text:
    Schively, Appellant, v. Radell.

      Mechanics’, liens — Liens—Dwelling houses — Garages—Adjoining lots —Mechanic’s lien Act of June 4, 1901, P. L. 431.
    1. Where the owner of two adjoining lots, both fronting on a public road, erects under a contract a house on one lot, and- under a subsequent contract, a garage on the other lot, said contracts being separate contracts, and treated separately for all purposes, and where the general contractor before the contract for the garage is contemplated, submits to a subcontractor a list of materials to be used in the house, on which the subcontractor gives a lump bid which is accepted, and subsequently the general contractor obtains the contract for the garage and submits another list of materials to the subcontractor for use in the garage at the former prices which is accepted, such subcontractor cannot file one lien against both structures erected on the two lots, and sees. 2, 3 and 12 of the mechanic’s lien Act of June 4, 1901, P. L. 431, do not support such a lien.
    2. There is nothing in sec. 12 of the mechanic’s lien Act of June 4, 1901, P. L. 431, which provides either in express terms or by implication that a single claim may be filed against two structures for labor or materials furnished under separate and distinct contracts.
    3. The word “plant” is used in sec. 12 of the mechanic’s lien act of 1901 in its commercial meaning and is to be taken in its ordinary sense of property owned or used in carrying on some trade or business.
    4. The common law having given no lien for labor or materials in the erection of a building, the right to file a claim is entirely statutory, and in order to avail himself of it a party must comply strictly with the terms of the statute conferring the right.
    Argued Feb. 1, 1910.
    Appeal, No. 391,
    Jan. T., 1909, by plaintiff, from judgment of C. P. Montgomery Co., Oct. T., 1908, No. 17, for defendant non obstante veredicto in case of Samuel L. ScMvely v. Frederick W. Radell, Owner or Reputed Owner, and Phoenix Wood Working Company, Contractor.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Weand, J.
    Judgment by default against Phoenix Wood Working Company, and judgment non obstante veredicto for Frederick W. Radell.
    The facts appear in the opinion of the Supreme Court.

      Error assigned, was in entering judgment for defendant non obstante veredicto.

      Samuel H. High, with him John Faber Miller, for appellant.
    — If the understanding between the plaintiff and the company was as plaintiff alleged and testified, and as the jury found, it is sufficiently set forth in the notice: Este v. Penna. R. R. Co:, 27 Pa. Superior Ct. 521; Day v. Penna. R. R. Co., 224 Pa. 193; B. & L. Assn. v. Connor, 216 Pa. 543.

      Wayne P. Rambo, with him Franklin L. Wright and Nicholas H. Larzelere, for appellee.
    — The subcontractor must ascertain the contractual relation between the owner and the contractor: Yearsley v. Flanigen, 22 Pa. 489; Brown v. Cowan, 110 Pa. 588; Schroeder v. Galland, 134 Pa. 277; Bevan v. Thackara, 143 Pa. 182.
    The importance of the character of the contract between owner and contractor, and the necessity of specification of materials furnished different operations appear in Miller v. Heath, 22 Pa. Superior Ct. 313.
    There is no statutory authority for the filing of one lien against two structures erected under different contracts on different lots. A.mechanic’s lien is purely statutory, and the claimant must show statutory authority for his lien': Knelly v. Horwarth, 208 Pa. 487; Todd v. Gernert, 223 Pa. 103; Wharton v. Investment Co., 180 Pa. 168.
   Opinion by

Mr. Justice Mestrezat,

March 14, 1910:

This is a scire facias on a mechanic’s lien filed by a subcontractor against two structures erected on the liened premises. The material and controlling facts of the case require us to affirm the judgment for defendant entered by the trial court.

Radell, the defendant, became the owner, by deed recorded May 20, 1907, of a lot or piece of ground, “known and designated as lots Nos. eight and thirty-nine on a certain plan of lots of Glenside Highlands,” in Abington township, Montgomery county. The two lots were adjacent and were situated at the corner of Roberts and Lynwood avenues in the village of Glenside.

On August 10, 1907, Radell entered into a written contract with the Phoenix Wood Working Company for the erection of a dwelling house “on a certain lot or piece of ground situated at the corner of Roberts and Lynwood Avenues in Glenside, County of Montgomery, and State of Pennsylvania;” and a few days thereafter work was begun on the building. The contract was filed of record in the prothonotary’s office of Montgomery cohnty on August 14,1907.

Radell entered into a written contract, October 10, 1907, with the Phcenix Wood Working Company for the erection of a stone and frame garage ón a lot or piece of ground described as in the former contract. Seliively, the plaintiff, furnished lumber to the general contractor for both the residence and the garage, and filed a claim against the two buildings or structures to enforce payment of a balance of $1,387.82, which he alleges to be due and unpaid. The claim is filed against the house and the garage, describing each separately. The lien avers the garage to be forty feet from the house and that “the real estate, upon which the said buildings or structures have been erected, consists of two certain lots or pieces of land, situate in said village of Glen-side, in the township of Abington, said county, being lots Nos. 8 and 39 on a plan of lots known as the ‘Glenside Highlands,’ which plan is recorded in the office for the recording of deeds, in and for said county, in deed book, No. 456, page 500. Said lots taken together are situate on the southeasterly side of Roberts Avenue, at the intersection of the same with the southwesterly side of Lynwood Avenue, with a front on the said side of Roberts Avenue of one hundred and seventy-eight feet ten and three-eighths inches and with a front or depth on the said side of Lynwood Avenue of one hundred and thirty-six feet three and one-fourth inches.” The materials were furnished between August 23, 1907, and December 12, 1907. Schively gave a written notice to the owner, March 11, 1908, of his intention to file a lien, and the lien was filed May 14, 1908.

The owner contends that the lumber was furnished by the plaintiff to the contractor under two separate and distinct contracts, under one, for the dwelling house, and under the other, for the garage. The learned court below found this fact in accordance with the owner’s contention. The plaintiff denies there were two contracts under which the lumber was furnished to the contractor, and maintains that “there was but one understanding and that all the materials whether for the house or the garage were furnished in pursuance of it.” Of course, if this was an open question and there was testimony to support the contention on both sides, the question should be submitted for the determination of a jury. We think, however, that under the uncontradicted evidence the owner’s contention must be sustained, and that if the question had been submitted to a jury the court could not have permitted a different finding. The plaintiff’s own testimony conclusively shows that the lumber was furnished for the buildings under two separate and distinct “arrangements” or contracts.

The contract for the house was let on August 10,1907. It is admitted that the Phoenix Wood Working Company, the general contractor, submitted to the plaintiff a list of the lumber which would be required or desired for the house. The plaintiff bid on this list and on August 19,1907, addressed a letter to the Phoenix Company in which he said: “I will deliver the lumber to Glenside as per your list for $1,462.” This offer was accepted and the lumber for the house was delivered in pursuance of it. ' Plaintiff’s bookkeeper and manager testified that he made a specific contract with the Phoenix company for the lumber which he was to ship to the house for $1,462. The plaintiff admits in his testimony that the written offer to furnish the lumber for the house was accepted, and that in delivering the lumber the list furnished by the Phoenix company was adhered to as nearly as could be. It is, therefore, manifest from the plaintiff’s own testimony, apart from the corroborative testimony of the defendant, that there was a contract between the plaintiff and the contractor by which, for the consideration óf a lump sum, the former agreed to furnish lumber for the house according to the list submitted to the plaintiff by the contractor.

We think it equally clear that there was another and separate “arrangement” or contract between the plaintiff and the contractor by which the former was to furnish to the latter the lumber for the garage. The contract for erecting the garage, it will be observed, was not made until October 10, 1907, two months after the contract for the erection of the dwelling house. During the progress of the work on the house and prior to the contract for the construction of the garage, the contractor wrote the plaintiff a letter relative to the material used in the house which contained, inter alia, the following: “We áre figuring on a garage for Mr. Radell which will require about 8,000 more of them (shingles) besides other lumber. Will send you list if we secure the contract.” At that time it is apparent that the Phcenix company had not given the plaintiff an order for the lumber or entered into any contract with him to furnish the lumber for the garage. In fact, the Phcenix company could not have done so as it did not have a contract, at the time, with the owner for the erection of the garage. The letter, however, advised the plaintiff that in the event of the Phcenix company securing the contract for the construction of the garage, it would submit another proposition to him for furnishing lumber for that building. This was done, and on October 10,1907, the date of the contract between the Phoenix company and the owner for the construction of the garage, the company submitted a list of lumber to the plaintiff who agreed to furnish it on the same basis as that upon which the estimate for the house had been made. The plaintiff’s bookkeeper and manager testified that he copied in his books the list of lumber submitted by the Phcenix company and marked the prices that were to be paid the plaintiff by the company which were the same as those charged in the contract for the house. He says that when the list was submitted he informed the parties submitting it that the prices would be the same as those charged for the lumber furnished for the house. There is no dispute as to these facts. They appear from the plaintiff’s own testimony and hence he is not in a position to controvert them. Conceding them to be true, an offer was made to furnish certain lumber at a certain price which was accepted, This constituted a contract between the Phoenix company and the plaintiff, and was entirely separate and distinct from the contract under which the plaintiff furnished lumber for the erection of the dwelling house. There may have been some deviation from the list that was submitted by the contractor but, as the plaintiff himself testified, it was adhered to as nearly as it could be. The change in the character and prices of lumber contained in the list submitted by the Phcenix company to the plaintiff from those actually furnished by the plaintiff for the garage does not destroy the separate nature of the contract for the material which went into the building. By the plaintiff’s own testimony, therefore, there was a contract between him and the Phcenix company by which he was to furnish the lumber for the garage, and it was separate and distinct from the contract by which he was to furnish material for the dwelling house.

