author: Mr. Chief Justice Mitchell, Mr. Justice Brown,

text:
    Morgan v. Reel, Appellant.

      Constitutional law — Courts—Judges—Orphans’ court — Common pleas— Act of April 18, 1905, P. L. 208.
    The act of April 18, 1905, entitled “An Act to authorize the judges of the separate orphans’ courts to hear and determine proceedings in equity at the request of the judges of the common pleas ” is constitutional.
    The said act has no bearing on the orphans’ court itself nor does it in any way infringe on the constitutional province of that court.
    Neither section 4 of article V of the judiciary article of the constitution, which provides that “until otherwise directed by law the courts of common pleas shall continue as at present established; ” nor section 6 which directs that in Philadelphia and Allegheny counties each court “shall have exclusive jurisdiction of all proceedings at law and in equity commenced therein;” nor section 26 of the judiciary article prohibiting the creation of other courts “to exercise the powers vested by this constitution in the judges of the courts of common pleas and orphans’ court;” nor section 20 of the judiciary article relating to the chancery powers of the common pleas; nor section 15 of the judiciary article which provides that “all judges required to be learned in the law .... shall be elected by the qualified electors of the respective districts over which they are to preside” is infringed by said act.

      Parent and child — Adoption—Intestacy—Grandchild.
    Where a grandfather adopts a grandchild, daughter of a deceased daughter, and dies intestate, the adopted grandchild inherits as a child only, and not in a double capacity as child and grandchild.
    Brown, Mestrbzat and Stewart, JJ., dissent, on the question of constitutionality.
    Argued May 23, 1905.
    Reargued Oct. 9, 1905.
    Appeal, No. 100, Oct. T., 1905, by defendants, from decree of C. P. No. 2, Allegheny Co., April T., 1905, No. 186, on bill in equity in case of James W. Morgan v. Mary Olive Morgan Reel et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin, and Stewart, JJ.
    Affirmed.
    Bill in equity for partition.
    The case was heard by Over, J., a judge of the orphans’ court of Allegheny county, specially presiding at the request of the judges of the common pleas under the provisions of the act of April 18, 1905.
    From the record it appeared that on March 24, 1870, Conrad Reel died seized in fee-simple of certain real estate, and that on May 31, 1886, his widow died seized also of certain real estate in her own right. They left to survive them as heirs at law four children, Jacob G. Reel, Annie E. McGuire, John A. Reel and William H. Reel. John A. Reel died on January 24, 1893, leaving to survive him, as his heirs at law, a widow and seven children, all named as defendants in the bill. William H. Reel died on May 26,1901, intestate, seized of the undivided one-fourth of the real estate of his father and mother. He left to survive him as his heirs at law, a widow, Catherine T. Reel, and two daughters, Stella C. Reel and Catherine Pauline Matthews, and two grandchildren, James W. Morgan and Mary Olive Morgan. These two grandchildren were the children of William H. Reel’s deceased daughter, Rosanna. C. Morgan. On November 14, 1885, William H. Reel and his wife, Catherine T. Reel, by proper proceedings in the court of common pleas No. 1, at No. 578, December Term, 1885, adopted his said granddaughter, Mary Olive Morgan, under the name of Mary Olive Reel, she being then a minor about four years old. James W. Morgan filed this bill for the partition of the lands of his grandfather, Conrad Reel, and his grandmother, Rosanna Reel.
    The court held that Mary Olive Reel, who was named as one of the defendants, was entitled only to a child’s share of the estate of her adopted father, and was not entitled to share with her brother in the portion which their deceased mother would have taken if she had lived. The court also decided that Judge Over had a right to hear the case.

      Error assigned was the decree of the court.

      George H. Quaill, for appellant.
    The act of assembly under which the judge held court and exercised judicial functions in this case is unconstitutional.
    Under our statutes of adoption and inheritance, when a person adopts his own grandchild, the minor child of his deceased daughter, the grandchild thus adopted shares in his estate, in case of intestacy, in the dual capacity of adopted child and grandchild: Clarkson v. Hatton, 143 Mo. 47 (44 S. W. Repr. 761) ; Com. v. Powel, 16 W. N. C. 297 ; Daisey’s Est., 15 W. N. C. 408; Rowan’s Estate, 132 Pa. 299; Wagner v. Varner, 50 Iowa, 532.
    In the absence of a statute to the contrary, an adopted child may inherit both from its adoptive parent and from or through its natural parent: Humphries v. Davis, 100 Ind. 274; Clarkson v. Hatton, 143 Mo. 47 (44 S. W. Repr. 761); Wagner v. Varner, 50 Iowa, 532.

