text:
    Hamilton, Appellant, v. John C. Mercer Home.

      Trusts and. trustees — Charitable trust — Failure of trust.

    A charitable trust of real and personal property to found a home for “clergymen of the Presbyterian faith who are decayed by age or disabled by infirmity, and who do not use tobacco in any shape or form,” will not be declared to have failed because of the practical failure of applicants for admission to the home, vdiere the evidence shows that applicants were deterred, not by reason of the restriction against the use of tobacco, but by a restriction, imposed by the manargers without any authority in the will, requiring applicants to separate from their wives, and that if the latter restriction were removed there would be more than enough applicants and their wives to fill the home.

      Argued April 27, 1910.
    Appeals, No. 10, Jan. T., 1910, by plaintiffs and No. 83, Jan. T., 1910, by defendants, from decree of C. P. No. 2, Phila. Co., Dec. T., 1908, No. 2,058, dismissing bill in equity in case of John McLure Hamilton, Ethel H. Lucas and the Provident Life & Trust Company, trustees under the will of Lydia I. Biddle, deceased, v. The John C. Mercer Home for Disabled (’¡ergymcn of the Presbyterian Faith.
    Before Fell, C. J., Mestrbzat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity to declare failure of a charitable trust.
    Sulzberger, P. J., filed an opinion in part as follows:
    The bill prays for a decree that certain assets and property of the defendant derived under the will of the late Ann Jane Mercer are held in trust for the heirs and next of kin of the said testatrix, and that a further decree be entered determining and enforcing the right of the plaintiffs as heirs and next of kin of the said testatrix to take said property absolutely.
    It appears that Ann Jane Mercer died on April 5, 1886, having made her will on November 26, 1885, by paragraph second of which she provided as follows:
    “Second. — Whereas I am seized and possessed of a certain Estate and Property called ‘The Mount/ situate in the County of Montgomery in the State of Pennsylvania, which I desire to devote to pious and charitable uses. Now I do hereby give devise and bequeath all my said Estate and Property, called ‘The Mount/ situate in the said County of Montgomery in the State of Pennsylvania, together with all the Buildings and Improvements thereon erected with any surrounding or adjacent Property acquired by my husband or myself forming part of the said Estate called ‘The Mount.’ Together with all the horses Carriages farming utensils furniture goods Beds and Bedding and all other personal property on the premises at the time of my decease which belong to me, to my brother John Hamilton Junior of Bucks County in the State of Pennsylvania Attorney at law his heirs Executors Administrators and Assigns in Trust as soon as possible after my decease to cause and procure a Charter of Incorporation to be granted either by the Legislature or by the proper Court for an Institution or Home to be called ‘The John C. Mercer Home for Disabled Clergymen of the Presbyterian Faith’ to be established at the said Estate and Property called ‘The Mount’ which charter shall provide that the said Institution or Home shall be for the support and maintenance of selected Clergymen of the Presbyterian faith who are decayed by age or disabled by infirmity and who do not use tobacco in any shape or form' and who in all things shall comply with the laws and regulations of the said Home otherwise to be subject to be discharged by the Board of Managers, of said Home whose decision shall be final. That the number of inmates in the Home or Institution shall never exceed its annual nett Rent and Revenue and shall not exceed twelve in number. That the Board of Managers alone are directed to admit into the Home or Institution any clergymen of the Presbyterian faith decayed by age or disabled by infirmity who do not use tobacco in any shape or form and (and) to discharge them whenever it becomes necessary or expedient whose decision shall be final.
    “That no part of the said estate and property called ‘The Mount’ and devised as aforesaid shall be sold or disposed of encumbered or applied to any other use of purpose than as a Home for Disabled Clergymen of the Presbyterian faith as above specified. And I further will and direct that as soon as the said Charter shall have been obtained and recorded my said Trustee shall grant assure and convey all the said ground with the Buildings and Improvements thereon erected, and all the personal property on the said premises belonging to me to the said ‘The John C. Mercer Home for Disabled Clergymen of the Presbyterian Faith’ their Successors and Assigns to be used and occupied solely for a Home or an Institution for disabled Clergymen of the Presbyterian faith. And in order to provide some means for the support and maintenance of the said home or institution, I do give and bequeath to the said institution, as soon as the same is incorporated, the sum of one hundred thousand dollars in trust to keep the same invested in Loans or debts of the United States or of the State of Pennsylvania or in Bonds or Mortgages of real estate within this State free from all previous Incumbrances or in well secured Ground Rents and to collect and receive the Rents Interest and income thereof and to pay and apply the same to the current expenses of the said Home.”
    And by paragraph sixteenth of which she further provided:
    “ Sixteenth. — -And as to all the Rest Residue and Remainder of my Estate whatsoever and wheresoever whether Real or Personal I do give devise and bequeath the same to my Executor hereinafter named John Hamilton Junior his heirs executors administrators and assigns to be by him applied and appropriated to such religious and benevolent uses and purposes for the Glory of God and the Extension of his Kingdom in the world, and for the welfare of suffering humanity as he my said Executor in his judgment shall see fit and proper. And my said Executor is not to be held accountable to any person or persons whatsoever for the appropriation of the said Residue of my estate, as I feel confident that it will be properly appropriated and administered by him to such religious and benevolent organizations as may stand in need of the same.”
    And by paragraph seventeenth of which she further provided:
    “Seventeenth. — I do hereby authorize and empower my Executor above and hereafter named the full power and authority to convert change and modify from time to time at pleasure any and all investments of my said Estate. And 3 do also fully authorize and empower my said Executor, as he may see proper to grant bargain and sell any portion of my real estate (except the property called 'The Mount’ and the Property No. 1819 Delaneey Place), either at public or private sale for the best prices that can be obtained therefor, and to receive and receipt for the purchase money. And to sign seal execute acknowledge and deliver the necessary Deeds and conveyances therefor to the purchaser or purchasers thereof his heirs or their Heirs and Assigns forever without anj^ liability on the part of the purchaser to see to the application of the purchase money.”
    In pursuance of the directions of the will, the defendant corporation was organized under a charter granted by the court of common pleas of Montgomery county on June 21, 1886, by article eighth of which it was provided that:
    ''This corporation shall have the power to receive, hold and manage all the real estate and personal property devised and bequeathed by the second item of the will of the said Ann Jane Mercer, deceased, and to appropriate the same for the charitable uses and purposes, and in the way and manner provided and directed by the said will. It shall also have power to hold, purchase, transfer, and apply such other real and personal estate and property as it may acquire, not exceeding the amount limited by law; and all the property thereof shall be taken and held subject to the control and disposition of the members of the said corporation.”
    And by art. X of the said charter it was provided that: “The property, real and personal, of the said corporation shall at all times remain under the control of its Board of Managers and no part thereof shall ever be subjected to the control of any other corporation, or be diverted from the uses and purposes herein designated.”
    After said incorporation, to wit, on October 30, 1886, John Hamilton, Jr., trustee under the will of Ann Jane Mercer, granted by deed to the said corporation defendant, in fee, all those several messuages and tracts of lands together called “The Mount” situate in the county of Montgomery; and by another deed bearing even date therewith the said John Hamilton, Jr., as executor of Ann Jane Mercer's will, and as residuary legatee and devisee under said will, conveyed the said premises called “The Mount” to the corporation defendant in fee; and by releases, one dated October 30, 1886, and the other dated October 11, 1886, the legatees under Ann Jane Mercer’s will released to the corporation defendant their interest in “The Mount” as legatees.
    To the said corporation there was also transferred the sum of $100,000 in trust to pay and apply the income thereof to the current expenses of the home.
    The bill alleges that the efforts of the managers of the home during the last twenty-one years to conduct that institution as directed by the will of the testatrix have proven absolutely fruitless; that it is now demonstrated that the charity provided for by the testatrix has not been, and cannot be, carried out; and that the charity has ceased to exist and has absolutely failed of its purpose.
    Hence the prayers of the bill.
    The answer denies that the charity provided for by the testatrix has not been and cannot be successfully carried out, and this raises the one substantial issue of fact.’
    The plaintiffs, in support of their contention, rely mainly on the circumstances that in the year 1908, the defendant corporation presented the following petition to the attorney general of the commonwealth:
    Here follows a recital of the will and the facts relating to the organization of the corporation.
    The petition continued as follows:
    “Third. — The corporation has been in existence for more than twenty-one years and its managers have made every effort to advertise its benefits and to invite those who were entitled to its privileges to become residents of the Home. Besides the usual form of newspaper advertisements, circulars have been sent to the moderators of all Presbyteries in Pennsylvania and to all the members of several of the General Assemblies of the Presbyterian Church. Clergymen have been guests of the Home and members of the General Assembly have visited it. It has been recommended by resolution of the General Assembly of the Presbyterian Church to every minister under the jurisdiction of the Assembly. No better proof of the efficiency of the advertisements can be found than the fact that the comparatively .few applications for admission that have been received by the managers have come from divergent, and not infrequently, most distant parts of the land. Notwithstanding the efforts of the managers, however, the primary object of the testatrix has been defeated by the few applications that have been received and the fewer applicants that have been admitted. In the twenty-one years since the institution of the Home only thirty-five applications have been received. Of this number twelve applicants were refused admission because they did not come within the class of beneficiaries designated by the will; eight did not pursue their applications, or after being approved, declined or neglected to enter, and fifteen were approved and became residents. Of the fifteen who thus entered, ten resigned or left the Home for various personal reasons not connected with the management of the institution, and four remained until the time of their death. Only one is now a beneficiary. The average of entrances has, therefore, been less than one a year, and the average of permanent residents less than one every four years.
