a contract, and is a security for money, or for the performance of any act which is deemed valuable, it is generally made irrevocable in terms, or if not so, is deemed irrevocable in. law.. Although a letter of attorney depends, from its nature, on the will of the person making it, and may, in general, be recalled at his will; yet, if he binds himself for a consideration, in terms, or by the nature of his contract, not to change his will, the law will not permit him to change it:” Hunt v. Rousmanier, 8 Wheat. 174.

The agreement of March 5, 1907, is a contract between the parties to it, the terms of which are revocable only by their consent.' By it Crow authorized Patton to receive for him from the city, not a portion of the compensation to be paid to him, but all of it, to be distributed by Patton in accordance with the terms of the agreement. This was an. equitable assignment to Patton, as trustee, of the whole fund, and, if so, he became a trustee for the creditors named in the agreement. As we view the case, the question of a partial assignment of the fúnd is not involved. The city was bound.to pay, it all to Patton, and his receipt for the same would have been a complete discharge. His duty, after getting the money, was distribution as trustee for the cestuis que trustent, among whom are the appellants.

As the payment of the award to the Land Title & Trust Company was made under an express stipulation that it should be without prejudice to the rights of the appellants under Crow’s assignment to them, their rights are unaffected by such payment, and the Land Title & Trust Company holds the fund in trust for Patton as the trustee for those who would be entitled to receive it from him if it had been paid to him. Whatever judgment could have been recovered against him by the appellants, if the money had been paid to him and he had refused to pay them, they are now entitled to against the custodian of the fund, holding it for exactly the same purposes as those for which he would have held it, if paid to him. It is well contended by counsel for appellants that, if the trustees in bankruptcy could not collect from Patton any greater sum than that which belongs to Crow under the resulting trust and which he could have collected, they certainly cannot collect the same from the Land Title & Trust Company.

The right of the appellants to a portion of the whole award equitably assigned to Patton having been a fixed, vested one more than four months prior to the institution of the bankruptcy proceedings to adjudge Crow a bankrupt, his trustees cannot interfere with that right. On March 5, 1907, the appellants acquired a valid lien upon the fund to be paid by the city for taking Crow’s property, and their subsequent enforcement of that lien is not an illegal preference under the act of congress: Owen et al. v. Brown, 120 Fed. Repr. 812. There is a clear distinction between the bald creation of a lien within four months and the enforcement of one previously acquired: Thompson v. Fairbanks, 196 U. S. 516.

The order of the court refusing judgment is reversed, and the record is remitted with direction that judgment be entered against the Land Title & Trust Company for want of a sufficient affidavit of defense, unless other legal or equitable cause be shown why such judgment should not be entered.


text:
    Third National Bank of Philadelphia, Appellant, v. Kerkeslager.
    June 22, 1909:
    Argued April 19, 1909.
    Appeal, No. 111, Jan. T., 1909, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1908, No. 2,605, discharging rule, for judgment for want of a sufficient affidavit of defense in case of Third National Bank of Philadelphia v. Irvin C. Kerkeslager et al., Trustees of the Bankrupt Estate of Alexander Crow, Jr., and The Land Title & Trust Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
   Opinion by

Mr. Justice Brown,

The same question is involved on this appeal as was disposed of in No. 110 to the present term, ante, p. 296, and, for the reasons therein given, the order of the court refusing judgment is reversed, and the record is remitted with direction that judgment be entered against The Land Title & Trust Company for want of a sufficient affidavit of defense, unless other legal or equitable cause be shown why such judgment should not be entered.


author: Per Curiam,

text:
    Wicker v. Durr, Appellant.

      Husband and wife — Deed by wife to husband — Nonjoinder of husband.