      William H. Me Clung, with him Thomas D. Chanbler and William M. Mc Gill, for appellee.
    Express power is given to the legislature to enlarge or curtail the jurisdiction of the different courts established by the constitution: Com. v. Green, 58 Pa. 226; Com. v. Zephon, 8 W. & S. 382; Kilpatrick v. Com. 31 Pa. 198; Application of the President Judges, 64 Pa. 33.
    The same person cannot, as to the legal descendants of his adopting parent, stand in the position of his son, and at the same time claim to inherit a portion of his property as his grandson: Delano v. Bruerton, 148 Mass. 619 (20 N. E. Repr. 308).
    October 30, 1905:
   Opinion by

Mr. Chief Justice Mitchell,

1. The important public question in this case is the constitutionality of the Act of April 18, 1905, P. L. 208, “ to authorize the judges of separate orphans’ courts to hear and determine proceedings in equity at the request of the judges of the common pleas.” Section 1 provides tliat “ in addition to the powers now possessed and exercised by the judges of the separate orphans’ courts of this commonwealth, said judges shall, when called upon by the president or other law judge of any court of common pleas, as hereinafter provided, have power to hear and determine all issues and other matters in equity so fully and effectually, as to dispose thereof in the same manner as may be done by the courts of common pleas or the law judges thereof sitting in equity, in accordance with the laws, rules, regulations and practice governing the exercise of equity jurisdiction in this commonwealth. And whenever any service shall be rendered, in pursuance hereof, by a judge of such orphans’ court, he shall be deemed to be specially presiding in, and to have the powers of, the court of common pleas of the proper county, sitting in equity.” Other sections provide that the service shall not be compulsory on the judges of the orphans’ court, and supply the necessary details for the working of the act. ' .

A number of sections in the judiciary article of the constitution are referred to as being contravened by this act. Such as refer to the orphans’ court may be dismissed without detailed notice. Notwithstanding the phraseology of the title and the first section that “ the judges of the orphans’ court are authorized,” etc., the act has no bearing on the court itself. No interference or change is made in any way in the organization, jurisdiction, powers or practice of that court. There is merely a special grant of authority to the judges individually, not compulsory on them but to be exercised voluntarily under certain circumstances. The cases in which they sit by invitation remain in the common pleas where they were brought, and the records of the orphans’ court take no notice of them. We must disregard, therefore, all suggestions of infringement on the constitutional province'of the orphans’ court.

Section 4 of art. V, the judiciary article of the constitution, provides that “ until otherwise directed by law the courts of common pleas shall continue as at present established.” This act is not an infringement of that section, for so far as it makes any change it is one “ directed by law.”

Section 6 directs that in Philadelphia and Allegheny counties each court “ shall have exclusive jurisdiction of all proceedings at law and in equity commenced therein.” There is no infringement of this provision, for as already said the common pleas retains the record and the jurisdiction of the cases and whatever is done by the special judge is done in that court.

The same consideration answers the citation of section 26 of the judiciary article prohibiting the creation of other courts “to exercise the powers vested by this constitution in the judges of the courts of common pleas and orphans’ courts.” No other or new court is created by the act.

Stress was laid in the argument on section 20 of the judiciary article that “ the several courts of common pleas, besides the powers herein conferred, shall have and exercise, within their respective districts, subject to such changes as may be made by law, such chancery powers as are now vested by law in the several courts of common picas of this commonwealth or as may hereafter be conferred upon them by law.” But it is not apparent how the act contravenes this section. It takes away no jurisdiction from the common pleas, nor vests any in the orphans’ court, and if it did either or both, it would be within the proviso “ subject to such changes as may be made by law.” Indeed, the act may be wholly justified and sustained upon the equity feature of it. Subject to the constitutional guarantee of trial by jury, the jurisdiction, powers, practice and procedure in equity are inherently matters of legislative control, and are expressly recognized as such in the section quoted of the judiciary article. It is conceded that the legislature might confer a general jurisdiction in equity, concurrent with the common pleas, upon the orphans’ courts. And if it might do so in general, as a whole, it is certain that it could do the same pro tanto as to cases it thought proper. As already shown no such change of jurisdiction in either court is in fact made by the act, though it might have been. But a settled and unquestionable part of the procedure in equity from its earliest days is the authority of the chancellor to avail himself of the assistance of examiners, masters and other quasi judicial officers in the disposition of cases pending before him. Until quite recently that was the general practice in Pennsylvania, and for the taking of evidence, investigation of facts, and report upon the law, cases were sent ordinarily and regularly to such officers. Except for the general equity rules now in force the court of common pleas might have referred this case to the judge of the orphans’ court, with his consent, as examiner and master, and what the court might have done by rule or order the legislature might do by statute. In substance it has done nothing more by this act. The case remains in the common pleas, and the decree is the decree of the common pleas, sitting in banc after hearing upon exceptions to the report of the judge who conducted the trial. Had this been an action at law with a charge to a jury a larger question would have arisen on the right of the judge to sit, which will be considered under the next head, but the act is confined to cases in equity and as to them is clearly within the constitutional powers of the legislature.