It is contended by the plaintiff that the dwelling house and garage were erected upon the same lot of ground, but this is denied by the owner. It will be observed that in the conveyance of the premises to the present owner, the property is “known and designated as lots Nos. eight and thirty-nine on a certain plan of lots of Glenside Highlands.” It is true as claimed by the plaintiff, that there are certain building restrictions and conditions in the owner’s deed, one of which prevents the erection of more than one dwelling house on the two lots. It is also true as suggested by the plaintiff, that, as provided in the contract, each structure was to be erected “ on a certain lot or piece of ground situated at the corner of Roberts and Lynwood Avenues in Glenside.” If the plaintiff had liened the premises as thus described, it might have raised the question whether the premises consisted of one or two lots. He did not do this, but in his lien describes the premises as “two certain lots or pieces of land, situate in said village at Glenside, in the township of Abington, said county, being lots Nos. eight and thirty-nine on a plan of lots known as the ‘Glenside Highlands.’” From the lien itself, therefore, it appears that the plaintiff treated the premises on which the two structures were erected as two separate lots and not as a single lot or piece of ground. From the size of the lots and the distance the buildings were apart, it appears that they could not have been erected on the same lot but necessarily on different lots.

The question of law involved in the case arises, therefore, as stated by the learned trial judge, upon the following facts: When the owner of two adjoining lots, both fronting on a public road, erects under a contract dated August 10, 1907, a house on one lot, and under another contract dated October 10, 1907, a garage on the other lot, said contracts being separate contracts, and treated separately for all purposes, and where the general contractor before the contract for the garage'is contemplated, submits to a plaintiff, a subcontractor, a list of materials to be used in the house, on which the subcontractor gives a lump bid which is accepted, and subsequently the general contractor obtains the contract for the garage and submits another list of materials to the subcontractor for use in the garage at the former prices which is accepted, can the plaintiff, a subcontractor, file one lien against both structures erected on the two lots?

The plaintiff relies on secs. 2, 3, and 12 of the Mechanic’s Lien Act of June 4, 1901, P. L. 431, to support his lien. We, however, are unable to see that these sections of the act permit him to file a claim against two separate structures under the facts of this case. Section 2 defines what shall be subject to a lien and provides that “ every structure or other improvement, and the curtilage appurtenant thereto, shall be subject to a lien for the payment of all debts due to the contractor or subcontractor in the erection and construction or removal thereof, .... and of the outhouses, sidewalks, yards, fences, walls, or other enclosure belonging to said structure or other improvement, etc.” There is no difficulty in the construction of this section of the act. It permits a claim to be filed against a single structure for the payment of any debts due to the contractor or subcontractor for the erection of the structure or for the erection of any outhouses, etc. It seems, however, to be claimed by the plaintiff that sec. 2 taken in connection with sec. 3 authorizes a single claim against two structures when one of the two structures is an outhouse or other building on the curtilage appurtenant to the structure, but this contention is not supported by either section or both sections construed together. Section 2, as observed, provides what shall be subject to a lien and for what debts due the contractor or subcontractor. Section 3 simply defines what the curtilage shall be and declares that it shall include “other structures whether newly erected or altered, or changed for such purposes, and forming part of a single business or residential plant,” etc. It does not define what shall be the subject of a lien or make subject to a lien what is not determined to be subject to a lien by sec. 2. Its purpose is to define specifically the curtilage which shall be considered appurtenant to the structure which sec. 2 makes subject to the lien.

Section 12 provides, inter alia, that “a single claim may be filed against more than one structure or other improvement if they are all intended to form part of one plant.” That provision of the section, however, does not, in terms nor inferentially, authorize the filing of a single claim against two or more structures erected under two separate contracts. The provision contemplates that the two or more structures against which a single claim may be filed shall have been erected in pursuance of a single contract and as part, of one plant. It does not expressly provide that a single claim arising under more than one contract may be filed against two structures, and there is nothing in the act to warrant the implication that such was the legislative intent. Had the general contractor for the house been a different person from the general contractor for the garage, the plaintiff certainly could not have filed one claim against the two buildings. Here, we have two separate and distinct contracts, of different dates, between the general contractor and the owner, and also two separate contracts of different dates, under which the plaintiff furnished the material to the general contractor for which he claims the right to a lien. In addition to these facts, the claim is filed against two buildings not averred to form a part of one plant, and erected on two different lots of ground. Again, a dwelling house and a garage cannot be considered as parts of one plant in contemplation of this provision of the section. It does not, like sec. 3, recognize a “residential” plant, but permits only a single claim to be filed against two or more structures when part of a business plant. The word “plant” is used in this section in its commercial sense, as we have held, and is to be given its ordinary sense of property owned or used in carrying on some trade or business: Todd v. Gernert, 223 Pa. 103.

The plaintiff contends, however, that another provision of sec. 12 permits a single claim to be filed against two structures when the materials are furnished under more than one contract. We do not, however, agree with that construction of the provision in question. It provides: “If the labor or materials be furnished continuously in the erection and construction .... of a structure or other improvement, the claimant may file a single claim, though furnished under more than one contraed, with the same effect as if furnished continuously under a single contract.” It will be observed that the provision deals with “a structure or other improvement,” which may be the subject of a lien for labor or materials furnished continuously under more than one contract. It does not provide in terms or by implication that a single claim may be filed against two structures for labor or materials furnished under more than one contract, or when, as in this case, they are furnished to the two structures under separate and distinct contracts. Had the legislature intended to give the right to file a single claim against two or more structures erected under more than one contract for labor or materials furnished continuously in their erection, it.would have said so, and not conferred the right to file the claim against “ a structure or other improvement.”

The common law gave no lien for labor or materials in the erection of a building. The right to file a claim is entirely statutory, and in order to avail himself of it a party must comply strictly with the terms of the statute conferring the right. Nothing is to be presumed in favor of the lien. Here, the owner had provided for the erection of the two structures by separate and distinct contracts; and it was the duty of the subcontractor to know, and he did know, the relation existing between the owner and the contractor and under what contracts the buildings were being erected, and he should have dealt with the contractor in the light of this information. Had he done so, he would have enforced his claims arising under different contracts by filing a claim against each building for the materials which went into it.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Brennan, Appellant, v. Paxson.

      Sheriff’s sale — Execution—Assent to breach — Practice, C. P.

    1. A successful bidder at a sheriff’s sale of real estate who is deprived of his purchase by reason of noneompliance with the terms of payment, stated to be due to an alleged verbal extension of the time of payment by the sheriff, cannot recover in damages against the sheriff where it appears that, after his tender of the balance due was refused, as being too late, he gave the sheriff no notice of an intention to hold him to the original agreement, that he made no application to the court to permit the sheriff’s return to be amended and the sale confirmed, that he subsequently became a bidder at a later resale of the property, and that he took no steps to enforce his alleged rights as a purchaser until after the second sale had taken place and the deed made to the purchaser; such ’ evidence showing that both parties treated the sale as rescinded by consent.
    2. Upon exception taken to a sheriff’s sale on the sheriff’s offering to acknowledge the deed, the court will hear everything that can be urged against the regularity of the proceedings, and the conduct of the sheriff, the plaintiff in the suit, and the purchaser; and receive or refuse the acknowledgment of the deed according to the proofs made before them.
    Argued Feb. 8, 1910.
    Appeal, No. 333,
    Jan. T., 1909, by plaintiff, from judgment of C. P. Bucks Co., Sept. T., 1907, No. 15, on verdict for defendant in case of Edwin V. M. Brennan v. Albert S. Paxson.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass for damages for refusal of sheriff to convey.
    Facts appear in the opinion of the Supreme Court.

      Error assigned was in directing verdict for defendant.

      John L. DuBois, for appellant.
    — There can be no doubt of a sheriff’s right to extend the time of payment beyond the return day: Rhodes v. Barnett, 196 Pa. 429; Holdship v. Doran, 2 P. & W. 9.
    The sheriff in making a false return made hiinself liable in damages: Phila. Saving Fund Society v. Purcell, 24 Pa. Superior Ct. 205.

      It was error to direct a verdict for defendant: Menner v. Canal Co., 7 Pa. Superior Ct. 135; Kelly v. McGehee, 137 Pa. 443; Coble v. Zook, 6 Pa. Superior Ct. 597; Prindle v. Kountz, 15 Pa. Superior Ct. 258; Philpott v. Railroad Co., 175 Pa. 570.