    1. A married woman cannot make a valid conveyance of her separate real estate by deed to her husband as grantee, which she alone signs, seals and acknowledges but which he accepts and places upon record.
    2. Neither the Act of April 11,1848, P. L. 536, nor the Act of June 8, 1893, P. L. 344, changed the provisions of the Act of February 24,1770, 1 Sm. L. 307, requiring a husband to join in the conveyance of a wife’s real estate.
    Argued April 21, 1909.
    Appeal, No. 81, Jan. T., 1909, by defendants, from judgment of C. P. Blair Co., Oct. T., 1908, No. 79, on case stated in suit of John H. Wicker et al. v. Henry Gustave Durr and George Chadams, terre-tenant.
    June 22, 1909:
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Case stated to determine title to real estate. Before Shull, P. J., specially presiding.
    The record disclosed that the land in question was conveyed to Anna M. Davis; subsequently she married Ferdinand Durr and thereafter she executed, sealed and delivered a deed to him for the property which he placed of record. Ferdinand Durr died and devised the property to Henry Gustave Durr; Anna M. Durr died intestate leaving the plaintiffs as her heirs at law.

      Error assigned was in entering judgment for plaintiffs on case stated.

      R. A. Henderson, for appellants.

      F. J. F. Confer and A. W. Porter, for appellees.
   Per Curiam,

The only question raised by the appeal is whether a married woman can make a valid conveyance of her separate real estate by deed to her husband as grantee, which she alone signs, seals and acknowledges but which he accepts and places upon record. It has been uniformly held that a married woman has no power to convey her real estate except in the precise mode prescribed by the statute conferring the power. Her power to convey is conferred by the statute, and the mode pointed out by it is imperative: Trimmer v. Heagy, 16 Pa. 484. Neither the Act of April 11, 1848, P. L. 536, nor the Act of June 8, 1893, P. L. 344, changed the provisions of the Act of February 24, 1770, 1 Sm. L. 307, requiring a husband to join in the conveyance of a wife’s real estate. The acts of 1848 and 1893, materially enlarged a married woman’s control of her separate estate, but they left undisturbed the mode of its exercise in the conveyance of her real estate. The latter act expressly preserved it by the provision that “ She may not mortgage or convey her real property unless her husband joins in such mortgage or conveyance:” Bingler v. Bowman, 194 Pa. 210.

The judgment is affirmed.


text:
    Peters v. Bessemer & Lake Erie Railroad Company, Appellant.

      Negligence — Railroads—Yards—Construction of switches — Clearance.
    1. A railroad company cannot be convicted of negligence in the construction of a switch yard merely because at certain points cars could not clear. In all switch yards there must be points where cars will not clear. A switchman, however, who is unfamiliar with a yard in which he is directed to work is entitled to instructions as to the locality of the dangerous points.

      Negligence — Damages—Death of infant.

    2. In an action to recover damages for the negligent killing of a boy under age, the jury should not be permitted to guess at the probable cost of boarding and clothing the deceased during his minority. Some proof of the probable cost'of maintenance during minority is indispensable in such an action, as this item must be deducted from probable earnings to establish the real damages.
    Argued April 26, 1909.
    Appeal, No. 170, Jan. T., 1908, by defendant, from judgment of C. P. Erie Co., Sept. T., 1906, No. 183, on verdict for plaintiff in case of Margaret Peters v. Bessemer & Lake Erie Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s son. Before Walling, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The defendant submitted the following points:
    6. There is no evidence to justify the submission to the jury of the question of the negligence of the defendant as to the construction of the tracks in the yard of the defendant company. Answer: Refused. [1]

      9. Even if the evidence showed negligence on the part of the defendant company in regard to one or more of the allegations made in the plaintiff’s statement, the evidence shows that neither of said alleged acts of negligence on the part of the defendant company was the proximate cause of the accident, and that the proximate cause of the accident was the negligence of some one or more of the fellow servants of the plaintiff’s son, for which the defendant company was not liable. Answer: Refused. We refer the question of proximate cause to the jury. [2]
    11. The burden was upon the plaintiff to show what the net earnings of her son would probably be during minority. She has not shown what the cost or probable cost of his board, clothing and maintenance during minority would be, and there is no evidence upon which the jury can base a calculation of his net earnings. They cannot be permitted to guess at the probable cost of his board, clothing and maintenance, and the verdict, therefore, should be for the defendant. Answer: Refused. The jury cannot guess at anything. You will have to find that from the evidence. The evidence shows that the young man was earning about $70.00 a month, but I say to you, as I have already explained, that his mother could not recover his full earnings but only so much as would have gone to her benefit. You will have to find that from the evidence and the circumstances in the case, considering the young man’s age and the circumstances as developed by the testimony. [3]
    12. Under all the evidence, the verdict of the jury should be for the defendant. Answer: Refused [4]
    Verdict and judgment for plaintiff for $2,300. Defendant appealed.