    “Fourth. — The primary object of the testatrix appears to have been to provide for disabled clergymen of the Presbyterian faith, who do not use tobacco. There are several hundred Presbyterian clergymen in the United States who come within the provisions of. the will and who are receiving aid from the Presbyterian Church. The aid that they thus receive is entirely inadequate for their support and comfort. They object to entering a home for various reasons; some because it would entail separation from their families, and others because of the professional and personal dislike to the thought of becoming residents of any institution. It is for these reasons and not because of the lack of beneficiaries who are entitled to the privileges of the Home that its benefits have been rendered almost null and of no effect. The Board of Managers, after serious consideration, are unanimously of the opinion that the primary object of the testatrix would be accomplished by payment of the income directly to the beneficiaries coming within the provisions of the will and selected by the Managers rather than by endeavoring to fill the Home with such beneficiaries. They are of opinion and now aver that the object that the testatrix had in view, namely, the maintenance of a Home, has practically and for all purposes ceased.
    “Petitioner therefore, in accordance with the Act of Assembly in such cases made and provided, now prays leave to institute proceedings in the Court of Common Pleas of Montgomery County for the purpose of obtaining, if possible, authority from said Court to maintain the primary object of the testatrix by the payment to selected beneficiaries coming within the provisions of the will, of certain stipulated amounts to be determined by the managers of the institution instead of endeavoring to maintain a home or institution.
    “The petitioner further avers that it is willing to become responsible for the costs of the said proceedings.”
    This petition was pleaded by the plaintiffs on the thirteenth section of the bill, and the defendants in their answer admitted it. No further evidence on the affirmative side of the issue above stated was submitted by the plaintiffs.
    The defendants called witnesses on the other side. Peter Boyd, who has been connected with the defendant corporation from the beginning, testified that there have been fifteen inmates in the home at various times; that six was the highest number at any one time; that the fund cannot support more than six; that the petition to the attorney general was presented, not because the home is an impossibility, but because the benefits of the testatrix’s provision could be more widely extended by the application of the cy pres doctrine; that there are now 467 disabled clergymen of the Presbyterian faith getting relief from the board of ministerial relief of the Presbyterian church; that this board has requested the managers of the home to extend its benefits by not maintaining a separate home; that in consequence of these solicitations the petition was filed; that the home can be maintained; that its income is $6,000 a year, and the fixed charges for maintaining it without inmates $3,500 a year, leaving a net fund of $2,500 for supporting inmates; that at present prices four is the largest number that can properly be supported with this fund; that if the property were sold there would be a total fund of about $135,000, with a probable net annual income approximating $7,000, and that such income could do as much good to twelve as by maintaining the home could be done for four; that the wives of clergymen have not been admitted, because the beneficiaries described in the will are “disabled clergymen of the Presbyterian faith who do not use tobacco;” that the board have always construed the bequest as constituting an inability to take a wife with her husband; that if the admission of a wife with her husband were allowed, there would not be enough- room for the people who would want to come in; that the accommodations would not admit of more than three clergymen and their wives, but that very few are willing to come without their wives; that the home has now one inmate and he is not actually in the home, but is taking care of it; that things have been kept in that condition pending the decision in this case; that since the filing of the bill there is another applicant.
    The witness further deposed that of the thirty-five applicants, twelve were refused because they used tobacco or were not Presbyterian clergymen; one or two were refused because they had an incurable ailment, and the home had no resources for hospital work. Those who were admitted seemed to have a pleasant time. Pour died there, one of whom had lived there ten years. The scant numbers are largely due to the inability to bring their wives, and the petition to the attorney general was prompted by the feeling of the church at large that the benefits of the home will be more available if stipends are given to clergymen at their homes.
    The Rev. William W. Ileberton, the treasurer of the board of ministerial relief, testified that there are. 457 Presbyterian clergymen on their roll, probably only a small number of them use tobacco. There are altogether 9,000 clergymen in the Presbyterian church north and probably 4,000 in the Presbyterian church south. There is no other agency than the ministerial relief fund to take care of decayed Presbyterian clergymen north.
    OPINION.
    The pith of the plaintiffs’ case is that the objects of the trust created by the testatrix have ceased. The beneficiaries of her bounty were to be “clergymen of the Presbyterian faith who are decayed by age or disabled by infirmity, and who do not use tobacco in any shape or form.” That there are hundreds of persons answering to this description is made clear by the uncontradicated evidence. The literal accuracy of the plaintiffs’ charge is, consequently, negatived. Their reliance must therefore be on its substantial correctness. This, they think, is established by the fact that the defendant corporation made and filed the above-recited petition to the attorney general, in the third paragraph of which they aver that “notwithstanding the efforts of the managers, however, the primary object of the testatrix has been defeated by the few applicants that have been received and the fewer applicants that have been admitted;” and again in the fourth paragraph, “They are of opinion and now aver that the object that the testatrix had in view, namely, the maintenance of a Home, has practically and for all purposes ceased.”
    This petition, however, settles no fact. It is at most evidence that the petitioner held certain definite opinions as to the impracticability of the charity which it is their duty to administer. The defendant corporation is the trustee, and its functions are exercised by a board of managers. The opinion of the trustee that the trust has definitely failed may, of course, be heard by the chancellor, but his judgment cannot be controlled by it. Before he can strike down a charitable trust his conscience must be satisfied. And this would be true, even if the plaintiffs and defendants formally united in their opinion and in the prayer for the decree.
    Gifts to charity have a public character. They are in relief of the commonwealth, and the latter has an interest in their maintenance,. Wanting its assent, agreements between parties, that the trust may be divested and its capital become the private property of one of them, are incomplete and ineffective.
    It follows inevitably that if the agreement of both parties would be inoperative, the mere statement or petition of one of them, under oath or not, can have no greater power.
    In Mormon Church v. United States, 136 U. S. 1-59, Mr. Justice Bradley said:
    “The true grofind is that the property given to a charity becomes in a measure public property, only applicable as far as may be, it is true, to the specific purposes to which it is devoted, but within those limits consecrated to the public use, and become part of the public resources for' promoting the happiness and well-being of the people of the state. Hence, when such property ceases to have any other owner, by the failure of the trustees, by forfeiture for illegal application, or for any other cause, the ownership naturally and necessarily falls upon the sovereign power of the state; and thereupon the court of chancery, in the exercise of its ordinary jurisdiction, will appoint a new trustee to take the place of the trustees that have failed or that have been set aside, and will give directions for the further management and administration of the property; or if the case is beyond the ordinary jurisdiction of the court, the legislature may interpose and make such disposition of the matter as will accord with the purposes of justice and right. The funds are not lost to the public as charity funds; they are not lost to the general objects or class of objects which they were intended to subserve and effect. The state, by its legislature or its judiciary, interposes to prevent them from dissipation and destruction, and to set them up on a new basis of usefulness, directed to lawful ends, coincident, as far as may be, with the objects originally proposed.”
    After carefully weighing the whole evidence, we cannot find that the extreme statements of the petition are to be accepted. The circumstances under which it was filed explain its character and determine its judicial value.
    The testatrix established a trust which, in the opinion of many of the best minds in her church, savored of eccentricity. The church at large had constituted a board for the relief of the same general class of persons, and was, in the common opinion, doing more good with a given amount of money than the same sum would accomplish under the very definite terms of the will. A conviction became general that an abandonment of the peculiar notions of the testatrix would accomplish more of her real purpose than the adherence to them, and that, therefore, the trust fund should be held and used in the manner approved by the experience of the board of ministerial relief. This conviction naturally affected the mind of the defendant trustee and gave rise to the petition. It was based on the thought that a sufficient cáse for the application of the cy pres doctrine could be made out, and certain passages were, under the circumstances, unduly emphasized.