      William C. Ryan, for appellee.
    — Both parties treated the sale as rescinded by consent: Girard Life Ins. Co. v. Young, 8 Phila. 16; Gaskill v. Morris, 7 W. & S. 32; Hartman v. Pemberton, 24 Pa. Superior Ct. 222.
   Opinion by

Mr. Justice Potter,

March 14, 1910:

The plaintiff in this casé sought to recover damages from the defendant, who was the sheriff of Bucks county, for his alleged unlawful refusal to accept a tender of the balance of the purchase money, and to make a deed for certain property purchased by plaintiff, at sheriff’s sale. It appears from the evidence that the defendant, on April 12, 1907, under authority of a writ of levari facias, offered at public sale certain real estate, situated in Bensalem township, Bucks county; that plaintiff bid $9,000 for the property, being the highest bidder for the same; that the property was sold to him by defendant, and that he signed the conditions of sale, and paid to defendant as down money, the sum of $200. The conditions required that the balance of the purchase money should be paid on or before the return day of the writ, April 15, 1907. Plaintiff alleges that after the sale, he inquired of the sheriff if it was necessary to pay the money on the return day, and that the defendant replied that it was not, but that the money must be paid before plaintiff could get a deed. The money was not paid upon the return day, and the next day the sheriff returned the writ, setting forth the failure of the plaintiff to comply with the terms of the sale. Some ten days after the return day, plaintiff, through his attorney, made a tender of the balance of the purchase money to the sheriff, who refused to accept it, and said that he had returned the writ. Later an alias writ of levari facias was issued, the property was readvertised, and sold to another purchaser. The agent of the plaintiff attended the second sale and bid for the property. It does not appear that the plaintiff gave defendant any notice that he would hold him to the original contract of sale, or that he took any steps to enforce his alleged rights as a purchaser-until after the second sale had taken place, and the deed was made to the purchaser. Plaintiff relies entirely for his right to recover, upon the alleged verbal statement of the sheriff, that he need not pay the money upon the return day. But in his written acceptance of the conditions of sale, plaintiff agreed to pay the balance of the purchase money on or before the return day of the writ. Upon the trial, the court below gave binding instructions in favor of the defendant, and in his opinion refusing a new trial he ¿ave two reasons in support of his action. The first was, that the statements of the sheriff were of the most general character, and were not sufficient to justify the plaintiff in disregarding the written agreement to pay the balance of the purchase money on. or before the return day. But as to this we do not see that the evidence sustains the position taken by the trial judge. The testimony of plaintiff and his witness was, that in response to a question, the sheriff said that “it vyas not necessary to settle on Monday, but you won’t get your deed before you settle.” “It is not necessary (that the money be paid on Monday), you can have your time, but before you get a deed you will have to pay the money.” These assurances'can hardly be called general; they seem to us to be very specific. If the jury be- - lieved this testimony, they might very well have found that the plaintiff was mislead by the assurance of the defendant, that it was not necessary to pay the money on the return day; and they might have found a verdict against the sheriff for the damages sustained by plaintiff, by reason of the refusal of the sheriff to keep his oral agreement.

But the second reason set forth by the trial judge is more substantial. It is that “both parties, in so far as the evidence in this case shows, treated the sale as rescinded by consent.” Plaintiff made no tender of the purchase money himself, but sent his agent Scott, on April 25, to make the tender. Scott testified that, when he tendered the money, the sheriff said, “My, that is a big batch of money, I hate to refuse it, but I can’t take it.” Witness said, “You can’t take it?” The sheriff replied, “No, it is too late.” The witness said, “Well, Mr. Brennan seems to be out of property, and at this moment I am in that much money.” That was in substance all of the evidence for plaintiff upon that point. It was not shown that any notice was given the sheriff either by plaintiff or by his agent, Scott, that plaintiff would insist that the sale to him should be consummated or that he would hold the sheriff responsible in damages. He did not, so far as appears, request the sheriff to amend his return, and he made no application to the court to permit the return to be amended, and to confirm the sale to him. Scott merely said that plaintiff seemed to be out of the property, and plaintiff, by his failure to insist on what he now claims as his rights, and by his inaction, apparently acquiesced in the action of the sheriff. Further, when the property was again offered for sale under the alias writ, on May 24, a month later, Scott attended the sale and bid upon it, bidding up to' $9,000, the price at which plaintiff bought at the former sale. It was not until after this second sale, at which Scott was outbid for the property, and after the sheriff had acknowledged and delivered his deed to the purchaser, that the present suit was brought. Prior to that time no notice appears to have been given the sheriff that plaintiff had any claim whatever against him. Under the principle of the decision in Vastine v. Fury, 2 S. & R. 426, plaintiff might have petitioned the court for relief at any time before the deed to the purchaser at the second sale was acknowledged. Until that time, the court had entire control of the writ and of all the proceedings. In that case Justice Yeates said (p. 432): “Upon exception taken to a sheriff’s sale on the sheriff’s offering to acknowledge the deed, the court will hear everything that can be urged against the regularity of the proceedings, and the conduct of the sheriff, the plaintiff in the suit, and the purchaser; and receive or refuse the acknowledgment of the deed according to the proofs made before them. This is the proper period for persons interested in the sale to take advantage of mere irregularities.”

In the present case, as the trial judge says, if the plaintiff had shown to the court that owing to a misunderstanding, the money was not paid on the return day, the last day for its payment, the court would no doubt have permitted the sheriff to receive the money, and to make his return accordingly. But he did not avail himself of this remedy, and is therefore to be regarded as having acquiesced in the rescission of the first sale. Possibly the plaintiff preferred to take the chance of getting the property for less money at the second sale. He attended that sale, and bid the same price as before, but the property brought more money. At any rate, we see no reason to differ with the trial judge in his conclusion that the conduct of both parties indicated their intention and willingness to treat the first sale as rescinded.

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


author: Mr. Justice Mestrezat,

text:
    Citizens Electric Company, Appellant, v. Susquehanna Boom Company.

      Equity — Decree—Useless decree — Water rights — Boom companies— Dams — Corporations—Charter" powers — Easements—Actions on bonds— Eminent domain.

    1. A chancellor should not enter a decree which will injure the defendant and confer no advantage on the plaintiff.
    2. A decree in equity compelling a boom company to open the gates of a dam and permit water to pass through will not be made, where whatever water rights the company seeking the decree has, arise from a deed given in 1854 to its predecessor in title conveying a strip of land “for a mill race to convey water from the pond of the said parties of the first part to the mills designed to be erected by the said parties of the second part, and for no other purpose or use whatever,” .and the testimony shows that the mills in question were destroyed in 1889 and never rebuilt, and fails to show that the plaintiff company has any intention of erecting a mill which can be operated by water conveyed through the race and the openings in the defendant’s dam. Such a decree would be entirely useless and of no benefit to the plaintiff.
    3. Where a company’s charter authorizes it to erect and maintain a boom on a river, but confers no right to, or control over, the waters of the river other than those incidental to the maintenance of the boom, it can use the water for no other purpose nor grant authority to another to use it for any other purpose, and where by a supplement to its charter the company is required before proceeding to erect the dam to file a bond in court conditioned that the company will indemnify the landholders adjacent to the dam against all losses or damages of any nature whatsoever that may occur to their lands by reason of the construction of the dam, the company acquires its easement freed from the power of the adjacent owner to obtain payment otherwise than upon the bond, and if such owners have not availed themselves of the security afforded by the bond, they cannot compel the company, by a proceeding in equity, to open the gates of the dam and supply them with water.

      Equity — Findings of fact — Appeal.
    4. Unless manifest error has been committed by a court below in its finding of facts in an equity suit, such findings will not be set aside on appeal.

      Prescription — Adverse and permissive 'user.

      5. A right by prescription never arises from a permissive user.
    Argued Feb. 14, 1910.
    Appeal, No. 264,
    Jan. T., 1909, by plaintiff, from decree of C. P. Lycoming Co., June T., 1906, No. 1, dismissing bill in equity in case of The Citizens Electric Company v. The Susquehanna Boom Company.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity to compel the opening of the gates of a dam. Before Hart, P. J.
    The opinion of the Supreme Court states the facts.

      Error assigned was decree dismissing bill.