      Errors assigned among others were (1-4) above instructions, quoting them.

      Frank Gunnison, with him John S. Rilling, Henry E. Fish, E. S. Templeton, S. J. Orr and T. C. Whiteman, for appellant.
    The jury should not have been permitted to pass upon the question as to whether the defendant company was negligent in adopting the design adopted by it in the construction of its yard; and to say that such adoption was the proximate cause of the accident.
    June 22, 1909:
    The court also erred in submitting to the jury the question as to whether the failure of the defendant to give adequate instructions as to the danger of the employment undertaken by the decedent was not the proximate cause of the accident.
    The court erred in permitting the jury to assess the damages on insufficient evidence: Central Coal & Coke Co. v. Hartman, 111 Fed. Repr. 96.

      U. P. Rossiter, for appellee.
    The defendant’s negligence was for the jury: Vorhees v. Ry. Co., 193 Pa. 115; Ross v. Walker, 139 Pa. 42; Mulvaney v. R. R. Co., 1 Misc. 425 (21 N. Y. Supp. 427); Penna. Co. v. McCormack, 131 Ind. 250 (30 N. E. Repr. 27); Illinois, etc., R. R. Co. v. Whalen, 19 Ill. App. Ct. 116; Flanders v. Ry. Co., 51 Minn. 193; Smith v. R. R. Co., 46 N. J. L. 7; Harris v. Ry. Co., 4 McCrary (U. S.), 454; Kearns v. Ry. Co., 66 Iowa, 599; Balt. & Ohio S. W. R. R. Co. v. Roberts, 161 Ind. 1 (67 N. E. Repr. 530); Chicago, etc., R. R. Co. v. Howell, 208 Ill. 155 (70 N. E. Repr. 15); Wright v. R. R. Co., 160 Ind. 583 (66 N. E. Repr. 454); McCabe v. Ry. Co., 76 Pac. Repr. 701; Morrisette v. R. R. Co., 76 Vt. 267 (56 Atl. Repr. 1102); Illinois Terminal R. R. Co. v. Thompson, 210 Ill. 226; Gorham v. Sioux City Stock Yards Co., 118 Iowa, 749 (92 N. W. Repr. 698); Galveston, etc., Ry. Co. v. Brown, 77 S. W. Repr. 832; Kilpatrick v. Ry. Co., 52 Atl. Repr. 531; Eagle, etc., Mills v. Herron, 46 S. E. Repr. 405; Doyle v. Pittsburg Waste Co., 204 Pa. 618; Welsh v. Butz, 202 Pa. 59.
   Opinion by

Mr. Justice Brown,

Herbert Peters, the son of the appellee, was in the employ of the appellant as. a brakeman, and shortly after he was seventeen years old was killed, while riding on the tender of a locomotive in a switch yard, by being struck or "side-swiped” by a car on an adjoining switch. In the yard in which he was killed a number of switches or tracks branched south from a “ladder” track on the north for a distance of upwards of 1,500 feet. A locomotive had entered from the “ladder” track upon the track or switch known as No. 24, for the purpose of taking ten cars from it to another track in another part of the yard. When the locomotive entered upon track No. 24 the deceased was riding in the gangway between the engine and the tender. After the cars were coupled to the locomotive it backed towards the north, and Peters, who.had changed his position and was standing on the end of the tender, came into collision with a car standing on track No. 25 and was instantly killed. There was a recovery by the plaintiff, under instructions that she was entitled to recover if the jury should find that the proximate cause of her son’s death was either the bad construction of the system of tracks in the switch yard or want of proper instructions to him and he had not been guilty of contributory negligence.