      The trustees’ state of mind, as thus depicted, would point to a mild kind of unconscious hostility to the trust which they were to administer. The thought, for instance, that a Presbyterian clergyman would have to desert his wife of many years, as a prerequisite to admission to the home, was read into the will. No word to that effect is written therein, nor is such a regulation fairly inferable therefrom. We cannot impute to a pious woman the idea that a minister of the gospel, should for the sake of a little added personal comfort, repudiate his life companion and thus set at naught the binding injunctions of human and divine law. To “support and maintain” an old clergyman means to enable him to keep himself and his wife. It would have been easy to specify the contrary, if the contrary had been meant. In such event the benefits would have been confined to single men or to widowers, but while she was careful to exclude .tobacco-users, the testatrix said nothing about the more important matter.
    There seems to be no doubt that if this restriction were . removed, the home would be too small for the applicants, and against the removal of this restriction there is no valid reason.
    If, therefore, the benefits of the defendants’ fund have been unduly small, the remedy is to be sought, not in the destruction of the charity, but in its more efficient administration.
    Fortunately, the powers of a court of equity are ample for the purpose. Whenever it is shown that trustees are derelict in the administration of their trust, the chancellor interferes to save the trust. This ancient remedy, under the inherent jurisdiction of the court, has been formally ratified by statute. The Act of June 16, 1836, sec. 13, P. L. 785, 789, confers upon us the jurisdiction and powers of á court of chancery so far as relates to
    “IV. The control, removal and discharge of trustees, and the appointment of trustees, and the settlement of their accounts.” And as regards the case in hand we have the additional power conferred in the same section, subhead
    “V. The supervision and control of all corporations other than those of a municipal character. . . .”
    If the plaintiffs have a standing here, it would be easy to shape a bill and its prayers so that any inefficiency in management tending to destroy or to impair the trust may be corrected.
    In accordance with these views the bill should be dismissed.

      Error assigned amongst others was decree dismissing the bill.

      W. W. Porter, of Porter, Foulkrod & McCullagh, with him Townsend, Elliott & Townsend, for appellants.
    The complainants, being the representatives of the heirs at law of the testatrix, are entitled to all of the property bequeathed and devised by her to the charitable use which has ceased to exist: Siegel v. Lauer, 148 Pa. 236; Kirk v. King, 3 Pa. 436; Quin’s Est., 144 Pa. 444; Brown’s Est., 152 Pa. 401; Ruth’s App., 10 W. N. C. 498.
    The pleadings and the evidence show that the charitable use attempted to be created by the testatrix has failed and for all practical purposes has ceased to exist.
    The wives of clergymen of the Presbyterian faith are not within the class which the testatrix sought to benefit: Fox’s App., 99 Pa. 382.

      John O. Johnson, with him A. Culver Boyd and Maurice Bower Saul, for appellee.
    The John C. Mercer Home for Disabled Clergymen of the Presbyterian faith has not failed or ceased to exist as a charitable institution: Lazarus’ Est., 142 Pa. 104; Kates’ Est., 148 Pa. 471; Hess’ Est., 150 Pa. 346; Coulston’s Est., 161 Pa. 151; Lewis’ App., 127 Pa. 127; Crosetti’s Est., 211 Pa. 490; Cowan’s Est., 184 Pa. 339; McPherran’s Est., 212 Pa. 425; Plankinton’s Est., 212 Pa. 235; Reinoehl’s Est., 212 Pa. 359.

      May 24, 1910:
   Per Curiam,

The decree appealed from in No. 10, is affirmed at the cost of the appellant on the findings of the learned president judge of the common pleas that the charity had not failed. This conclusion makes it unnecessary to consider the question raised by the cross appeal of the defendant and it is dismissed.


source: Caselaw Access Project

author: Me. Justice Elkin,

license: Public Domain

text:
    Taylor v. Taylor, Appellant.

      Ejectment — Tax title — Title against title — Evidence.
    1. In an action of ejectment in which a tax title is arrayed against a tax title, the plaintiff must stand upon the strength of his own title and not upon the weakness of that of his adversary.
    2. Where a tract of unseated lands is sold for taxes and bought in by the county commissioners, and later on the same day a portion of the same tract separately assessed, and thus doubly assessed, is sold for taxes and bought in by the county commissioners, and thereafter the county commissioners sell the tract described in the deed following the first sale to one purchaser, and the tract described in the deed following the second sale to another purchaser, the purchaser of the first or larger tract takes title to the smaller tract included therein as against the second purchaser.
    3. In such a case the purchaser of the first sale takes a complete title, so that there is nothing to pass at the second sale.
    4. A sale of unseated land for taxes divests the liens of all taxes prior to the year in which the sale is made, and a subsequent sale under taxes for a year prior to the year of sale but subsequent to the year of the lien under which the original sale was made passes no title.
    Argued May 2, 1910.
    Appeal, No. 191, Jan. T., 1909, by defendant, from judgment of C. P. McKean Co., Dec. T., 1906, No. 140, on verdict for plaintiff in case of James Taylor v. Welthia A. Taylor.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in Annin township. Before Lindsey, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      The court charged in part as follows:
    The question which we have here, as we understand it, is which obtained the better title? And we are of opinion that if the treasurer’s sale for the 238 acres to the commissioners of McKean county was first in time on that date, namely, September 23, 1890, no matter how short the time it preceded the title to the commissioners to the 112 acres, and your verdict must be for the plaintiff for the premises described in the writ.
    If you find that the sale of the 238 acres was made first before the sale of the 112 acres, no matter how short a time, the plaintiff would get the better title. When the sale of the 238 acres was made on September 23, 1890, based on the taxes of 1888, as soon as it was made the purchaser would take what is termed an inchoate title, which ripened into a perfect title at the end of the time allowed by law for redemption. And I call your attention here to the fact that the deed from S. S. Bullis to the defendant described the defendant’s 126 acres fully, and has been identified here on the map, and thus this sale that was made of the 238 acres did not vest any title in the 126 acres, but did carry the title — passed the title to the balance of the land or the 112 acres of land.
    The taxes were paid on the 126 acres of land and that was defined by the deed, easily defined, so that the balance on which the taxes were not paid could be easily ascertained, and has been identified as the 112 acres in the north part or north of that diagonal line pointed out on the map.
    Now, if you believe that the sale of this piece of land preceded in time the sale of the 112 acres to the commissioners, which was conveyed by the commissioners, and by sundry deeds, vested in the defendant, no matter how short that time might be, if it was sold first, the plaintiff in our opinion, and we so instruct you, would obtain the better title, and would be entitled to recover.
    Now, as to that there is no dispute as to the evidence. The deputy treasurer who attended to the sales at that time, testified that it was first on the list, and they commenced at the head of the list and followed the order; that the pieces were put on the sales list, and that the 238 acres were sold first before the 112 acres. And if you believe this evidence your verdict should be for the plain- , tiff in this case. There is no dispute as to that testimony, and unless there is some reason why you should not believe the deputy treasurer in this case, why then, your verdict should be for the plaintiff, and after we have answered the points in the case we will leave this question to you, the only question which you have to decide.
    May 24, 1910:
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned among others was portion of charge as above, quoting it.

      G. B. Mayo, with him E. R. Mayo, for appellant,
    cited: McCloskey v. Kunes, 142 Pa. 241; Morton v. Harris, 9 Watts, 319; Woodburn v. Wireman, 27 Pa. 18; Caul v. Spring, 2 Watts, 390; Keen v. Sheehan, 154 Mass. 208 (28 N. E. Repr. 150); Lane v. Reynard, 2 S. & R. 65; Chew v. Barnet, 11 S. & R. 389; Fisher v. Philadelphia, 75 Pa. 392; Bonaffon v. Peters, 134 Pa. 180; Hetherington v. Clark, 30 Pa. 393; Ebner v. Goundie, 5 W. & S. 49; Lightner v. Mooney, 10 Watts, 407.