The last provision to be noticed, and the only one really needing discussion, is section 15 of the judiciary article, that “ all judges required to be learned in the law, .... shall be elected by the qualified electors of the respective districts over which they are to preside.”

If this question were now presented for the first time we should be bound to say that it was one of quite serious difficulty, for the requirement of election of the judges by the electors of the district would seem to be a requirement of election by them to. the very court in which his right to sit is challenged. But the historical view of the constitutional provisions on the subject, and the uniform course of decisions under them have clearly settled the principles we must now apply. Very interesting and instructive discussions of the legislative power of reorganization and control over the courts named and established by the constitution will be found in Com. v. Flanagan, 7 W. & S. 68; Com. v. Zephon, 8 W. & S. 382; Kilpatrick v. Com., 31 Pa. 198; Foust v. Com., 33 Pa. 338; Com. ex rel. v. Green, 58 Pa. 226 ; In re Application of President Judges, 64 Pa. 33; and Com. ex rel. v. Hipple, 69 Pa. 9.

The constitution of 1790, article V, section 4, provided that until it shall be otherwise directed by law the several courts of common pleas shall be established in the following manner.” The constitutions of 1838 and 1873 contained the same provisions. The same article in the constitutions of 1790 and 1838 provided (sec. 5) that the judges of tbe common pleas should be judges of the Oyer and Terminer for the trial of capital and other offenders, and “ any two of said judges, the president being one, shall be a quorum,” etc. Under these sections it was decided in the cases above referred to that the , legislature could create a court of criminal sessions; could afterwards abolish it and transfer its jurisdiction to the quarter sessions; that it could authorize two judges of the common pleas (and afterwards a single judge), the president not being one, to hold the Oyer and Terminer; that it could establish a special court of criminal jurisdiction within the territory of a judicial district of the common pleas; and other changes not necessary to be specified here.

■ In sustaining the power to change the constitutional requirement that the president judge should be one of the quorum of the Oyer and Terminer (Kilpatrick v. Com., 31 Pa. 198), Strong, J., said (p. 214): “the act is not an attempt to establish a new court, which the legislature are authorized to do by the first section of the fifth article. If it be valid at all, it is because it is a reorganization of the existing court of common pleas, under the clause of the constitution which ordains that ‘the courts of common pleas shall continue as at present established, until otherwise directed by law.’ The plaintiff in error denies that the act is constitutional. We cannot regard this as an open question. Whatever doubts we might have were the question res nova (and speaking for myself I should have many) we are not now at liberty to entertain them. The validity of this act of assembly, as well as the intent of the constitutional provisions have heretofore been authoritatively defined,” citing the cases already referred to with others.

The amendment of 1850 introduced the election of judges in substantially the same terms as the present section 15 of the judiciary article. Kilpatrick v. Com., 31 Pa. 198, was decided after the amendment, but this question was not involved, as both the associate judges who held the Oyer and Terminer there had been elected by the electors of the district. In Com. v. Green, 58 Pa. 226, however, the point was made, and SharsWOOD, J., after noting that the letter of the constitution was not violated, said: “ But it is said that the spirit of it is violated because while the court for Schuylkill county is made an active and important tribunal, the provisions for the courts of Lebanon and Dauphin are contingent and illusory. The justices of Schuylkill county are commanded to make their returns to the special court. A grand jury is to be summoned to act upon the bills and other matters given them in charge, while the jurisdiction in Dauphin and Lebanon is restricted to bills found in the Oyer and Terminer and quarter sessions and transferred to the special court at the option of the district attorney. Thus in effect the electors of Dauphin and Lebanon choose the judge for Schuylkill. With the justice, wisdom or policy of this legislation we have nothing whatever to do.” The act was held constitutional, and the decision was affirmed and followed in Com. ex rel. v. Hippie, 69 Pa. 9, which was a mandamus to the district attorney of Schuylkill county to perform his duties in the criminal court established by it.