      John G. Reading, of Reading & Alien, and Ames & Hammond, for appellant.-
    — When one uses an easement whenever he sees fit without asking leave, or without objection, the use is adverse; and an adverse enjoyment for twenty-one years gives an undisputed title to the enjoyment: Strickler v. Todd, 10 S. & R. 63; Garrett v. Jackson, 20 Pa. 331; Pierce v. Cloud, 42 Pa. 102; Carter v. Tinicum Fishing Co., 77 Pa. 310.
    Where a right has been established, either by deed or by adverse user, that right cannot be lost except by deed or nonuser in analogy to the statute of limitations: Dyer v. Depui, 5 Whart. 584; Erb v. Brown, 69 Pa. 216; Bombaugh v. Miller, 82 Pa. 203.
    It is settled that a court of equity will interfere to restrain by injunction a trespass of a permanent nature: Masson’s App., 70 Pa. 26; Hacke’s App., 101 Pa. 245; Manbeck v. Jones, 190 Pa. 171; Sullivan v. Steel Co., 208 Pa. 540.
    .. Seth T. McCormick, for appellee.
    — The findings of the court will not be set aside if they appear to have been authorized by the evidence: Steinmeyer v. Seibert, 190 Pa. 471; Dilworth v. Kennedy, 201 Pa. 388.
    An uninterrupted exclusive use and enjoyment of the water in any particular way above twenty-one years affords a conclusive presumption of right in the party so enjoying it equal to prescription. The extent of this prescriptive right is measured, however, by the extent of the enjoyment and is confined to the right as exercised originally: Irving v. Media Boro., 10 Pa. Superior Ct. 132; Messinger’s App., 109 Pa. 285; Jones v. Crow, 32 Pa. 398.
    Mere permissive enjoyment of a privilege does not make adverse user: Turnpike Co. v. Piper, 77 Pa. 432; Susquehanna County v. Deans, 33 Pa. 131; Demuth v. Amweg, 90 Pa. 181; Bennett v. Biddle, 140 Pa. 396; Hudson v. Watson, 5 Pa. Superior Ct. 456; Pierce v. Barney, 209 Pa. 132; Zerbey v. Allen, 215 Pa. 383.
   Opinion by

Mr. Justice Mestrezat,

March 14, 1910:

An extended review of the several questions raised on this record is unnecessary. The learned trial judge has filed an exhaustive opinion in which he has found the facts and correctly stated the law applicable thereto. His opinion amply vindicates the correctness of the decree dismissing the bill.

The plaintiff company is the appellant and insists dhat the • court below erred in the findings of both fact and law, and its counsel undertake to point out these errors in their exhaustive brief. We have carefully examined the case, both as to the law and facts, and while we might have found some of the facts differently, had we been the sitting chancellor, we are not prepared to say that the learned judge of the court below committed manifest error in any of his findings. .There was sufficient evidence to warrant his findings of fact, and under pur well established rule, we cannot interfere and set them aside. The counsel for the appellant recognize this rule and frankly say that they “assume the burden of showing to this court that manifest error was committed by the court below in its findings of fact from the testimony in the case.” We are not convinced that the burden assumed by the appellant has been met, and hence must dispose of the case on the facts as they have been found by the learned chancellor in the court below.

Whatever water rights the plaintiff company may have arises from the grant contained in the deed from Sampson et al. to Bronson et al., dated April 11, 1854, and therein it is expressly provided as follows: “The said strip and piece of land is conveyed by the said party of the first part for a mill race to convey water from the pond of the said parties of the first part to mills designed to be erected by the said parties of the second part, and for no other purpose or use whatever.” The plaintiff, therefore, cannot use this strip of land conveyed to it for any other purpose than for conveying water to its mills, and the mills having been destroyed by the flood.of June 1, 1889, and never rebuilt, we are at a loss to see how the plaintiff is injuriously affected by the action of the defendant company in closing the gates in its dam and preventing the water from flowing through the race to the place where the mills formerly stood. The uncontradicted evidence shows that there has been no mill on the site of the former mills fed by water flowing through the gates of the defendant’s dam since 1889, and fails to show that the plaintiff company has any intention of erecting a mill which can be operated by water conveyed through this race and the openings in the defendant’s dam. As -the plaintiff cannot use the race for conveying water for any other purpose, it follows that a decree in its favor compelling the defendant to open the gates and permit the water to pass through the dam would be entirely useless and of no benefit, to .the plaintiff. A chancellor should not enter a decree which will injure the defendant and confer no advantage on the plaintiff. The learned court below correctly says: “When we come to consider the fact that the only avowed purpose of the plaintiff was the mere removing of the material placed in these openings so that the water might run through — not to operate a sawmill or anything else — but merely to exercise the right claimed by it of venting water through this dam, it does not seem to us as. though a court of equity should be expected to exercise the strong arm of the law in restraining an interference with any such apparently aimless act.”

The defendant’s original charter authorized the company to erect and maintain a boom in the Susquehanna river near Williamsport, but conferred no right to or control over the waters of the river other than those incidental to the maintenance of the boom. It could use the water for no other purpose nor grant authority to another to use it for any other purpose. The supplement to the charter authorizes the company to erect a dam across the river with certain -restrictions as to height, etc., but- conferred no other or greater authority as to the water and its use than the company possessed under the original charter. The supplement required the company before proceeding to erect the dam to file a bond in the common pleas of Lycoming county conditioned, inter alia, that the company would indemnify the landholders adjacent to the dam against all losses or damages of any nature whatsoever that might occur to their lands by reason of the construction of the dam. The bond in the designated sum was approved by the court and filed as required by the charter. The security having been given, the grasp of the owners upon their property was loosened and the easement acquired by the defendant company passed freed from their power to obtain payment ' otherwise than upon the bond: Fries v. Southern Penna. R. R. & Mining Co., 85 Pa. 73: Hoffman’s App., 118 Pa. 512; Fischer v. Catawissa Railroad Co., 175 Pa. 554. There is no provision in the original charter or supplement requiring the company to place gates in the dam to permit water to pass for any purpose, and therefore the plaintiff company and its predecessors in title could not compel the defendant to open its dam to supply water to the mills. If the plaintiff and its predecessors in title, as owners of adjacent lands, were injured by the erection of the dam and their water power was thereby destroyed, the remedy for the injury was on the bond which was amply adequate to indemnify all interested parties against “all losses or damages of any nature whatsoever.” If the owners have not availed themselves of the security afforded by the bond, they cannot now compel the defendant company to open the gates of its dam and supply them with water.

Having the right, under its charter, to' erect and maintain the dam without being required to make an opening therein for furnishing water for operating the plaintiff’s mills, the defendant cannot be compelled to place gates or make an open- • ing in the dam to allow water to flow to the mills; and if such gates were constructed by the defendant the right to take water through them was by its permission. The learned court below finds: “There can be no question from the evidence but that the use of the opening in the dam by the plaintiff’s successors in title was permitted by the defendant, and that at no' period of time whilst it was being used was it an adverse user.” A right by prescription to use the opening to secure water for plaintiff’s mills, therefore, could not arise, as there would be no presumption of a grant which is necessary to a valid prescriptive right: Turnpike Company v. Piper, 77 Pa. 432; Demuth v. Amweg, 90 Pa. 181. The plaintiff’s contention that it has a prescriptive right to use gates or an opening in the defendant’s dam for water to run its mills cannot be sustained.,

The decree does not deprive the plaintiff company of any use it may desire to make of the waters of the river. Any right to the waters of the stream it may have as riparian owner or otherwise it still retains. It is not, however, in a position to demand that the defendant company shall open its dam, constructed by authority of a charter granted by the commonwealth, so that it may utilize the water of the Susquehanna river for any particular purpose.

The decree is affirmed.


author: Mjr. Justice Mestrezat,

text:
    Adams, Appellant, v. Johnson.

      -Wills — Construction—Decedents’ estates — Remainders—Conditions precedent — Intention of testator.

    1. A condition is any qualification, restriction or limitation annexed to a gift, and modifying or destroying essentially its full enjoyment and disposal.
    2. Conditions on which, estates are limited in wills may be precedent or subsequent. • If precedent, the estate does not vest until the condition is fulfilled; if subsequent, it is liable to be divested on the subsequent failure of the condition. A condition precedent must be strictly, literally and punctually performed. ,
    3. Where an aged man, possessing no blood relations, living with his wife on a small farm, incumbered for half its value, makes a will leaving all his property to his wife for life with remainder over to a person then resident in his house providing “she continue to live with my said wife until death,” the remainder over is an estate on condition precedent which must be strictly and literally fulfilled before the estate. vests.
    4. In construing a particular provision of a will, the intention of the devisor to create an estate on condition governs, but it must be manifested in express terms, or by clear implication, and is to be gathered from the whole instrument and the existing facts.

      Ejectment — Weakness of defendant’s title.

      ■ 5-. In all actions of ejectment the plaintiff must recover on the strength of his own title and not on the weakness of that of the defendant.
    Argued Feb. 15, 1910.
    Appeal, No. 304,
    Jan. T., 1909, by plaintiff, from judgment of C. P. Schuylkill Co., March T., 1908, No. 196, for defendant non obstante veredicto in case of Anna Bell Adams v. Edward J. Johnson and Jonathan A. Casey.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in Walker township. Before Shay, P. J.
    The facts appear in the opinion of the Supreme Court.

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

      J. O. Ulrich, for appellant.
    — Tlie condition was not a condition precedent; the plaintiff was living with the testator at the time of making his will and also at and after his death; the testator intended the plaintiff should “continue” to live with his widow, which she did for nearly two years and was thereby in possession of the fee subject to the life estate of the widow. There was no devise over nor words of limitation and according to the terms of the Act of April 8, 1833, P. L. 249, sec. 9, this devise passed the whole estate subject to all liens. The estate of William Arthur had no real estate which the executor could sell: Shinn v. Holmes, 25 Pa. 142; Crosky v. Dodds, 87 Pa. 359; Dilworth v. Husky, 131 Pa. 343; Jeremy’s Est., 178 Pa. 477.