      F. D. Gallup, for appellee,
    cited: Kunes v. McCloskey, 115 Pa. 461; Shumway v. Phillips, 22 Pa. 151; Robinson v. Williams, 6 Watts, 281; Phila. v. Raup, 177 Pa. 396; Irwin v. Trego, 22 Pa. 368; Clapp v. Pinegrove Twp., 138 Pa. 35; Goodman v. Sanger, 91 Pa. 71.
   Opinion by

Me. Justice Elkin,

This is an action of ejectment in which a tax title is arrayed against a tax title. It is argued for appellant that plaintiff must stand upon the strength of his own > title and not upon the weakness of that of his adversary, which of course is the law, and that he cannot recover in this action because of failure to meet this burden. There is no difficulty about the rulé, and the question involved in the court below and here is whether the plaintiff was entitled to recover upon the strength of his own title. If the plaintiff did not have a valid title he cannot recover possession of the land in controversy no matter whether the defendant had a perfect title or not. The question to be determined is whether the plaintiff had a good title. He claims through a tax title which if good entitles him to the possession. A brief recital of the facts is necessary in order to understand the nature of the controversy. For the year 1888, the assessor of Annin township returned on the unseated list 238 acres of land as in warrant 3,450 in the name of George Helwig. and also returned on the same unseated list 126 acres in the name of appellant here. The taxes on the 238 acres not being paid were returned and became a lien upon the land. For the year 1889, the assessor in the same township returned on the unseated list 112 acres in warrant 3,450 in the name of George D. Helwig and 126 acres in different warrants in the name of appellant. The taxes were not paid on the lands assessed in the name of appellant for the year 1889, and were returned and became a lien upon the property. At an adjourned sale on September 23, 1890, the county treasurer sold the 238 acre tract to the county commissioners upon the assessment and for the taxes of 1888. On the same day, but after the sale of the 238 acre tract had been made, the 112 acre tract was sold to the county commissioners upon the assessment and for the taxes of 1889. The county held the titles thus acquired until August 20, 1895, when the commissioners sold the 238 acre tract to one purchaser and the 112 acre tract to another, and duly signed and delivered deeds for the same. The plaintiff claims the land in dispute by purchase from those who acquired the tax title to the 238 acre tract while the defendant claims by purchase of the tax title for the 112 acre tract sold for the taxes of 1889. The evidence shows that the 112 acre tract was a part of the 238 acre tract, both being included in warrant 3,450. Upon the conceded facts it is clear there was a double assessment to the extent at least of the land involved in this controversy. The question then arises under this state of facts which title purchased at the tax sale has the priority. Both tracts were sold on the same day. Only one question was submitted to the jury by the learned court below and that was, Which sale was first made? The jury found from the evidence that the first sale was of the 238 acre tract for the taxes of 1888, and that the sale of the 112 acre tract for the taxes of 1889 was subsequently made. With this fact ascertained the learned court,below held as a matter of law that the sale which was first made in point of time gave precedence and priority of title. We think this is the correct rule and that it has been so decided in our own cases: Kunes v. McCloskey, 115 Pa. 461, and McCloskey v. Kunes, 142 Pa. 241. These cases hold that the purchaser of land at a treasurer’s tax sale has an inchoate title the moment the property is knocked down to him which becomes perfect with the payment of the purchase money. His rights are fixed by the sale, and the subsequent payment of the purchase money and the delivery of the deed relate back to it. These cases announce no new rule in this respect but followed the authority of earlier cases. It is sound and we see no reason to disturb it. Let us now apply that rule to the facts of the present case. Here was an assessment for the year 1888, on 238 acres of unseated land and in the year 1889, on 112 acres, which it is admitted were included in the larger tract. It was of course a double assessment to the extent of the interference, but the taxes were regularly assessed and the sales were made in accordance with the requirements of the statute so that the regularity of the assessment as well as of the sale cannot be questioned. When the taxes were returned they became liens on the lands against which the taxes were levied, which liens attach to and are coextensive with the land assessed. When the sale of the land for the taxes of 1888 was made in 1890, the liens of all taxes prior to the year in which the sale was made were divested: Irwin v. Trego, 22 Pa. 368. The land, by whatever name assessed and sold, was debtor for the taxes imposed, and the sale in satisfaction of the assessment conveys a good title to the purchaser: Miller v. Hale, 26 Pa. 432. What passes under the sale depends upon what was bound by the lien. The extent of the lien in tax cases must depend upon the assessment, and all the land included in the assessment passes with the tax sale: Brundred v. Egbert, 164 Pa. 615. There can be no doubt that the 238 acre tract in the assessment for 1888 was liable for the payment of the taxes imposed, and it is equally clear that when this tract was sold for the payment of those taxes in 1890, the purchaser at that tax sale took title to all the land bound by the assessment. The learned counsel for appellant contends for the rule that has been held to apply in some cases where there has been a double assessment by reason of older and younger warrants overlapping. The rule of these cases has no application to the case at bar because no question of title depending upon the date of warrants or upon older or younger surveys is raised. In the present case both tracts were included in the same warrant and so far as the chain of title is involved both claim from a common source. When the property was knocked down to the county commissioners at the sale in 1890 for the taxes of 1888, the lien of the taxes for 1889 was divested and the purchaser at that very moment acquired an inchoate title with the tax liens for the years 1888 and 1889 divested. It follows as of course that when the county treasurer offered the same land for sale for the taxes of 1889, there was no valid lien upon which to base a sale, and the purchaser under these circumstances did not take a good title. The county commissioners who purchased at the first sale took the title to the 238 acre tract, and that is the title upon which plaintiff stands. We think that title is good and agree with the conclusion reached by the learned court below.

Judgment affirmed.


author: Mr. Justice Elkin,

text:
    Rockwell, Appellant, v. Warren County.

      Taxation — Unseated lands — Severance of oil, gas and minerals

    The title to oil, gas and minerals may be severed from the surface of unseated lands, and if such severance has taken place, such oil, gas and minerals may be separately taxed, if it be ascertained they have taxable value.
    Argued May 3, 1910.
    May 24, 1910:
    Appeal, No. 316, Jan. T., 1909, by plaintiffs, from judgment of Superior Court, April T., 1909, No. 31, reversing decree of C. P. Warren Co., March T., 1908, No. 41, granting injunction in case of F. H. Rockwell & Company v. Warren County and C. S. Keefer, Treasurer.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court. See 39 Pa. Superior Ct. 468.

      Error assigned was judgment of the Superior Court.

      D. I. Ball, for appellants.

      John Siggins, Jr., county solicitor, for appellees.
   Opinion by

Mr. Justice Elkin,

The question involved here is whether the oil, gas and minerals reserved from the grant of the surface of several tracts of unseated land and now in a separate ownership can be taxed as real estate. If they are real estate of course they can be taxed as such, and whether they are or not always depends upon the nature of the reservation or grant. A mere license to mine coal or to drill for oil and' gas, unaccompanied by the right of ownership in the ! minerals underlying the surface, does not constitute an estate in land. On the other hand, oil, gas and coal are minerals and when the title to the same is severed from the owner of the surface and is vested in a separate owner, an estate in land is thus created, which if it be of any value, may be taxed. In the court below it was sought to restrain the collection of certain taxes which had been assessed against the oil, gas and minerals in several tracts of unseated land on the ground that there was no authority of law for the assessment of such minerals in unseated lands. It is contended that an unseated tract of land must be assessed as one entire body and cannot be divided horizontally into different estates which may be separately owned. It has been held over and over again that there may be different estates and separate ownership of title in the same tract of land. One person may own the surface, another the coal, another the fire clay and another the granite rock. It is too well settled to admit of argument that there may be such a severance of estates in a tract or tracts of land, and when there is such a severance, each separate owner has an estate therein. It is just as well settled that each separate estate is subject to valuation and assessment as land. As we understand the argument of the learned counsel for appellant it is conceded that this is true as to seated lands, but it is earnestly contended that the rule should not apply to unseated lands. This distinction is too artificial to be substantial. As to the character of the estate and the right of ownership therein there is no difference between seated and unseated lands. There is and can be no reason why the coal and other minerals underlying unseated lands may not be severed from the surface in the same manner and subject to the same incidents of ownership as in seated tracts.

It is argued that because seated lands are assessed in the name of the owners while unseated lands are assessed by survey or warrant numbers regardless of the owners whose names if used at all are only for the purpose of description, there being a personal responsibility for the payment of the taxes on seated tracts and the lands alone being bound if unseated, that the right of severance for the purpose of taxation at least does not exist in the same manner in both instances. This position is unsound and results from a confusion of the rights of owners in dealing with their own estates and the power of taxing authorities in the levy and assessment of taxes. The authority to tax and the manner of its exercise has nothing to do with the right of the owner either to hold his tract of land entire or to sever it by the grant of different estates therein. The tax is assessed upon the property to be taxed, and that property may consist of the entire tract, or of the surface, or of the minerals, depending upon whether or not there has been a severance. The right to sever being established, the power to tax the severed estate necessarily attaches. For convenience growing out of the difficulties of ascertaining the owners, and other like considerations, the legislature provided a somewhat different method of making assessments of unseated lands and of collecting taxes levied against them, but these tax laws were not intended to and did not interfere with the right of the owner to dispose of his lands by severance or otherwise as to him might seem most advantageous. Most certainly the legislature did not intend by and through tax laws to make a distinction between the owners of seated and unseated lands as to the right of severance. There was a severance of the oil, gas and minerals in the case at bar from the surface and there can be no doubt under the authority of many cases that the separate ownership of these minerals constitute an interest or estate in land: Logan v. Washington County, 29 Pa. 373; Caldwell v. Copeland, 37 Pa. 427; Funk v. Haldeman, 53 Pa. 229; Sanderson v. Scranton, 105 Pa. 469; Gill v. Weston, 110 Pa. 312; Lillibridge v. Coal Company, 143 Pa. 293; Westmoreland, etc., Natural Gas Co. v. DeWitt, 130 Pa. 235; Powell v. Lantzy, 173 Pa. 543; Blakley v. Marshall, 174 Pa. 425; Marshall v. Mellon, 179 Pa. 371; D. & H. Canal Co. v. Hughes, 183 Pa. 66; Hutchinson v. Kline, 199 Pa. 564.