The controlling case, however, is the application of President Judges, 64 Pa. 33, decided in 1870. The Act of April 2,1860, P. L. 552, provided that where the president judge of any judicial district should be unable to hold the regular term of his courts he might call in any other president judge and that judge so called in should be authorized “ to discharge the duties appertaining to said office as fully as the regularly commissioned president judge of said district could do if present.” Two president judges, being unable to hold their courts, and their power to call in another to hold the Oyer and Terminer either being challenged or considered by themselves as doubtful, applied to the Supreme Court to assign one of its members for that purpose. The question of the extent of the requirements of the elective clause was thus directly raised. The act was held constitutional, Agnew, J., saying: “ This legislation is evidently a special organization of the several courts for necessary purposes, when the proper president judge is disabled, by the substitution of another judge in his place. Is this within constitutional power? We think it is, whether the act be a reorganization, or the creation of a new court for special purposes. If anything can be considered as settled by judicial determination it is that another judge learned in the law can be substituted for the president of the court as judge of the court of Oyer and Terminer ” and referring to the previous cases, cited supra, he added, “ The reasoning on which these decisions rest is incontrovertible,” p. 35. “ In such a case it is only the organization of the court which is changed by the substitution of one president for another. Now the power to substitute is the very point decided in the cases of Zephon, Kilpatrick and Foust, where it was held that an associate judge, learned in the law, could constitutionally take the place of the president. Whatever might have been the impression of any one formerly on this question, the point is conclusively adjudged,” p. 37. And in the same case Chief Justice Thompson, in a concurring opinion, after referring to his dissent in Com. v. Kilpatrick, and the other cases, said : “ I am not satisfied of error yet; but I must admit that the law is at present conclusively settled against me, and 1 am as every other citizen bound by it.”

The elective clause of the constitution was not specifically discussed in the opinion, but it was directly and necessarily involved in the case and in view of Chief Justice Thompson’s reluctant concurrence we are not at liberty to assume that so obvious and serious an objection was not considered and meant to be decided. We must concur with him that the case is of binding authority, and that the law is “ conclusively settled.”

It is to be said for the act of 1905 that it nowhere indicates any intent to transgress the constitution, to impair or restrict the powers of any constitutional court, or to impede or diminish the rights of electors. On the contrary, it is a bona fide effort for the relief of temporarily congested and overburdened court lists, without permanently burdening the judicial establishment of the state with officers who may not be permanently required. It is certainly in accord with the spirit of the constitutional control by the legislature over the organization of existing courts, and the creation of new ones. As such all presumptions are in its favor. Viewed in this light, and under the authority of the preceding decisions, we must regard it as a valid special reorganization of the courts of common pleas for the disposition of cases under special and exceptional circumstances.

2. The further question raised by this case depends on the statutes for the adoption of children. Where a grandfather adopts a grandchild, daughter of a deceased daughter, and dies intestate, does the adopted grandchild inherit as a child only or in a double capacity as child and grandchild ? The Act of May 19, 1887, P. L. 125, after prescribing the conditions and mode of adoption, and, inter alia, that the adopted child “ shall have all the rights of a child and heir of the adopting parent ” continues “provided, that if such adopting parent shall have other children, the adopted shall share the inheritance only as one of them ; in case of intestacy, he, she, or they, shall respectively inherit from and through each other as if all had been the lawful children of the same parent.”

The adopted child does not stand on the full footing of an actual child even as to his legal rights. He has only such rights as the statute clearly gives him. This has been uniformly held, with much strictness, not only under this act but also under the prior acts on the same subject. Thus it was held that a devise from the adopting parent to the adopted child is not exempted from collateral inheritance tax : Com. v. Nancrede, 32 Pa. 389; Com. v. Ferguson, 137 Pa. 595 ; though it may be so if the special statute authorizing the adoption, clearly so intends : Com. v. Henderson, 172 Pa. 135. And a devise to the children of A does not include adopted children: Schafer v. Eneu, 54 Pa. 304.