      B. J. Graeff, with him H. B. Graeff, for appellees.
    — The circumstances surrounding the testator at the time of making his will demonstrate that his intention must have been to make a condition precedent. The appellant admits she did not fulfill the condition. It follows that she could not recover, for conditions precedent must be strictly, literally and punctually performed: Vanhorne v. Dorrance, 2 Dall. 304; Campbell v. McDonald, 10 Watts, 179; Stover’s App., 77 Pa. 282; Fairfax’s App., 103 Pa. 166; Gilliland v. Bredin, 63 Pa. 393; Hess v. Hess, 67 Pa. 119.
   Opinion by

Mjr. Justice Mestrezat,

March 14, 1910:

This is an action of ejectment, brought February 10, 1908, and both parties claim the premises through the following paragraph of the will of William Arthur, deceased: “Second. I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my beloved wife, Mary Ann Arthur, until her death, after which balance to Anna Bell Adams, of Walker township, providing said Anna Bell Adams continue to live with said Mary Ann Arthur until death.” The residue was the whole estate, except what was required to pay the testator’s debts and funeral expenses. The will was dated June 8, 1903, and was probated May 4, 1904.

"William Arthur died in April, 1904, leaving a wife but no children Or other relatives to survive him. He lived on, 'and was seised of, the farm for which the action of ejectment' was brought: Anna Bell Adams, the plaintiff, went to live' With Mr; and Mrs. Arthur in July, 1902, when she was fourteen years of age. She continued to reside with them until his death in April, 1904, and thereafter remained with Mrs. Arthur until February, 1906, when, as the plaintiff alleges, she was compelled to leave Mrs. Arthur because of threats and ill treatment.

In March, 1906, the executor, by virtue of ah order of the orphans' court, sold the real estate to the defendants in this action. The widow died in September, 1907. ‘ ■ "'

The learned court below submitted the case to the jury and instructed them that “if you find that she (the plaintiff) did try to perform the condition and it was made impossible through the conduct of Mrs. Arthur for her to perform that condition, then we say your verdict should be for the plaintiff." The jury found in favor of the plaintiff, but the court entered judgment for the defendant notwithstanding the verdict. The court held that the plaintiff took an estate upon a condition precedent, and that it being conceded that'the plaintiff had not performed the condition the estate-never vested in her.

A condition is defined to be any qualification, restriction, or limitation annexed to a- gift, and modifying or destroying essentially its full enjoyment and disposal: Schouler on Wills, sec. 598. Conditions on which estates are limited in wills may be precedent or subsequent. If precedent, the estate does not vest until the condition is fulfilled; if subsequent, it is liable to be divested on the subsequent failure of the condition. A condition precedent must be strictly, literally and punctually performed: Vanhorne v. Dorrance, 2 Dall. 304; Brannan v. Mesick, 10 Cal. 95; Martin v. Ballou, 13 Barb. 119. It may be valid although there is no ulterior limitation of the estate to which it is annexed: Campbell v. MacDonald 10 Watts, 179; Gilliland v. Bredin, 63 Pa. 393; Tilley v. King, 109 N. C. 461. In construing a particular provision of a will, the intention of the devisor to create an estate on condition governs, but it must be manifested in express terms, or by clear implication, and it is to be gathered from the whole instrument and the existing facts: 6 Am. & Eng. Ency. of Law (2 ed.), 502.

We agree with the learned court below in its intrepretation of William Arthur’s will, and that the estate therein given the plaintiff was on a condition precedent. The testator and his wife were aged people, and resided on a small farm, encumbered for more than half its value. He had no blood relatives, and she had none residing in that community. Naturally, William Arthur desired to provide for his widow for the years that she might live after his death, and he thought he could best do so by permitting her to remain on the little farm with a companion. It was under these circumstances that he devised to her the farm for life, and gave the remainder to Anna Bell Adams, who was then a member of the family. If he had intended to give an absolute estate in remainder to the girl, he could have done so by omitting the proviso in the devise. The ninth section of the Act of April 8, 1833, P. L. 249, would then have been applicable, and the whole estate, less the life interest of the widow, would have passed to the devisee. Such a devise, however, would not have accomplished the object which the testator had in view. The estate in Anna Bell Adams would have been absolute, without any condition, and she would have been under no obligation to remain on the farm with Mrs. Arthur. The day after the testator died, she could have left the premises and remained away without divesting her interest or estate in the testator’s farm. Such, however, was not the intention of the testator. The language of his will discloses another and a different purpose. He intended, as his will discloses, that after the death of his widow the farm should go to the plaintiff, “providing said Anna Bell Adams continues to live with said Mary Ann Arthur until death.” This condition is expressed in apt words: Paschall v. Passmore, 15 Pa. 295. When she complied with the condition, attached to the devise itself, the title was to vest in her. Tf she did not comply with the condition, and did not continue to live with Mrs. Arthur until her death, the title did not vest. The testator’s purpose was to compel her to live with his widow until her death, and only upon that condition should she have the real estate. She was not the first object of his bounty, he did not intend to provide for her first and then for his widow, he did not intend to give Anna Bell Adams the remainder of his estate at the expense of his wife’s comfort during her remaining years.

The purpose of the testator as “gathered from the whole instrument and existing fact,” was evidently to give to Anna Bell Adams his farm only on condition that she remained with the widow until the latter’s death. The language of the will and all the circumstances surrounding the parties leave no doubt that such was the intention of the testator. It was, therefore, incumbent upon the plaintiff to show a compliance with the condition under which she took the estate before she could recover in this action. This she did not do andj therefore, she has no title to the premises in dispute and cannot maintain this action. Gilliland v. Bredin, 63 Pa. 393, was an action of debt for a legacy bequeathed to the plaintiff “if she shall continue under the direction of my husband J. till she becomes of age.” The legacy was held to be contingent and that as the condition upon which it was given was impossible of performance there could be no recovery. In delivering the opinion, Mr. Justice Agnew said (p. 387): “The right to it (legacy) depends upon living out the prescribed time, under the direction of the husband. The legatee was a mere dependant, and the testatrix may have had good reasons for the condition. The interests of her husband may have been the consideration of the bequest, or it might be the interests of the legatee, to preserve her in a course of good conduct. There are numerous authorities, that where the contingency is attached to the legacy itself, and not merely its payment, the legacy itself is contingent.” In Tilley v. King, 109 N. C. 461, a case similar to the one at bar, the devise in question was as follows: “I give and devise to my-wife Lockey Tilley the tract of land whereon I now live, and if Powell H. Tilley stays with us until after our deaths, and takes care of us, then I give and bequeath this tract of land to him forever.” There was no limitation over of the estate. It was held that Powell Tilley, a grandson, took an estate on condition which did not vest until the condition was performed. In delivering the opinion, Mr. Justice Shepherd said (p. 464): “The testator and his wife had no children living with them, and it was natural that they should desire the society of their grandchildren in their declining years. The father of this child had already been provided for, and, under the circumstances, we cannot hesitate in holding that the testator intended to create a condition precedent. It is insisted that where the condition requires something to be done which will take time, it should be construed, as a condition subsequent. But, says a writer of high authority, if there be ‘a condition which involves anything in the nature of a consideration, it is in general a condition precedent/ ”

In Marston v. Marston, 47 Maine, 495, the plaintiff claimed the premises in dispute under the following provision of his father’s will: “I give and bequeath unto my ■ son Oliver B. Marston, all my property after his mother shall cease to be my widow, providing he shall live on the place and carry it on till that time in a workmanlike manner.” The son voluntarily left the farm during his mother’s widowhood, and it was held that “he thereby forfeited all right thereto under the will.”

We are not required to pass upon the title of the defendants in this action. Whether they have a good or bad title is immaterial so far as the plaintiff’s right to recover in this case is concerned. In this, as well as in all actions of ejectment, the plaintiff must recover on the strength of his own title and not on the weakness of the defendants’ title. It is sufficient here to defeat the right of the plaintiff to recover that she has no title to or right to the possession of the premises in dispute.

The judgment is affirmed.


text:
    Wagner’s Estate.