It is clear, therefore, that there was a severance of the oil, gas and minerals from the surface and we agree with the views expressed in the very excellent opinion of the learned judge of the Superior Court that this constituted an estate in land subject to taxation even if this mineral estate did underly unseated lands. We also agree with the argument submitted by counsel for appellees that where there is a divided ownership in unseated lands, the surface being owned by one party and the minerals by another party, the surface is subject to assessment for taxes as unseated land and a tax deed would convey the title to the surface only if the tax was assessed against the surface only, and the minerals when severed are subject to separate assessment in the same manner as the surface and a tax title to the minerals when properly assessed and sold for the payment of taxes would convey a good title to the minerals.

While the question has not been raised here it is important to keep in mind the fact that the right to tax depends upon the valuation and assessment of a definite estate in land. If there is no land there is nothing to tax, and this principle applies as well to minerals as to surface. Because there may be a reservation of oil and gas by the grantor of the surface, or there may be an express grant of all the oil and gas underlying one or several tracts of land, it does not follow that in point of fact there is any such estate in existence. When the assessor goes upon the land it is his duty to make a valuation upon information or knowledge which will furnish some definite fixed basis of valuation. A mere naked reservation of oil and gas in a deed without any other facts to base a valuation upon is not sufficient to warrant the assessment of taxes. Development in the neighborhood, sales of oil or gas lands in close enough proximity to add value, or any other element of value which may form a basis of valuation may be taken into consideration by the assessor or other taxing authorities, but it should always be borne in mind that real estate is the thing being dealt with and ) that oil and gas are considered real estate and if there be \ no oil and gas then there is no real estate to be taxed.

Decree affirmed at the cost of appellant.


text:
    Peterson, Appellant, v. Elk Tanning Company.

      Negligence — Master and servant — Contributory negligence.

    In an action by an employee against Ms employer to recover damages for personal injuries, the question of the plaintiff’s contributory negligence is for the jury where the evidence tends to show that the plaintiff was ordered to work in the near vicinity of moving macMnery without a guard around it, and that he had not been warned of the danger or given any instructions as to the macMnery.
    Argued May 3, 1910.
    Appeal, No. 136, Jan. T., 1910, by plaintiff, from judgment of C. P. Elk Co., April T., 1909, No. 25, on verdict for defendant in case of Gust Peterson v. Elk Tanning Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Hall, P. J.
    At the trial it appeared that the defendant was a carpenter employed in a tannery owned and operated by the defendant. The evidence tended to show that plaintiff had been directed to make some repairs near a running .shaft on which was a collar with an extending set screw; that the machinery was in operation and without a guard around it; that the plaintiff had not been warned of the danger, or instructed as to his work, and was injured by coming in contact with the moving machinery while rescuing a fellow workman whose clothes had been caught in a shaft during the making of the repairs. It also appeared that he had asked whether tjhe machinery was to be stopped, and was told that if he did not want to work he could go home. The court directed a verdict for defendant.
    May 24, 1910:

      Error assigned was the giving of binding instructions for defendant.

      Fred H. Ely, for appellant.

      Thomas H. Murray, with him C. II. McCauley, for appellee.
   Opinion by

Mr. Justice Elkin,

This is an action of trespass for damages for injuries suffered by reason of the alleged negligence of the defendant company. The learned trial judge directed a verdict for the defendant on the ground of the contributory negligence of the plaintiff. In other words, that under the evidence the injured party was so clearly guilty of contributory negligence as to warrant the court in so holding as a matter of law. We do not so read or understand the facts of the case as shown by the evidence produced at the trial. If the testimony of the plaintiff and his witnesses is believed by a jury, it would at least be for them to say whether under the circumstances he was guilty of contributory negligence. It may be that if the facts relating to the accident as proved by the witnesses produced by the defendant were undisputed the court upon such established facts might say as a matter of law that the plaintiff was guilty of contributory negligence. The facts are not undisputed and in such cases it is the province of the jury to pass upon the credibility of witnesses for the purpose of determining what the real facts are. We are all of opinion that the questions of negligence and of contributory negligence are for the jury and that no useful purpose can be served by a discussion of the several questions considered in the paper-books.

Judgment reversed and a venire facias de novo awarded.


author: Per Curiam,

text:
    Heckman v. Kipp, Appellant.

      Will — Family agreement — Decedent’s estate — Fee simple estate — Life estate.

    A widow who has been given a fee simple estate under one will of her husband, is not deprived of such estate by entering into an agreement with her husband's heirs, by which a later will is set aside, and by which she agrees that if any estate or property of the decedent, “which becomes hers by virtue of said last will and testament hereby authorized and directed to be proven, shall remain after her death, the same shall become the property of and pass to” the heirs of the decedent.
    Argued May 10, 1910.
    May 24, 1910:
    Appeal, No. 278, Jan. T., 1909, by defendant, from judgment of C. P. Juniata Co., Sept. T., 1909, No. 49, for plaintiff on case stated in suit of Elizabeth Heckman v. H. C. Kipp.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate. Before Shull, P. J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was in entering judgment for plaintiff.

      Andrew Banks, for appellant.

      J. N. Keller, for appellee.
   Per Curiam,

Under the will of 1886 Elizabeth Heckman, the plaintiff, took a fee simple title to the real estate sold by her to the defendant. The agreement of December 24, 1897, between her and the residuary legatees under the will of 1897 did not lessen her interest in or deprive her of the absolute title to the property; on the contrary, it confirmed it. It sets aside and declares the will of 1897 to be null and void; and provides that the will of 1886 shall be proven and filed as “the said decedent’s last will and testament.” These provisions of the agreement eliminated the will of 1897 so far as it disposed of this property, and recognized and confirmed the validity of the will of 1886 under which the plaintiff took a fee simple title.

The appellants contend that the plaintiff is vested with only a life estate in the property by reason of the clause in the agreement which provides that Mrs. Heckman “doth hereby promise and agree that if any estate or property of the said George Heckman, deceased (which becomes hers by virtue of said last will and testament hereby authorized and directed to be proven), shall remain after her death, the same shall become the property of and pass to the said parties hereto of the first part.” This clause of the agreement not only does not lessen or reduce Mrs. Heckman’s interest in the real estate devised to her by her husband but declares that it “becomes hers by virtue of said last will and testament.” The provision does not restrict Mrs. Heckman’s power of alienation or deprive her of disposing of the property as she may see fit. The clause in no way prevents her absolute control or disposition of the property. The language of the clause is that she “promises and agrees that if any estate or property of the said George Heckman deceased shall remain after her death, the same shall become the property of and pass to the said parties hereto of the first part.” By implication, this very clause authorizes her to sell or dispose of the property. The only interest or property the appellants take under the agreement is such estate or property as “shall remain after her death.” If at her death Mrs. Heckman has none of the property passing under the will, the appellants get nothing. It is apparent, we think, that the agreement confirms and does not lessen or otherwise affect the fee simple title of Mrs. Heckman to the real estate devised to her by the will of 1886.

The judgment is affirmed.


text:
    Smith, Appellant, v. Dreyer.

      Evidence — Parol agreement — Memorandum, in writing.

    A memorandum in writing offered by the plaintiff in an action of assumpsit to corroborate his testimony as to an alleged oral agreement with defendant, is properly excluded where it appears that it was dated three months after the alleged agreement, that it was not made in pursuance of any agreement, or in the presence of the defendant, or by his direction, or with his knowledge and consent, and that the memorandum on its face did not in fact support, but tended to contradict plaintiff’s testimony.
    Argued May 10, 1910.
    May 24, 1910:
    Appeal, No. 1, Jan. T., 1910, by plaintiff, from judgment of C. P. Mifflin Co., May T., 1908, No. 105, on verdict for defendant in case of William G. Smith v. Peter Dreyer.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover a balance alleged to be due on.a contract. Before Wools, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was the refusal to' admit a memorandum and note.

      Wm. H. Sponsler, with him T. M. TJttley & Son, for appellant.