The only testimony upon the question of the defendant’s negligence in the construction of its switches was that of Jesse Supplee, a civil engineer, but, when properly scanned, it fails to show faulty construction. The only difference between the construction of the appellant’s switch yard and others that the witness had seen was in the distance from the frog to the point of clearance. Here the distance was 100 or 110 feet; in some others that the witness had seen it was about 60 feet. He admitted that switches are frequently constructed with the point of clearance as distant as in the defendant’s yard, when it is desirable or necessary to save ground. It did not require the testimony of this witness to show that either system is safe after the clearance point is reached. Any system is dangerous from the frog to that point, and none can be said to be faulty in construction merely because of the distance of the point of clearance. ■ The witness further stated that switches are deceptive as to the point of clearance, but that after dark there is no difference between them in this respect. Peters was killed after it was fully dark and the yard was not lighted up. The sixth point submitted by the défendant should have been affirmed. As authority for the court’s refusal to affirm it appellee’s counsel seem to rely upon Yorhees v. Lake Shore & Michigan Southern Ry. Co., 193 Pa. 115, but that case is clearly distinguishable from the present one so far as any faulty construction of tracks is concerned. In switch yards there must be points where cars will not clear. Vorhees was not injured in such yard. He was hurt while riding on one of two parallel sidings, between which, at the point where he came in contact with the car on the adjoining siding, the distance between the tracks ought to have been, according to the regulations, from seven feet to seven feet two inches, but were so constructed as to leave only from five feet to five feet six inches between them. He had never been on that siding before and had no knowledge that the space between it and the next one was so narrow.

Though the defendant’s eleventh point could not have been affirmed as a whole, complaint is justly made that the jury were permitted to guess at the probable cost of boarding and clothing the deceased during his minority. The instructions were that they would have to find this item from the evidence, and could not guess at it, but there was not a particle of evidence as to what the probable cost of the son’s maintenance would be. The jury, therefore, simply did guess. This must not be permitted on the new trial, for some proof of the probable cost of maintenance during minority is indispensable in an action like this for damages by the parent.

On question of the failure of the appellant to properly instruct the deceased as to the danger incident to moving cars in the switch yard, the case was for the jury, for the evidence failed to show that he was familiar with the construction at the north end of the switches, where’he was killed, or that he knew at what point there would be a clearance between the tracks. But for the two'errors pointed out, this judgment would be affirmed. In all other respects the case was submitted to the jury under correct instructions. ■ ;

Judgment reversed and venire facias de novo awarded.


author: Me. Justice Fell,

text:
    Cierlinski, Appellant, v. Rys.

      Orphans’ court — Jurisdiction—Collateral attack on decree — Widow’s exemption.

    1. The orphans’ court is a court of record and its decrees within its jurisdiction stand on the same footing as those of any court of record and cannot be examined collaterally nor set aside except in due course of law by appeal.
    2. A decree of the orphans’ court awarding a widow real estate as a part of her exemption is conclusive, if unappealed from, and cannot be attacked collaterally in an action of ejectment; and this is the case although the petition for the exemption shows on its face that the widow had remarried before the petition was filed.
    Argued April 26, 1909.
    Appeal, No. 228, Jan. T., 1908, by plaintiff, from judgment of C. P. Erie Co., Sept. T., 1907, No. 39, for defendant non obstante veredicto in case of Peter Cierlinski, Guardian of John Cierlinski, v. Paul Rys, W. H. Landers, Michael Olszewski and Frank Pietraszewicz.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Ejectment for lot of land in the city of Erie. Before Walling, P. J.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff.- The court subsequently entered judgment for defendants non obstante veredicto.

      Error assigned was in entering judgment for defendants non obstante veredicto.

      John S. Rilling, with him Frank Gunnison and Henry E. Fish, for appellant.
    If the record shows a want of jurisdiction in the orphans’ court for want of proper parties, or over the subject-matter, the decree of confirmation is absolutely void, and may be attacked in this action: Lockhart v. John, 7 Pa. 137; Kern’s App., 120 Pa. 523; Fowler v. Eddy, 110 Pa. 117; McKee v. McKee, 14 Pa. 231; Wall v. Wall, 123 Pa. 545; McPherson v. Cunliff, 11 S. & R. 422; Black on Judgments, sec. 282; Torrance v. Torrance, 53 Pa. 505; Grier’s App., 101 Pa. 412; Bennett v. Hayden, 145 Pa. 586; Smith v. Wildman, 178 Pa. 245.
    June 22, 1909:

      John B. Brooks, with him Francis T. Nagorski and Paul A. Benson, for appellees.
    The decree of the orphans’ court was conclusive: Com. v. Powell, 51 Pa. 438; Hilt v. Walton, 12 Phila. 362; Somer’s Est., 14 Phila. 261; Greenwalt’s Est., 16 Pa. Superior Ct. 263; Welty v. Ruffner, 9 Pa. 224; Morris v. Galbraith, 8 Watts, 166; Richter v. Fitszimmons, 4 Watts, 251; Merklein v. Trapnell, 34 Pa. 42.
   Opinion by

Me. Justice Fell,

Francis Cierlinski died in 1890 leaving to survive him a widow, who married five months after his death, and a son seventeen months old, whose guardian is the plaintiff in this ejectment, which was commenced in 1907. A year and a half after the death of Cierlinski the woman who had been his wife filed a petition in the orphans’ court in which she alleged that she was his widow, but set out the fact of her second marriage and that his estate consisted of a lot in Erie city and a few articles of household furniture, the whole being of value less than $300, and asked that the whole real and personal estate be set aside to her without administration upon his estate as provided by the Act of June 4, 1883, P. L. 74. The appraisers appointed by the court certified and returned that the value of the entire estate was $217.50 and that they had set aside the whole thereof to the petitioner. The appraisement and award were confirmed and the proceeding in the orphans’ court was ended in 1892. The mortgage on the lot was afterwards paid and the lot improved, and it passed by purchase to the defendants. At the trial there was no dispute as to the facts, and the court directed a verdict for the plaintiff because the widow’s right to have the property awarded to her had been lost by her remarriage: Kern’s App., 120 Pa. 523; and that, as the fact of the remarriage was set out in the petition, the decree of the orphans’ court was void for want of jurisdiction. Judgment was afterwards entered for the-defendants non obstante veredicto, on the ground that the orphans’ court had exclusive jurisdiction to decide in the first instance whether the petitioner’s claim to the land should be allowed, notwithstanding her remarriage, and its decision could be reviewed only by an appellate court and, even if erroneous, could not be attacked in a collateral proceeding and was binding on the common pleas.

, This conclusion was clearly right. The orphans’ court is a court of record and its decrees within its jurisdiction stand on the same footing as those of any court of record and cannot be examined collaterally nor set aside except in due course of law by appeal: Torrance v. Torrance, 53 Pa. 505. No want of jurisdiction appeared on the face of the record. The petitioner averred that she was the widow of the decedent and as such was entitled to the property claimed. This averment made it the duty of the orphans’ court to take cognizance of and to decide her cause, and it was the only court that could hear and determine it. Although she set out a fact that raised a doubt as to the validity of her claim, she was nevertheless entitled to be heard. A finding as to that fact by a court having jurisdiction of the subject-matter, however erroneous, was conclusive in a collateral proceeding.

The judgment is affirmed.


author: Mr. Justice Fell,

text:
    Graham’s Estate.

      Will — Probate—Devisavit vel non — Testamentary capacity — Refusal of issue.

    The orphans’ court commits no error in refusing to award an issue devisavit vel non on the ground of testamentary incapacity, where the proponent calls the witnesses to the will and the two physicians who attended the testator at the time, who all testify that the deceased was fully capable of transacting business, while the contestant relies on witnesses who had not seen him within six months of his death, some of whom testify that at times he had been nervous, forgetful and incapable of attending, to business, while others who were physicians, testify that they had seen the testator at times from six months to four years before his death, that he was suffering from paresis and that the disease would incapacitate him mentally some weeks before it caused his death.
    June 22, 1909:
    Argued April 26, 1909.
    Appeal, No. 354, Jan. T., 1909, by Louise G. Graham, by her guardian ad litem, Mary Curry Wintersmith, from decree of O. C. Cumberland Co., refusing an issue devisavit vel non in Estate of Frank G. Graham, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Appeal from register of wills. Before Sadler, P. J.

      Error assigned was decree dismissing the petition.

      Guy H. Davies and Caleb S. Brinton, with them Fillmore Maust, for appellant,
    cited: Reichenbach v. Ruddach, 127 Pa. 564; Miller’s Est., 179 Pa. 645; Newhard v. Yundt, 132. Pa. 324; Rees v. Stillé, 38 Pa. 138; Adams’s Est., 220 Pa. 531.