      Executors and administrators — Practice, O. C. — Administrators de bonis non — Decedents’ estates — Act of February 24, 1834, P. L. 73.
    1. .The Act of February 24, 1834, P. L. 73, confers full power upon an administrator de bonis non to take possession of and administer all the unadministered assets of the decedent’s estate, but does not, however, authorize the administrator de bonis non to compel delivery of possession of the assets of the estate until an account has been filed disclosing what part of the estate still remains unadministered in the hands of the former legal representatives; and it is the balance of the estate, thus ascertained, that may be recovered from the former legal' representatives, of the decedent.
    2. If an executor or administrator die béfore he completes the-administration of the estate, it is the duty of his personal representative to settle an account for his decedent as-such executor or administrator, and if he neglects or refuses to do so, the orphans’ court will, upon application of an interested party, require him to file an account, which account, when filed, is subject to the same objections and exceptions as if it had been filed by the executor or administrator himself.
    • 3. A decree commanding the personal representative of a deceased executrix to hand over to an administrator de bonis non cum testamento annexo “all moneys, goods and assets” belonging to the original estate should not be made where no account of the assets of the estate has ever been filed, either by the deceased executrix in her lifetime or by her personal representative after her death.
    4. If an executor or administrator die, leaving the estate but partially administered, his personal representative cannot complete the administration of the first decedent’s estate.
    5. Tyson's Est., 191 Pa. 218, distinguished.
    Argued Feb. 21, 1910.
    Appeal, No. 70,
    Jan. T., 1909, by Silas Griffin, administrator from decree of O. C. Lackawanna Co., 1905, No. 572, ordering transfer of assets in Estate of James S. Wagner, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Reversed.
    Petition for rule on the personal representative of a deceased executrix to transfer the assets of the original estate to an administrator d. b. n. c. t. a. Before Sando, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned, among others, was the decree of the court ordering the transfer of the assets of the estate of James S. Wagner by the administrator of the estate of Sarah Wagner to the administrator de bonis non of James S. Wagner.

      Samuel B. Price, for appellant.

      T. M. Conniff, for appellee.
   Opinion by

Mr. Justice Mestrezat,

March 14, 1910:

James S. Wagner died September 19, 1905, testate, leaving to survive him a widow, Sarah Wagner, and collateral heirs. The will was executed in September, 1887, and a codicil was added thereto January 17, 1900. Sarah Wagner, the wife, was named as executrix, and on September 25, 1905, letters testamentary were duly granted to her. She filed an inventory and appraisement of the estate in the register’s office of Lackawanna county on December 20, 1905, from which it appears that the estate was valued at $15,333.61, and, with the exception of personal property amounting to about $53.00, consisted of bonds, mortgages, judgments and cash. She filed no account of her administration.

Sarah Wagner died on February 13, 1908, intestate, and letters of administration on her estate were granted February 17, 1908, to Silas Griffin. The administrator filed an inventory of her estate on March 17, 1908.

Letters of administration de bonis non cum testamento annexo upon the estate of James S. Wagner, deceased, were granted to Frederick 1). Wagner on August 25, 1908. lie presented a petition to the orphans’ court on October 12,1908, alleging that certain personal property in the possession of Sarah Wagner at the time of her death was the property of the testator; that her administrator had collected debts due the estate of the testator; that there were evidences of debt, bonds, and mortgages, etc., in the possession of her administrator, the property of the estate of the testator; and prayed the court to grant an order upon her administrator, “commanding him forthwith to surrender and deliver up to your petitioner, as administrator de bonis non cum testamento annexo of the estate of the said James S. "Wagner, all the moneys, goods, chattels, rights, credits, bonds, mortgages, evidences of debt and choses in action,..which were of James S. Wagner, deceased, or which came into possession of Sarah Wagner, as executrix or as legatee for life, to the end that your petitioner may perform the duties of his said appointment, and that the personal estate of the said decedent, James S. Wagner, may be lawfully administered and distribution of the same may be had, according to lav/.” The rule was granted. The administrator of Sarah Wagner filed an answer in which he admitted that his decedent had received, as executrix, the personal property of James S. Wagner, but denied that it was of the value alleged in the petition; averred that Wagner by his will and codicil bequeathed to Sarah Wagner his personal property absolutely; that a large number of items in the inventory are in excess of the amounts due from the several parties charged therewith; that all debts and charges against Wagner and his estate have been paid and settled; and that thereupon the said Sarah Wagner took the personal property as her own under the terms of the testator’s will and codicil. It appears that Sarah Wagner as executrix collected judgments in favor of her husband against various individuals and deposited the money in bank to her account as executrix but subsequently transferred the whole account to her individual name. Her administrator has taken possession of the estate as the property of his decedent.

The rule was heard by the orphans’ court on petition, answer, and testimony. The learned judge of the orphans’ court, filed an elaborate opinion in which he declined to determine the rights of the parties to the fund in the hands of Sarah Wagner’s administrator, but held that the administrator de bonis non was entitled to have the rule made absolute, and entered a decree that “Silas Griffin, administrator of the estate of Sarah Wagner, deceased, surrender, deliver up and pay over to Frederick D. Wagner administrator de bonis non cum testamento annexo, within twenty days from this date, all moneys, goods, and assets remaining in the hands of him the said Silas Griffin, due and belonging to the estate of the said James S. Wagner deceased, so that the same may be legally administered, and distribution of the same may be had, according to law.”

Decedents estates in this commonwealth are administered in accordance with statutory law. An executor or administrator is required to file an inventory of the personal estate of the decedent in the office of the register of wills within thirty days from the time administration is granted. He is required to file in the same office a just account and settlement of the estate in one year, or when thereunto legally required. If he neglects or refuses to file an inventory or render a full and just account of the estate or property which comes to his hands, he may be removed by the orphans’ court on application of any person interested in the estate; or, on an allegation that he is wasting the estate, he may be required to give additional security.

It is the duty of an executor or administrator to administer the estate. He must collect the debts due the estate and take possession of the property belonging to it. He is required to pay the indebtedness of the estate. If there is a balance remaining in his hands after the legal indebtedness against the estate has been paid, he must distribute it to the parties entitled thereto. He may protect himself, in distributing the estate, by pursuing the course pointed out in the statute, and if he does not observe the provisions of the statute he is liable to any person injured by his action.

If an executor or administrator neglects to file an account, as required by the statute, he may be cited to do so on the application of any person interested. When the account has been filed it shows or should show the true condition of the estate, the property and effects received by the accountant, the indebtedness of the estate as well as the indebtedness paid by the accountant. If it appears that the accountant has not charged himself with the whole of the estate, or has improperly taken credit for the payment of debts not legally due from or payable by the estate, exceptions may be filed to the account, and the orphans’ court will eliminate any improper item which it contains. In this manner, and in no other way, can the property of the decedent which comes into the hands of the accountant for administration be properly and j udicially ascertained. It is the statutory mode of procedure to determine the matter and must be pursued. Until an account has been filed and finally confirmed by the orphans’ court, therefore, it is apparent that there are no funds in .the hands of the accountant which the court can order to be disposed of, either among distributees or by payment to a successor in office to the accountant.

An administrator de bonis non has the right, and it is his duty, to administer the assets of the decedent not already administered by his predecessor. If an executor or administrator die, leaving the estate but partly administered, his personal representative cannot complete the administration of the first decedent’s estate. Another administrator must be raised, and he has authority to administer the balance of the de- • cedent’s estate, but can only take charge of and administer •the part of the estate which his predecessor in office has left unadministered. The former executor or administrator and his bondsmen are responsible for the due administration of the estate while it is in his hands. It is the duty of an administrator de bonis non to settle and account for the part of the estate not administered by his predecessor in office, and he is chargeable with such assets and nothing more.

If an executor or administrator die before he completes the administration of the estate, it is the duty of his personal representative to settle an account for his decedent as such executor or administrator. If he neglects or refuses to do so, the orphans’ court will, upon application of an interested party, require him to file an account. When the account has been filed, it is subject to the same objections and exceptions as if it had been filed by the executor or administrator himself. An administrator de bonis non may be an exceptant. When it is finally confirmed by the court, it will disclose the •extent to which the estate has been administered and the balance in the hands of the accountant’s decedent. It will or should show the property received by the accountant’s decedent, and the indebtedness of the estate paid by him, as well as any balance in his hands. If there is any personal property of the decedent in the hands of the deceased executor or administrator at the time of his death, the account should disclose the fact as well as any funds remaining in his hands. An administrator de bonis non has a right to the possession of such property and funds, unless distribution is the only matter necessary to complete the administration of the estate: Garman’s Est., 211 Pa. 264.

By sec. 31 of the Act of February 24,1834, P. L. 73, 1 Purd. 1112 (13th ed.), administrators de bonis non have power to recover from their predecessors in the administration, or their legal representatives, all moneys, goods and assets, remaining in their hands due and belonging to the estate of the decedent; to prosecute actions upon promises made to such predecessors in their representative character; to sue forth and defend writs of error, of scire facias, or of execution upon judgments, obtained in the name of their predecessors, and to proceed with unexecuted executions for the collection of such judgments: Provided, that in any suit for the recovery of moneys, goods or assets, remaining in the hands of the predecessor, or his legal representatives, brought before he shall have settled his final administration account, the court shall have power to stay proceedings thereon, upon the defendants filing such account in the register’s office of the proper county, twenty days previous to the term next succeeding that to which the writ was returnable, until final settlement of said account, and the court in which the suit is pending shall render judgment for the balance which shall appear to be due to either party. Before the passage of this act, an administrator de bonis non could not recover the assets of his decedent from his predecessor, or from the legal representative of his predecessor. Creditors and others interested in the estate were compelled to resort to the personal representatives of the decedent’s executor or administrator for payment of their claims. The act of 1834 was manifestly passed to confer authority on an administrator de bonis non to collect from his predecessor all of the assets of the decedent which came into his hands. It confers full power upon an administrator de bonis non to take possession of and administer all the unadministered assets of the decedent’s estate. It, however, does not authorize the administrator de boms non to compel delivery of possession of the assets of the estate until an account has been filed disclosing what part of the estate still remains unadministered in the hands of the former legal representative. It is the balance of the estate, thus ascertained, that may be recovered from the former legal representative of the decedent.