      James M. Barnett, of Barnett & Son, with him Culbertson & Culbertson, for appellee.
   Per Curiam,

There is but a single assignment of error and that is in direct violation of rule 31 of this court. It alleges error in not admitting in evidence the memorandum note and the writing thereon. The learned court was clearly right in excluding the offer. The note and the memorandum thereon were offered to corroborate the plaintiff who testified that the defendant agreed, on or about November 2, 1907, to assume payment of the note given by Smith and Dreyer to the trust company on August 3, 1907. The memorandum is dated February 1, 1908, about three months after the date of the alleged agreement. It was not shown that the memorandum was made in pursuance of any agreement between the parties to the action, or that the person who made it knew of any conversation or agreement that it should be made. It does not appear that it was made in the presence of the defendant or by his direction or with his knowledge and consent, and neither Hartman nor Grove was called to explain it. But aside from any other sufficient reason for rejecting the offer, the memorandum did not tend to sustain the plaintiff’s allegation or to prove that the defendant agreed to assume the payment of the note. The most it does show, if it shows anything, is that notice was to be given to Dreyer to pay the interest on the note which, it appears, he did on two different occasions, the last being on the day the memorandum was dated. Both parties continued liable to the trust company for the payment of the note.

In fact, the memorandum did not support but tended to contradict the plaintiff’s testimony. He alleged and testified that the defendant, on or about November 2, 1907, agreed to assume the payment of the note, and that Mr. Hartman, the treasurer of the trust company, said they would arrange the matter by a memorandum note that would release the plaintiff from liability thereon. This memorandum note, however, did not release the plaintiff but his liability thereon continued the same as it was when he and Dreyer, the defendant, executed the note. In no aspect was the offer of the memorandum or of the copy of the note on which it was made admissible, and, therefore, it was not error to reject it.

Judgment affirmed.


text:
    Humbert, Appellant, v. West Penn Railways Company.

      Deeds — Covenants—Construction—Street railway — Passes—Carriers.
    Where an owner of land grants it by deed to a street railway com- ' pany in consideration of the latter furnishing free electric current and issuing five passes to such members of the grantor’s family as he may designate, “for such length of time, only, as they reside at their present residence,” and the family removes for a short time to another state, but afterwards returns, and for many years thereafter the passes and electric current are furnished without objection, the railway company cannot allege as a ground for forfeiting the privilege conferred by the deed, the removal of the family to another state years before; nor does the fact that the title to the residence passed to another, give the right of forfeiture, if the family continues to occupy it.
    Argued May 10, 1910.
    Appeal, No. 140, Jan. T., 1910, by plaintiff, from decree of C. P. Fayette Co., No. 568, in equity, dismissing bill in equity in case of Anna Clara Humbert v. West Penn Railways Company.
    Before Mesteezat, Pottee, Elkin, Stewaet and Moschziskee, Jj.
    Reversed.
    Bill in equity for an injunction and for specific performance. Before Umbel, P. J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      E. C. Higbee, of Sterling, Higbee & Matthews, with him S. R. Goldsmith, for appellant,
    cited: Gillespie v. Iseman, 210 Pa. 1; People’s Nat. Gas Co. v. Wire Co., 155 Pa. 22; Wright v. Gas Co., 2 Pa. Superior Ct. 219.
    Lee Smith, of Smith & Brownfield, with him S. A. Gilmore, for appellee,
    cited: Henderson v. Hunter, 59 Pa. 335; Alexander’s App., 20 W. N. C. 283.

      May 24, 1910:
   Opinion by

Mr. Justice Elkin,

This is a bill in equity in the nature of an amicable proceeding to determine the rights of the parties under a covenant in a deed conveying a small tract of land used as a park upon the conditions therein stipulated. The particular covenant involved in this case is neither a condition of nor a limitation upon the grant itself, but has to do solely and alone with the consideration of the conveyance. As a part of the consideration it was agreed by the grantee railway company for itself, its successors and assigns, that free transportation and free electric current should be furnished George J. Humbert and a limited number of his family while they resided at a certain residence therein mentioned. The language of the covenant is as follows, to wit: “Said party of the second part, its successors and assigns, will grant to the said George J. Humbert, to be issued to such members of his family as he may designate, five passes over the line of the Connelsville Suburban Street Railway, for such length of time, only, as they reside at their present residence at the corner of Park Avenue and Pittsburgh Street.” The provision for electric current is the same in so far as time and residence are involved. It must be conceded that the provision for furnishing free transportation and free electric current is not definite and fixed by the terms of the covenant itself as to the persons to be transported or the time to be enjoyed. George J. Humbert was to designate the members of the family for whom transportation was to be provided and such right of transportation was to be enjoyed “for such length of time, only, as they reside at their present residence.” The privilege was limited to five members of the family who were to be designated by George J. Humbert. The right to enjoy the privilege depended upon this designation and only those thus designated are entitled to demand it. As to the members of the family, failure to designate would defeat the right to demand transportation, and only those designated by Humbert are in position to demand the privilege. Those who were designated are entitled to enjoy the privilege so long as they reside “at their present residence.” We take this to mean that each one of the five thus designated can demand free transportation only so long as he or she resides at the particular residence mentioned. When all remove from the residence the privilege is forfeited, or when anyone leaves the residence the privilege as to him is at an end. After the death of Humbert there could be no substitution of a person not then designated for one designated by him in his lifetime. It is contended, and the learned court below so held, that because upon one occasion at least and perhaps upon others the Humbert family had removed from their residence for short periods of time the privilege was forfeited and cannot now be demanded. Residence is always a question of intention, and no one would seriously contend that if a family left their residence for a temporary stay elsewhere that such a removal would be a change of residence within the meaning of the law. On the other hand, if the intention to change the residence clearly appears the fact that only a short time intervenes from the date of the removal to the return is immaterial. In the case at bar, if the fact of the removal to West Virginia had been taken advantage of at the time we are inclined to agree with the learned court below that a forfeiture of the privilege might have been declared, but it was not taken advantage of and the privilege was extended to the family after their return and this situation continued for several years thereafter. We think this was a waiver of the right to declare a forfeiture by reason of the removal at that time and that it is too late to do so now for acts committed then. What has been said as to free transportation applies in a general way to the obligation to furnish free current so long as the family resides at the residence mentioned. For many years after the acts upon which appellee now relies to have a forfeiture declared were committed, the parties recognized the obligation to furnish free transportation and free electric current as binding, and in our opinion this constitutes a waiver of the right to declare a forfeiture for those acts and leaves the parties where they stood under the original covenant. The case of Pennsylvania Company v. Erie, etc., Railroad Company, 108 Pa. 621, is relied on by learned counsel for appellee to support the contention that the recognition of the contract to furnish free transportation by a lessee company for several years cannot be considered in determining the rights of the parties under an unambiguous contract. A superficial view of that case gives color to this contention, but a closer examination shows that nothing therein said or decided in any way militates against the position here taken. That was a case between a lessor and a lessee railroad company to determine what obligation the lessee company under its contract of lease had assumed in respect to a certain parol contract made by the lessor company twenty-five years before the lessee company had anything to do with the subject-matter of the controversy. It was there said that “no obligations were assumed by the Pennsylvania company other than are expressed in the contract between the original contracting parties,” which of course included releases for right of way on record according to their written terms, but did not include “the parol agreement to provide a pass,” which was not and could not be assigned. That was not a controversy between the party who was entitled to the transportation and the railroad company that agreed to give it, as is the case in the controversy here pending. It was a contest in which the court was asked to determine which railroad company must bear the burden. In the present case no such question arises because the contract is in writing and the contract is between the street railway company that made it, its successors and assigns, and a party for whose benefit the privilege was granted. The appellee company is directly bound by the terms of the contract just as much as the original company which made it. The question of ownership and title to the residence in which the family resided is of no moment in this controversy. The right to demand free transportation and free current in no way depended upon the title to the property where the family resided. This was a personal privilege and not a property right. It was not a charge upon the land conveyed nor was it an interest running with the land. It had nothing to do with the title to the residence and therefore the cases cited by the learned counsel for appellee about conditions and limitations in grants of land have no application. It is our conclusion upon the facts gathered from the record that appellant is entitled to the relief sought and that the court below erred in holding that the obligation of the contract had been terminated so that the appellee company had the right to declare a forfeiture.

Decree reversed, bill reinstated and record remitted with direction to the court below to ascertain the facts necessary to properly dispose of the case and then make such order in accordance with the views expressed in this opinion as will protect the rights of the parties. Costs to be paid by appellee.


text:
    Myers v. Consumers’ Coal Company.