The act of 1887 intended to put the adopted child on the same footing as actual children, if such there should be, but not on any more favorable footing. This would be the natural and presumed intent, but it is put beyond question by the proviso. Having enacted that the adopted child shall have “ all the rights of a child and heir,” the framers of the act, apparently out of caution lest the word “ heir ” should seem to give a preference over other children, added the proviso that he should inherit “ only as one of them.” The act did not apparently contemplate, certainly did not expressly provide, for the case of the adoption of a grandchild, but the plain intent that the status of the adopted child should be equal but not superior to that of the others is enough to settle the question.

Had William H. Reel died intestate just before his adoption of the appellant his estate would have descended to three stocks, to wit: one-third to each of his daughters, Stella and Catherine, and one-sixth to each of his grandchildren, the plaintiff and appellant, children of his deceased daughter. By his adoption of the appellant he transferred her from the class of grandchildren to the class of children, and her status in the former was merged in her status in the latter. When he died thereafter his estate descended to four stocks, one-fourth to each of his actual daughters, another fourth to his adopted daughter, the appellant, and the remaining fourth to the plaintiff as representative of his deceased mother. Thus and thus only can the equality intended by the statute be maintained.

Decree affirmed.

Mr. Justice Brown,

dissenting:

As a rule, it is better that a member of a court of last resort, not concurring in the view of the majority, confine, if possible, his dissent to the consultation room. This is especially true in the disposition of constitutional questions, which are always important. But there are times when public dissent cannot be withheld without being misunderstood, and, as I am unwilling to be understood as concurring in the view of the majority of my brethren in this case, I must dissent of record, and briefly state my reasons for doing so.

By section 22 of the judiciary article of the constitution, creating separate orphans’ courts, it is provided that they are to exercise all the jurisdiction and powers vested in orphans’ courts at the time of the adoption of the constitution, and, in addition, such as might thereafter be conferred. The act of 1905 confers no jurisdiction or powers upon separate orphans’ courts. These are just what they were before the passage of the act, and the judges of the separate orphans’ courts can now do nothing in their own courts that they could not have done prior to April 18,1905 ; but, when transplanted into the equity side of a court of common pleas by the process pointed out by the act, a judge of the orphans’ court becomes, so long as he remains there, a judge of that court. The words of the act are, that while sitting in the common pleas at the invitation of one of its judges, “ he shall bo deemed to be specially presiding in, and to have the powers of, the court of common pleas of the proper county, sitting in equity.” When this was enacted, section 15 of the same article of the constitution was either overlooked or forgotten. It declares that “ all judges required to be learned in the law, except the judges of the supreme court, shall be elected by the qualified electors of the respective districts over which they are to preside.” The common pleas is recognized by the constitution as a distinct court from a separate orphans’ court, and the words of the 15th section of the judiciary article mean that the judges of the common pleas shall be elected as such by the qualified electors of the district over which they preside; and so of the judges of the separate orphans’ courts. How, then, can one sit on the judgment seat of the common pleas unless he is sent to it as one of its judges “ by the qualified electors ” ? The constitution declares that to be the only way in which a seat there can be reached, and the legislature cannot point out any other. It may modify and change the jurisdiction and powers of the court of common pleas, but it cannot change the mode of the selection of its judges. If the legislature can authorize a judge ' of the common pleas to call an orphans’ court judge to his assistance as a temporary part of his court, why can it not authorize the calling of any member of the bar for such a purpose ? If allowed to sit in the common pleas as one of its judges, a judge of the orphans’ court will not be there simply as an examiner or master to aid that court, but as a component part of it, and, when- sitting or presiding alone, the court itself. Even if the legislature could direct an orphans’ court judge to sit and act as a judge of the common pleas, it has not undertaken to do so, but has committed or delegated to a common pleas judge the power to create, for the time being, out of an orphans’ court judge a judge of his own court and to clothe him with all of his equity powers and jurisdiction. If for no other reason, for this delegation of power, which, if it existed at all, would be in the legislature alone, not to be delegated by it to any one, the act ought not to be sustained.

It is true that the Act of April 2,1860, P. L. 552, providing that a president judge in any judicial district in the state may call in another judge to hold courts for him, was sustained, but the cases sustaining it are certainly not to be stretched in view of what has been said of them, and in citing them as authority for the constitutionality of this act, it has been entirely overlooked that under that act, when one judge calls in another to hold court for him, the judge called has in his own court, to which he was elected by the qualified electors, the same jurisdiction and powers that the calling judge possesses, and into the court outside of Ijiis district the invited judge takes with him all the powers which he possesses in his own court; but not so here. In his own court the orphans’ court judge has no more jurisdiction over a bill in equity for a decree for specific performance of a contract between living parties than a justice of the peace; but by the act of 1905, when he gets into the common pleas, he at once acquires all of its equity powers.