In Bowman’s App., 62 Pa. 166, letters testamentary on the estate of Sponsler were issued but not delivered to Rupp before the latter died. Letters de bonis non cum testamento annexo on Sponsler’s estate were then issued to Bobb. Bowman, as Rupp’s administrator, filed for his decedent an inventory of Sponsler’s personal estate so far as it came into Rupp’s possession. Subsequently Rupp’s administrator settled an account for his decedent as executor of Sponsler’s estate. Exceptions were filed by Sponsler’s administrator de bonis non. The auditor reported the account as filed with some few changes. The orphans’ court set aside the auditor’s report, and struck out the entire debit side of the account on the ground that no assets had come to the hands of Rupp as executor. Such action by the orphans’ court was held by this court to be clear error. In delivering the opinion, Mr. Justice Agnew said, inter alia (p. 171): “In the present case the account of the deceased executor was filed by his legal representative, and was the mode recognized by the law of ascertaining the estate which had come to his hands; yet the court struck out the whole debit side, the effect of which was to leave his estate exposed to actions at common law on the note, book account, and for the goods received. This is clearly contrary to the law which brings the settlement of such an account into the Orphans’ Court, and which does away circuity of action by giving the administrator de bonis non a direct remedy against the estate of the deceased executor for the balance remaining in his hands of the predecessor, after settlement in the Orphans’ Court.”

In Sibbs v. Philadelphia Saving Fund, 153 Pa. 345, Mr. Justice Williams, speaking for the court said (p. 348): “For all the assets remaining unchanged his (deceased administrator’s) liability ends, and an administrator de bonis non must be appointed to take charge of them, and finish the work of administration. But while the estate of the deceased administrator is liable, as he would have been if living, for what he had in his possession belonging to the estate under his care, it is entitled, as he would have been if living, to credit for all his proper disbursements and services rendered; and to settle these and ascertain the balance, an account must be stated. ... It is essential to the protection of the estate of the deceased administrator, and his sureties, that his account be finally settled before a right of action accrues against them for what he has received or reduced to his possession in his lifetime; for in this way only can they have the benefit of the credits to which his services and disbursements entitle them.” From this review of the law and procedure in such cases, it is apparent that under the facte of this case the learned court below was in error in making absolute the rule to show cause why the administrator of Sarah Wagner should not deliver the assets of the estate of James S. Wagner to his administrator de bonis non. Under the circumstances disclosed by the pleadings, the administrator of Sarah Wagner, deceased, should have filed an account for her decedent as executor of James S. Wagner’s estate. Tf he neglected or refused to file such an account the orphans’ court, upon application of the administrator de bonis non, would have compelled him to do so. The account having been filed, by this means it could have been ascertained what estate of James S. Wagner, deceased, had come into the hands of the executrix and to what extent it had been administered by her, and what was yet remaining in her hands of the estate at the time of her death. Under the act of 1834, the administrator de bonis non can recover only the estate of James S. Wagner, deceased, found to be in the hands of his executrix, unadministered, at the time of her death. Neither the decree of the court nor the petition on which it was entered discloses the assets of James S. Wagner’s estate remaining in the hands of the executrix at the time of her death. Who is to determine whether there were any unadministered assets of James S. Wagner’s estate in the hands of the executrix at the time of her death? If there were such assets, what were they and what was their value? To what extent did she administer the estate? What were the expenses of administration? Did she, as executrix, sell the small amount of personal property which came into her possession, as she was authorized to do, or did it remain in specie at the time of her death? What was the value of thé personal property, was it greater or less than shown in the inventory? Were the bonds, mortgages, and judgments of the-estate collectible, and was there any loss in the collection of any of them? It must be manifest that these questions can only be answered by requiring the administrator of Sarah Wagner, deceased, to file an account for her as executrix of James S. Wagner’s estate. The orphans’ court had no authority to determine them upon the rule which was granted in this case. Such a procedure has no precedent either at common law or under any statute of the commonwealth. _ On the contrary, the statute provides how the administrator de bonis non of James S. Wagner, deceased, may proceed to ascertain what part of his decedent’s estate remained unad.ministered in the hands of the executrix at the time of the latter’s death, and only such part of the estate, if any, is he authorized to take into his possession.

, The appellee relies on Tyson’s Est., 191 Pa. 218, to justify the procedure in this case. That was a contest between the surviving executor of a testator and the executors of 'his widow (who was not an executrix of her husband) to whom her husband’s executors had transferred all his personal estate and certain real estate. This court held that the orphans’ court could entertain a petition in the nature of a bill in equity to compel its retransfer. In the language of the opinion, the petitioner sought “the aid of the court to the executor in obtaining possession of the assets of his testator’s estate,” the title to which was admittedly in the testator and the possession of which had not been in his widow as executrix. Here," the widow was the executrix and took possession of the testator’s estate for the purpose of administering it. The court entered a decree requiring the administrator of the executrix to deliver the assets of her testator to his administrator de bonis non before an account had been filed showing what assets came into her hands and to what extent they had been administered. We think there is a material difference between the cases.

The decree of the court below is reversed, and the petition is dismissed at the costs of the petitioner.


text:
    Spencer’s Estate.

      jExecutors and administrators — Trusts and trustees — Real estate— Vendor and vendee — Ejectment—Practice, O. C — Jurisdiction.

      1. A petition to the orphans’ court by two coexecutors and co-trustees under a will, claiming title for the estate to certain real property and asking the court to set aside a sale of the premises made by a third coexecutor and cotrustee to a stranger, will be dismissed where the agreement of sale shows on its face that it was made by the co-executor and cotrustee in his individual and not his representative capacity; ejectment, being the proper proceeding for the determination of such a dispute over title. ' '
    2. The orphans’ court has power to review, set aside, and order a resale of real estate made under a testamentary power, but has no jurisdiction in a dispute over title to real property between the decedent’s estate and a person claiming through an agreement of sale made by an executor in his individual capacity.
    ■ Agreements between counsel — Jurisdiction.
    3. An agreement between counsel, the meaning of which is not clear, will not be used to bar an otherwise competent jurisdiction.
    Argued Feb. 21, 1910.
    Appeal, No. 250,
    Jan. T., 1909, by Jennie Bowie, from decree of O. C. Lackawanna Co., 1904, No. 216, setting aside a contract of sale of real estate in Estate of Harriet Amanda Spencer, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Reversed.

      Rule to show cause why a contract of sale of real estate should not be set aside. Before Sando, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was decree setting aside the contract.

      A. A. Vosburg, with him C. H. Von Storch, for appellant.

      John P. Kelley, with him Jospeh O’Brien and William W. Lathrope, for appellees.
   Opinion by

Mr. Justice Mestrezat,

March 14, 1910:

J. W. Hull and Dan Hull, surviving executors of the last will of Harriet Amanda Spencer, presented their petition to the orphans’ court of Lackawanna county averring, inter alia: that the testatrix died March 28, 1901, leaving a will which was duly probated on May 6, 1904; that she devised her real estate to her husband George Spehcer, her brother, J. Wesley Hull and his son, Dan Hull, in trust for various purposes set forth in the will; that said parties were also named as executors of the will; that George Spencer entered into a written contract with Jennie Bowie, the appellant, dated January 2, 1908, for the sale and conveyance of said real estate to the said Bowie for the consideration therein named, and possession of the property was to be given on April 1, 1908; that no part of said consideration money had been paid to the petitioners, the surviving executors and trustees, and that they had no knowledge that any part of said consideration had been paid to the said George Spencer; that the husband of the testatrix died April 13, 1908; and prayed that the said Bowie should be required to produce the agreement and show cause why the sale made thereby should not be set aside and the agreement canceled and declared to be null and void. A citation was awarded as prayed for in the petition. Jennie Bowie filed an answer in which she averred that the consideration named in the contract was paid and that the petitioners had knowledge of the fact. A copy of the agreement was filed with the answer. The agreement is dated January 2, 1908, and is “by and between George Spencer, . . . and Jennie Bowie.” Spencer, by this agreement, agrees to sell and convey to Bowie a certain described lot of ground for the consideration of $2,586, payable as therein stipulated. Bowie agrees to purchase the premises from Spencer for the price and on the terms named in the agreement.