      Equity — Findings of facts — Review—Appeals.
    The appellate court will not interfere with a chancellor’s findings of facts made on sufficient evidence unless he is convicted of clear and manifest error.
    Argued April 11, 1910.
    Appeal, No. 176, Jan. T., 1909, by plaintiffs, from decree of C. P. Luzerne Co., March T., 1900, No. 2, dismissing bill in equity in case of E. Oscar Myers et al. v. The Consumers’ Coal Company et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity. See 212 Pa. 193.

      May 24, 1910:

      Error assigned was decree dismissing the bill.

      George R. Bedford, Alexander Famham, S. J. Strauss and Hon. Edmund W. Burke, for appellants.

      Henry W. Palmer, Frank W. Wheaton and Felix Ansart, for appellees.
   Per Curiam,

When this case was here before, 212 Pa. 193, it was on an appeal from the decision of a single judge and not from the decree of the court. After pointing out the error in the procedure, and holding that the appeal should have been from the decree of the court in banc, we formally sustained one of the assignments, and sent the case back to the trial court with the suggestion that the “rulings (of the court) may not be in accord with those of the single judge who entered this decree, after a trial had in accordance with the views expressed above.” The court below construed our judgment “as a direction that another trial should be had,” and, with some additional testimony, the case was again heard by the chancellor and the court in banc from whose decree this appeal was taken. Every question of fact and law has been most carefully considered by the court and we are not prepared to say that, on the evidence submitted in the case, it has committed reversible error. Had we been sitting as the chancellor we might have found some of the facts differently, but that does not warrant a reversal. Under the well-established rule, we will not interfere with a chancellor’s findings made on sufficient evidence unless he is convicted of clear and manifest error. The record does not disclose such error, and, hence, the assignments must be overruled and the appeal be dismissed.

Decree affirmed.


author: Mr. Justice Stewart,

text:
    Patton’s Election.

      Election law — Contested election — Costs—Bo.nd for costs — Act of April 28, 1899, P. L. 118 — Constitutional law — Title of act — Bill of rights — Special legislation — Local legislation.

    1. The Act of April 28, 1899, P. L. 118, entitled, “An Act to amend the ninth section of an act entitled, ‘An Act designating the several classes of contested elections in this commonwealth, and providing for the trial thereof,’ approved the nineteenth day of May A. D. 1874, providing that the costs in certain cases shall be placed on the petitioners,” is sufficiently comprehensive in title to include the provision in the act requiring a bond to be entered with sureties for the payment of costs, as a condition of contest.
    2. The Act of April 28, 1899, P. L. 118, in so far as it provides for the entering of a bond to secure the payment of costs in an election contest, does not violate that portion of the bill of rights which directs that “all courts shall be open, and every man for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”
    3. The Act of April 28, 1899, P. L. 118, requiring a bond to be filed in an election contest does not offend against art. Ill, sec. 7, of the constitution of Pennsylvania which prohibits the enactment of any local or special law regulating the affairs of counties, cities, townships, etc.
    Argued May 11, 1910.
    Appeal, No. 83, Oct. T., 1910, by W. A. McAdoo, from order of C. P. Armstrong Co., March T., 1910, No. 157, dismissing petition in election contest In re Election of Willis D. Patton, President Judge of the Thirty-Third Judicial District.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition in election contest. Before Galbraith, P. J., Wilson, P. J., and Telford, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing the petition.

      S. S. Mehard, with him R. L. Ralston and Calvin Reyburn, for appellant.
    The Act of Assembly of April 28, 1899, P. L. 118, impinges upon and is in conflict with the fourteenth amendment to the constitution of the United States, which provides that no state shall deny to any person within its jurisdiction the equal protection of the laws: Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. Repr. 357); Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. S. 232 (10 Sup. Ct. Repr. 533); Durkee v. Janesville, 28 Wis. 464; Soon King v. Crowley, 113 U. S. 703 (5 Sup. Ct. Repr. 730); Connolly v. Union Sewer Pipe Co., 184 U. S. 540 (22 Sup. Ct. Repr. 431); Limestone Co. v. Fagley, 187 Pa. 193; Com. v. Zacharias, 181 Pa. 126; Ayars’ App., 122 Pa. 266.
    The act is unconstitutional and void in that it offends against art. VIII, sec. 17, of the constitution of Pennsylvania: Lavery v. Com., 101 Pa. 560; Com. v. Phila. County Commissioners, 8 S. & R. 151; McKeehan v. Com., 3 Pa. 151; Com. v. Johnson, 5 S. & R. 195; Irvin v. Northumberland County Commissioners, 1 S. & R. 505.
    The act offends against and violates the declaration or bill of rights: Sharpless v. Mayor, etc., of Phila., 21 Pa. 147; Wyoming St., Pittsburg, 137 Pa. 494; Schade v. Luppert, 17 Pa. C. C. Rep. 460; Jack v. M’Clure, 26 Pa. C. C. Rep. 59; Lutz v. Heasley, 12 Pa. Dist. Rep. 139.
    The act offends against art. I, sec. 1, of the constitution, which provides and declares “ . that all men are possessed of certain inherent, inalienable rights,” one of these is the right to acquire and possess property: Mahon v. Luzerne County, 197 Pa. 1; Rutherford’s Case, 72 Pa. 85.
    The act is unconstitutional and void in that it offends against art. Ill, sec. 7, of the constitution of Pennsylvania: Frost v. Cherry, 122 Pa. 417; Com. v. Reynolds, 137 Pa. 389; McCarthy v. Com., 110 Pa. 243; Ayars’ App., 122 Pa. 266; Melvin v. Summerville, 210 Pa. 41; In re Contested Election of O’Neil, 98 Pa. 461; Com. v. Dumbauld, 97 Pa. 293; Leib v. Com., 9 Watts, 200; Godcharles v. Wigeman, 113 Pa. 431; Com. v. Zacharias, 181 Pa. 126; Sayre Boro. v. Phillips, 148 Pa. 482; Durkin v. Coal Co., 171 Pa. 193; Montgomery v. Com., 91 Pa. 125; Morrison v. Bachert, 112 Pa. 322.
    May 24, 1910:

      Floy C. Jones, with him J. H. Painter, H. N. Snyder and E. O. Golden, for appellee.
    The fact that the act has stood upon the statute books for many years without challenge is strongly persuasive that the act is constitutional: Lavery v. Com., 101 Pa. 560; Com. v. Gilligan, 195 Pa. 504; Rose v. Beaver County, 204 Pa. 372.
    The act is constitutional: Com. v. Keystone Benefit Assn., 171 Pa. 465; Barber’s Contested Election, 86 Pa. 392; Thomas’s Election, 198 Pa. 546; Philadelphia v. Ry. Co., 142 Pa. 484; Yoho v. Allegheny County, 218 Pa. 401; In re Pottstown Boro., 117 Pa. 538; Millvale Boro. v. Evergreen Ry. Co., 131 Pa. 1; Com. v. Morgan, 178 Pa. 198; Lyon v. Dunn, 196 Pa. 90; In re Contested. Election of Mathews, 92 Pa. 138; Lower Augusta v. Selinsgrove, 64 Pa. 166; Hoffman v. R. R. Co., 143 Pa. 503; Vose v. Cockcroft, 44 N. Y. 415; Com. v. Moir, 199 Pa. 534; Pulaski Twp. Poor Dist. v. Lawrence County, 222 Pa. 358; Thirty-eighth Ward Election, 35 Pa. Superior Ct. 256; Field v. Barber Asphalt Paving Co., 194 U. S. 618 (24 Sup. Ct. Repr. 784).
   Opinion by