      S. B. Sadler, with him F. E. Beltzhoover and D. M. Graham, for appellees.
   Opinion by

Mr. Justice Fell,

This appeal is from an order refusing an issue devisavit vel non asked for on the grounds of undue influence and of want of testamentary capacity. Of undue influence there was no evidence whatever, and the testimony would not have justified the court in sustaining a verdict setting aside the will because of want of testamentary capacity. The testator had been engaged in business in different places for a number of years. In the latter part of 1904 he withdrew from business because of impaired health and in February, 1905, he went to the family home in Carlisle, Pa., where he lived with his sisters until his death, which occurred on May 5, following. His will was executed on April 7. He had no property except policies of insurance on his life for $10,000. He had been divorced from his wife several years before, and she had remarried and was living in Kentucky. She had property of her own and their only child, the contestant, lived with her. Á few days before the testator executed his will, he called on the agent of the company in which he was insured for the purpose of having the policies transferred to his sisters, one of whom was an invalid and in a measure dependent upon him for financial aid. He was advised to keep the policies in his own right and to provide for his sisters by will. Acting on this advice he requested his brother to draw the will. He told him that his only property was the insurance and that he. wished it to go to his sisters and, in answer to the suggestion that he could secure this end by naming them as beneficiaries, he replied that his health had improved and that he desired to retain control of the policies. He left his property in trust, the income to be paid to his sisters for life with power in the last survivor to dispose of the principal by will. In default of an appointment by will, it was to go to his brother’s children. After the execution of the will he took it to a trust company and deposited it, and he told a number of friends that he had made a will.

There was nothing in the will itself that was unnatural or that suggests that it was the product of an abnormal mind. Men whom the testator met frequently on the streets, who called upon him and upon whom he called, the witnesses to the will and the two physicians who were attending him at the time testified that he was fully capable of transacting business. No doubt upon the subject appears to have occurred to any of them. His regular physician testified that, while he was physically weak, He had perfect use of his reasoning faculties. So far as his mentality was concerned, he was perfectly normal. Was not anything to attract my attention any other way.” Of this testimony there was no contradiction. His physicians differed as to the cause of his death; one thought it due to paresis and one to a brain tumor.

The contestant called no witness who had seen the testator within six months of his death. Some of her witnesses, who had been associated with him before his withdrawal from business, testified that at times he had been nervous, forgetful and incapable of attending properly to business. Her main reliance was upon the testimony of physicians who has seen the testator at times varying from six months to four years before his death, who testified that he was suffering from paresis, a disease that is progressive and incurable but with periods of recurrence, and that in their opinion the disease would incapacitate him for the intelligent consideration of any subject some weeks before it caused his death.

The question before the orphans’ court was whether upon all the testimony produced by the parties there was such a dispute as should be submitted to a jury. The test is whether upon all the testimony a verdict against the validity of the will should be allowed to stand: Knauss’ App., 114 Pa. 10. To that test in this case there can be only one answer, unless we give to the testimony of experts as to what in their opinion would happen in the future greater weight than to the clear, positive and uncontradicted testimony of disinterested witnesses as to what did actually happen.

The order of the court refusing an issue is affirmed.


text:
    Commonwealth ex rel. v. The Lumber City Water Company, Appellant.