The respondent denies that the orphans’ court has jurisdiction to pass on the title acquired by the appellant, and contends that if the allegations in the petition be true the remedy of the plaintiffs is an action of ejectment. The orphans’ court did not sustain this contention, but held that it had jurisdiction to grant the prayer of the petition, relying on Armstrong’s App., 68 Pa. 409, Dundas’s App., 64 Pa. 325, and other cases of that class in which it is held that the orphans’ court has power to control executors and other testamentary trustees in the exercise of their powers over real and personal estate, and has power to review, set aside, and order a resale of real estate made under a testamentary power.

There can be no doubt about the correctness of the principle announced in these cases, and that the orphans’ court has such authority in case of a sale of real estate made by a testamentary trustee. But that is not this case. The respondent is in possession of the real estate. She claims title thereto by a written agreement with one George Spencer, made by him in his individual capacity. While, as the petition discloses and the answer admits, Spencer was named as a coexecutor and co-trustee with the petitioners under the will of Mrs. Spencer, he did not, so far as the agreement discloses, enter into the. agreement to sell the real estate in controversy by virtue of his authority as an executor or a trustee, but simply as an individual. The agreement does not purport to be an execution of a power conferred by the will of Mrs. Spencer, nor to have been executed by George Spencer as a trustee or executor appointed by the will. It sells and agrees to convey to Jennie Bowie the title of George Spencer to the premises described in it. Whatever title Spencer had as an individual, this contract purports to and does agree to convey to Jennie Bowie. If he had a good title to the premises, it vested in Jennie Bowie by virtue of this agreement.

If J. Wesley Hull and Dan Hull as executors or trustees under the will of Mrs. Spencer have title to the premises in dispute, they must assert it in an action of ejectment. The orphans’ court is not the proper forum in which to adjudicate the title of Jennie Bowie, who has possession and claims title to the premises through a party acting for himself and not as a trustee or executor of Mrs. Spencer. She has the right to remain in possession of the premises until the trustees show title and right of possession. Whether George Spencer is a devisee under the will of Mrs. Spencer and took title to the premises which he conveyed to Jennie Bowie can only be determined by an action brought in the proper court for that purpose. Pullen v. Rianhard, 1 Whart. 514, was ejectment by a trustee to recover lands conveyed in trust to permit a married woman to take the rents and profits for her separate use which were not to be subject to her husband’s debts. It was held- that the trustee could recover against a purchaser at sheriff’s sale under a judgment-in tort against the husband and wife. If a judgment had been recovered against George Spencer and his interest in the property had been sold thereunder and purchased by Jennie Bowie, it would not be pretended that the orphans’ court could determine whether she had taken a good title or not. Whatever title or interest he had in the premises would pass by the sheriff’s sale, just as his interest or title to the premises passed by the agreement between him and Jennie Bowie. The proper forum in which to determine whether Spencer took title to the premises in dispute under his wife’s will, and whether that title is now in Jennie Bowie is in the common pleas and not in the orphans’ court. If she has a valid title, acquired from any source, she cannot be ousted from the premises.

■ We do not think the respondent is prevented from denying the jurisdiction of the orphans’ court by reason of the agreement of her counsel, made on the trial of the cause, that by the contract of Januar} 2, 1908, Spencer intended to convey to Miss Bowie his wife’s title to the premises under the authority contained in the will. It is not at all clear just what counsel meant by this agreement, and hence we will not deprive the respondent of her right to have her title determined in a court of competent jurisdiction.

We express no opinion as to the title of Jennie Bowie to the premises in dispute, nor as to the proper interpretation of the will of Harriet Amanda Spencer. It will be time enough to consider those questions when they are raised in a proper action brought in a court having jurisdiction to determine them.

The decree of the court below is reversed, and the petition is dismissed at the costs of the petitioners.


author: M. Justice Potter,

text:
    Cameron, Appellant, v. City of Carbondale.

      Mines and mining — Extinguishment of underground conflagration— Municipalities — Exercise of discretion by municipal authorities— Mandatory injunction — Equity—Continuous supervision.

    1. It is not for the courts to supervise or control the fair exercise of judgment or discretion by municipal authorities, nor can such authorities be required to do impossible or impracticable things.
    2. What the authorities of a municipality ought to do in grappling with a disastrous underground mine conflagration is within the exercise of their sound discretion and will not be the subject of a mandatory injunction against the city where nothing in the record appears to indicate that the officers of the city are not acting in good faith or in the exercise of their best judgment.
    3. A good and sufficient reason for the refusal of a mandatory injunction is the fact that its enforcement would require a close and continuous supervision by the court for an indefinite time.
    Argued Feb. 21, 1910.
    Appeal, No 21,
    Jan. T., 1910, by plaintiffs from decree of C. P. Lackawanna Co., Sept. T., 1909, No. 11, dismissing bill in equity in case of John R. Cameron, Henry T. Fenwick and John McCabe v. City of Carbondale.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Bill in equity for a mandatory injunction. Before Edwards, P. J.

      The facts appear in the opinion of the Supreme Court and in McCabe v. Watt, No. 1, 224 Pa. 253.

      Error assigned was decree dismissing bill.

      A. A. Vosburg, with him Charles W. Dawson, for appellant.
    —Iii our view of the case the liability of the city to cut off or distinguish the fire was decided in the case of McCabe v. Watt, 224 Pa. 259.
    The law can be invoked to compel a municipality to do a duty it owes to the general public: Brower v. New York, 3 Barb. 254; Marriott’s Case, 9 Md. 160; Taylor v. Cumberland, 64 Md. 68 (20 Atl. Repr. 1027).

      O’Brien & Kelly, with them Louis Gramer, City Solicitor, for appellee, cited:
    Lesley v. Kite, 192 Pa. 268.
   Opinion by

M. Justice Potter,

March 14, 1910:

The City of Carbondale was not a party to the litigation which led to the decision of this court in McCabe v. Watt, 224 Pa. 259, and the question of the legal obligation resting ■upon the city to extinguish the flames of a subterranean fire upon private property within its limits, -was not before the court for decision. It is a mistake therefore, to assume that the legal duty of the city to cut off or extinguish the fire under such circumstances, was passed upon or decided in that case. What the authorities of a municipality ought to do in the exercise of a sound discretion, when it comes to grappling with a disastrous underground conflagration, is one thing, and the power of a court of equity to supervise or control the exercise of that discretion, is another.

The case was heard upon bill and answer, and from the answer the following facts appear, which must be taken as established:

1. There are no methods in common and ordinary use which can be utilized to put out the fire complained of in the plaintiff’s bill.

2. Whether the fire can be extinguished at all or not, is a question of mining engineering, and a question of which the defendant has no knowledge.

3. Before any intelligent effort can be made to extinguish the fire, an expense amounting to approximately $100,000, would have to be incurred, and that without any assurance that such effort involving such a large sum of money would be successful.

4. The defendant has no apparatus by which it or any of its officers are able to extinguish the fire; there is no department of defendant city in any way equipped for the purpose of extinguishing it, and there are no officers of the city competent to undertake to extinguish or confine it.

5. The defendant is entirely without means with which to put out the fire in question.

Upon the facts which are undisputed, the court below refused to award a mandatory injunction against the city. Nothing appears in the record to indicate that the officers of the city are not acting in good faith, or in the exercise of their best judgment. They cannot be required to do an impossible or an impracticable thing. It may be that the cost of the effort demanded by appellants to extinguish the underground flames would exceed the damage resulting from the fire. It must be remembered that the City of Carbondale is in no way responsible for the existence of the fire. It started upon, and is still confined to private property. The situation is an extraordinary one, and the record presents nothing to indicate that the city authorities have gone beyond their discretionary power in refusing to act in the premises. It is not for the courts to supervise or control the fair exercise of judgment or discretion by the city authorities.

A further good and sufficient reason why a mandatory injunction should be refused under the circumstances of this case, is that its enforcement would require close and continuous supervision by the court for an indefinite time. As our Brother Elkin said in McCabe v. Watt (No. 1), 224 Pa. 253 (258): “A mandatory injunction should never be granted when its enforcement will require too great an amount of supervision by the court. It needs no citation of authorities to sustain this proposition. It is a fundamental principle and of general application in this and other jurisdictions.” He then pointed out that the enforcement of the injunction asked for in that case would “require the employment and supervision of a large-force of men for a long period of time. Skillful and experienced men must be .employed to direct the work, all of which involves the doing of something from day to day for an indefinite period, and this is .what the courts have said will not be undertaken in the enforcement of their decrees, and if foreseen no such decree will be entered.” This language aptly described what would be .called for in the present situation, and fully justified the .court below in refusing a mandatory injunction against the.City of Carbon-dale. As stated by counsel for appellee, it is a matter of common knowledge that mine fires in the anthracite coal regions present perplexing .and baffling questions of mining engineering, most difficult to deal with, .and at times impossible to grapple with successfully.

The principle under which municipalities may be compelled to abate nuisances upon a public highway, or.arising out of their own neglect of duty, does not apply here. The defendant city committed no tort. The fire was not permitted to start upon any property under her control, and she is innocent of any wrong doing in connection, there with. The court below very properly refused a mandatory injunction in this case.

The appeal is dismissed at the cost of appellants.