Mr. Justice Stewart,

Following the general election held November 2, 1909, the Honorable Willis D. Patton was duly returned as elected to the office of President Judge of the thirty-third judicial district, composed of the county of Armstrong. A petition to contest his election, signed by the requisite number of electors of the district, was duly filed with the Attorney General, and was by him transmitted to the Governor, who thereupon commissioned a court, appointed under the requirements of the law “to proceed to hear and determine the complaint of the said parties.” The court convened January 27, 1910. The petition to contest having been presented, the court ordered that the bond required by the Act of April 28, 1899, P. L. 118, conditioned on the payment of the costs by contestants in case they were adjudged to pay the same, should be in the sum of $20,000, and filed within ten days thereafter. Meanwhile, W. A. McAdoo, this petitioner, on his own behalf, and on behalf of other petitioners, presented his petition praying that the order with respect to the bond with sureties be vacated, on the ground that the act of assembly requiring such bond is unconstitutional and therefore void. After hearing, February 10, the court dismissed the petition. No bond having been filed within the statutory period, the petition to contest was accordingly dismissed. This appeal results. Several constitutional objections to the act are urged. The first to be considered is, that the provision requiring a bond to secure payment of costs, is not adequately expressed in the title of the act, and in this particular the act offends against art. Ill, sec. 3, of the constitution. The act is entitled, “An Act to amend the ninth section of an act entitled, ‘An Act designating the several classes of contested elections in this Commonwealth and providing for the trial thereof,’ approved the 19th day of May, A. D. 1874, P. L. 208, providing that the costs in certain cases shall be placed on the petitioners.” An examination of the original ninth section will show that it deals exclusively with the matter of costs, and specifically provides, that “if the court or judge shall decide that the complaint is without probable cause, the petitioners and every of them shall be jointly and severally liable for all the costs, and that the same may be collected as debts of like amount are by law collectible, or payment thereof may be enforced by attachment.” The change introduced by the amended act is the requirement of a bond with sureties for payment of costs, as a condition of contest. True it is that this particular change does not appear in the title to the amending act; but was it necessary that it should? The act of 1874, passed in obedience to the constitution directing that the general assembly shall “by general law” designate the courts and judges by whom the several classes of election contests shall be-tried, and regulate the manner of trial and all matters incident thereto, provides a general scheme or system ■for the determination of all such contests; it classifies them; distinguishes between them with respect to the tribunal before which they are to be heard; provides how .the proceedings are to be instituted, regulates the manner of trial, and makes provision for the costs in each case. The sufficiency of the title to this act cannot be questioned; it reads, “An Act designating the several classes of contested elections in this Commonwealth and providing for the trial thereof.” Had the provision requiring bond for the securing costs appeared in this original act, it could not have occurred to anyone that it was not embraced in the title, or that it was not there sufficiently expressed. As was said in Taggart v. Com., 102 Pa. 354, the requirements of the constitution, with respect to the sufficiency of title, are fully met when the title is an epitome of the section of the constitution to which it refers, and the legislation relates and is cognate to the purpose stated in the title. It is not required that the title should be a complete index of the contents of the act. If this particular provision with respect to the bond could have been sustained, had it appeared in the original act it follows that the amending act is not open to the objection urged. We have held in a number of cases, notably in State Line & Juniata R. R. Co.’s App., 77 Pa. 429, and In re Pottstown Borough, 117 Pa. 538, that in the case of a supplement, when the subject of an original act is sufficiently expressed in its title, and when the provisions of the supplement are germane to the subject of the original, the true rule is that the subject of the supplement is covered by a title which contains a specific reference to the original by its title, and declares it to be a supplement thereto. It is evident that all that was intended by the title to the present amendment, was to direct attention to the original act to which it was supplementary. The words “providing that the costs in certain cases shall be placed on the petitioner,” were not meant to indicate any change by the amendment, but only what was the particular subject of the ninth section of the original act, distinguishing it from the other sections.

No other objection than the one just considered was made in the court below, and we might end the discussion here. But public interests are to be considered when the issue involves so much that directly concerns the people at large. The administering distributive justice is something which our people have always prized as the chief end of government. The judicial office is so closely related to this function that they have sought to guard it with jealous care. The degree of confidence which the public yields to our judicial tribunals measures very largely their efficiency and usefulness. Anything that tends to subtract in any way from public confidence in them, is to be avoided. Where doubts prevail as to the constitutional and legal right of an incumbent to exercise the high function of the judicial office, to a greater or less extent confidence is withheld. It is this consideration which makes us willing to pursue the discussion further.

While the act of 1874 as amended is attacked from various points, the one provision to which all attacks are directed, is that requiring a bond with sureties for the payment of costs. First, it is argued that it offends against the bill of rights which provides that “All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation, shall have remedy by .due course of law, and right and justice administered without sale, denial or delay.” It is insisted that the act is a practical denial of free and open access to the courts. The argument in support of this position proceeds on the assumption that the individual who claims to have received a majority of the votes cast at the election, has such a right iu the office as is within the contemplation of the provision referred to. This assumption is unwarranted. The individual so claiming is invested with no right that is not common to all citizens. He is not distinguished as a contestant from other petitioners, either in the constitution or the laws passed thereunder. The purpose of the constitution, in this connection, is not to defend or protect any individual right to office, but to secure a correct and honest expression of the public choice. The act declares a public policy in' connection with the settlement of disputes about elections solely in the interest of the public. It interferes with no vested rights. As well argue that the provision which allows a contest only on petition of fifty qualified electors of the district, is a denial of free access to the court. It is not to be supposed that it was within constitutional intendment that the individual elector was to have the right to institute a contest to enforce a supposed right of his own. In conferring upon the legislature the right to regulate the matter of trial and all matters incident thereto, the power was given to prescribe such reasonable conditions for the exercise of the right of contest, as would protect the public from the constant and continued strife which would result were the right an individual one. Courts would have little time for anything besides contested elections, were every disappointed candidate given the right upon his own initiative to institute such contest. In view of such fact the act might well be defended as a proper exercise of the general power inherent in all governments to provide for the safety and good order of society; but it needs no such vindication.

Again, it is urged that the act offends against art. III, sec., 7, which prohibits the enactment of any local or special law regulating the affairs of counties, cities, townships, etc., inasmuch as the elections affected by the act are “affairs” of the counties or districts where the officers are to be elected, and where they are to exercise their office. The contention goes no further than to assail the provision with respect to the placing of the costs. Giving to the word “affairs” the broad and liberal construction contended for, and bringing within its meaning the elections for public offices in the county or district, it is not easily apparent how the act is either local or special. Its provisions apply throughout the commonwealth, and to every proceeding where the contest is in regard to certain designated offices. The real complaint here is not so much that the act is local, but that it is discriminatory in character to such an extent as to make it in effect special legislation. As required by the constitution the legislature in the act of 1874 classified election contests, and designated the courts and judges by whom the several classes were to be tried. The classes are (l) governor and lieutenant governor, (2) electors of president and vice president of the United States and all officers of this commonwealth required to be elected by the qualified electors of the state at large, (3) the judges of the several courts of record, learned in the law, other than judges of the Supreme Court, and (4) all other officers, excepting members of the general assembly, whether elected by the qualified voters of counties, cities, townships, boroughs, wards, school districts, or any other division of the state. The provision in the amended act requiring bonds for security of costs is made to apply not generally to all these classes, but only to contested elections of presidents or additional law judges of counties, borough, township, municipal offices, or school directors, or school comptrollers. Herein is the discrimination complained of. The exemption allowed petitioners in contesting an election for the office of associate judge, which in the act is classified with the office of president judge and county officers generally, is noticeable. Nothing can be gathered from any expression in the act itself as to the legislative purpose in relieving them from the bond requirement. It does not follow from this, however, that the act is to be condemned. The question is not what the purpose was, but whether the provision is special in the constitutional sense. If we admit that the act is one regulating the “affairs” of counties, for the reasons urged, which are far from convincing to us, and it is therefore to be judged by the constitutional provision which prohibits special legislation in regard thereto, the question remains, how and where does it offend? That it is special, if we have regard simply to the classification adopted by the legislature in the act, is unquestionably true. But we must not lose sight of the purpose of this classification. The constitution having directed that the determination of contested elections should be by the courts of law, committed to the legislature the duty of designating the courts and judges by whom the several classes of contests should be tried. This the act in question does. Can it be said that under the power given the legislature to regulate the manner of trial, and all matters incident thereto, it may not distinguish the mode of procedure and conditions of contest, having regard to the nature and character of the offices, between those contests which for purpose of convenience it has associated in the same class? The primary, if not sole purpose of the constitutional provision, was to send all election contests into the courts of law. The power of the legislature to regulate the trial of each is subject to no limitations, except that it may not be employed to defeat the provision itself. The classification adopted was not to defeat, but to give effect to the constitutional requirement, and is a perfectly natural and reasonable classification, having no other purpose than to indicate the appropriate court for each of the several contests. It was not made to furnish a basis for the legislation that was to follow with respect to regulation of trial and the matters incident thereto. Except as legislation is allowed with respect to the particular classified subject, not touching the consideration or purpose of its classification, either much necessary legislation must be halted, or classification must necessarily be a matter of almost infinite detail. The constitution requires neither. The distinction pointed out in the act is no offense against its own classification. For still more obvious reasons it does no violence against the provision of local legislation. The act applies throughout the commonwealth, and is applicable to each and every county. If it imposes unwise regulations governing election contests, either by making some too easily entered upon, or by making others too difficult to conduct, still it is a matter of regulation within legislative discretion; and if correction be required there is but one way to obtain it, namely, through popular demand addressed to the lawmaking power.

Other objections have been urged, but in what we have said all have been sufficiently answered. Our conclusion is that the petitioners having failed to give bond in the amount required by the court, within the statutory period, for securing the payment of costs, in the event their being adjudged liable the petition for contest was properly dismissed. The appeal from that decision and decree is dismissed at the costs of the appellant.