      Water companies — Sale of property and franchises — Dissolution— Act of April 17, 1876, sec. 5, P. L. 30.
    Where a water company sells and by proper deed conveys all of its franchises and property to another company, the selling company ceases to exist by the very terms of the Act of April 17, 1876, sec. 5, P. L. 30.
    Argued May 3, 1909.
    Appeal, No. 163, Jan. T., 1908, by defendant, from order of C. P. Potter Co., Dec. T., 1901, No. 14, dismissing exceptions to report of referee in case of Commonwealth ex rel. v. The Lumber City Water Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Quo warranto to determine corporate existence.
    The opinion of the Supreme Court states the case.
    David Cameron, Esq., referee, filed the following conclusions of law:
    1. The Act of June 14, 1836, P. L. 621, sec. 2, clause 5, gives the court of common pleas of Potter county jurisdiction of this case.
    2. The relinquishment of possession and abandonment of all its water lines, property, franchises, etc., and the discontinuance of furnishing water, as provided for in its charter, from the date of the deed, June 9, 1898, to June 25, 1905, when its vendee was ousted and its charter forfeited, is a nonuser and abandonment for which judgment of ouster should be entered and the charter of the defendant company forfeited.
    3. The act of 1876 is not self-acting, but when quo warranto proceedings are instituted against a water company, incorporated under the act of 1874, and the fact is found that the said water company has disposed of and conveyed all its property, real, personal and mixed, to a like corporation, judgment of ouster must be rendered in such case to meet and carry out the mandates of the legislation.
    4. The act of 1876 applies to the defendant company, and having found the fact to be that it had sold, assigned and conveyed to the Potter County Water Company, a like corporation, organized for the same purpose as the defendant company, its franchises and all its property, real, personal and mixed, before these proceedings were instituted, and having further found that it is now seeking to do business under its charter, judgment of ouster should be rendered against it.
    And now, March 15, 1907, it is adjudged and decreed that the defendant, the Lumber City Water Company, has no right to have and use the rights, powers, liberties and privileges of a water company under the laws of the commonwealth of Pennsylvania, or any of the rights, liberties and franchises conferred by act of assembly, or by the charter issued to said company on October 23, 1890; and that the said defendant, the Lumber City Water Company, be ousted and altogether excluded of and from the said rights, powers, liberties or franchises conferred by said charter and act of assembly, and it is ordered that a perpetual injunction issue restraining the said defendant, its officers, agents, servants and employees from exercising any of the rights, powers and privileges of a water company, or any of the rights, liberties or franchises conferred by act of assembly or the charter above named. And it is further adjudged that the defendant pay all costs.
    June 22, 1909:
    Exceptions to the report of the referee were dismissed by the court.

      Errors assigned were in dismissing the exceptions and in entering the decree recommended by the referee.
    'Walter Lyon, of Lyon & Hunter, with him W. K. Swetland, for appellant.

      W. I. Lewis, with him F. E. Baldwin, Archibald F. Jones and R. R. Lewis, for appellee.
   Per Curiam,

On or about June 9, 1898, the Lumber City Water Company executed and some time thereafter delivered to the Potter County Water Company, a similar corporation, a deed for áll of its franchises and property, real, personal and mixed. That the sale was made to the Potter County Water Company is admitted in the answer, and there is nothing to show that it was not in all respects valid or that any statutory requirement had not been complied with. The following findings of fact are not assigned as error: “On or about the ninth day of June, 1898, the defendant company executed, and some time thereafter, but before the commencement of this action, delivered to the Potter County Water Company, a like corporation, incorporated for the same purpose, a deed conveying to the said Potter County Water Company, its successors and assigns, all of its (the said defendant company’s) water works, pipes, mains, hydrants, and all franchises, contracts, bills, claims and all property, real, personal and mixed. Immediately upon the execution of the said deed, the defendant company relinquished possession of and abandoned all its water lines, reservoirs and franchises, and ceased to operate any water lines and ceased and discontinued the furnishing of water. The Potter County Water Company took immediate possession of and operated the water system of the defendant company (claiming to own the same by virtue of said deed) and continued to hold the same and to have and enjoy all the property, rights, franchises and privileges of the defendant company, and all its property, real, personal and mixed, until the judgment of ouster was entered against it by the court of common pleas of Potter county and an injunction was issued against it by the said court.”

By the sale everything that belonged to the Lumber City Water Company became vested in the Potter County Water Company: Hey v. Springfield Water Co., 207 Pa. 38; and the Act of April 17, 1876, P. L. 30, sec. 5, which authorized the sale, provides that when it was made the selling corporation ceased to exist. The words of the act are, that after such a sale the corporation making it “shall cease to exist.” There -is no room for doubt as to the effect of the sale in this case, for it is plainly stated in the act. After the Lumber City Water Company made the sale it ceased to exist, and it is hypercriticism on the part of those having charge of the corpse of the company to say that its existence is now admitted by the commonwealth in this proceeding to have a judicial declaration that, by the words of the statute, it died when it sold all that it possessed. The judgment is affirmed on the legal conclusions of the learned referee.