The spectacle of a judge of a separate oiphans’ court sitting in the common pleas under the act of 1905 is truly anomalous. He is not a common pleas judge, for he was not elected as such, and, therefore, possesses none of the powers of such a judge. In his own court he cannot do what he does in the court into which he goes, for in his owm. court he has no such jurisdiction and powers, even under the act of 1905, as he exercises in the common pleas. This is a situation not only not contemplated by the constitution, but in clear violation of it.

Mestrezat and Stewart, JJ., concur in the dissent.


source: Caselaw Access Project

author: Mr. Chief Justice Mitchell,

license: Public Domain

text:
    Holbrook’s Estate.

      Trusts and trustees — Restraint of marriage — Condition—Limitation.
    Where a cestui que trust is given the income of a fund “ during the term of her natural life, or so long as she remains unmarried,” with a gift over “in case of her death or marriage,” the gift is upon a limitation in favor of 'the cestui quo trust during the period she remains unmarried, and is valid. Such a provision is not to be construed as an unlawful condition in restraint of marriage.
    In Pennsylvania the right of a man to do as he will with his own has always been liberally construed. Accordingly, a donor, not under any obligation to give, may give with such conditions as he pleases, subject only to the restriction that the conditions shall not be clearly illegal. Thus a man may not settle his own property on himself so as to keep it out of the reach of his creditors, for that would lead directly to fraud. But a parent or other person, not bound to give at all, may give on a spendthrift trust though the gift is thus placed beyond the reach of the donee’s creditors. In considering any Restriction there is no presumption of illegality. On the contrary, the presumption is in favor of innocence and validity.
    Argued May 24, 1905.
    Appeal, No. 81, Jan. T., 1905, by Helen Morton Bunker, from decree of O. C.Phila. Co., April T., 1903, No. 578, sustaining exceptions to adjudication in Estate
    of Margaretta R. Holbrook, deceased.
    Before Mitchell, C. J., Fell, Brows, Potter, and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    The testatrix by will directed as follows :
    “ I give and bequeath to my niece Helen Morton, the interest on the sum of $30,000, the said $.30,000 to be held in trust by the Philadelphia Trust, Safe Deposit & Insurance Company for her use, she to receive the net income arising therefrom ■ paid semi-annually during the term of her natural life, or so long as she remains unmarried. In case of her death or marriage I direct that half of the principal be given to the Society for the Prevention of Cruelty to Animals, and the other half to the Society for the' Prevention of Cruelty to Children.”
    The niece married in 1904.
    The adjudicating judge, Pene ose, J., held that the bequest was for life upon condition of forfeiture in case of marriage; that the condition was void because against the policy of law, and that ’ the niece, notwithstanding the marriage, continued entitled to the income.
    The court in banc held that there was a limitation in favor of the niece during the period of her nonmarriage which was valid.

      Error assigned was decree sustaining the exceptions to the adjudication.

      John G. Johnson, for appellant.
    We submit that this court has held, and that the law of Pennsylvania beyond doubt is as has been thus held, that a gift of personalty for life upon condition that, in case of marriage generally of a spinster, is contrary to the policy of the law.-
    The reason of the policy is that a gift for life upon condition of divestiture or forfeiture in case of marriage generally tends to immorality.

      N. Eubois Miller, with him John J. Wilkinson and Joseph Mellors, for appellees.-
    The exact case has been decided in In re King’s Trusts, 29 Law Rep. Irish, 401.
    For further authorities, see the following : Andrew v. Andrew, 1 Coll. 686 ; Heath v. Lewis, 3 DeG., M. & G. 953.
    October 30, 1905:
   Opinion by

Mr. Chief Justice Mitchell,

In Pennsylvania the right of a man to do as he will with his own has always been liberally construed. Accordingly, a donor, not under any obligation to give, may give with such conditions as he pleases, subject only to the restriction that the conditions shall not be clearly illegal. Thus a man may not settle his own property on himself so as keep it out of the reach of • his creditors, for that would lead directly to fraud. But a parent or other person, not bound to give at all, may give on a spendthrift trust though the gift is thus placed beyond the reach of the donee’s creditors.

In considering any restriction there is no presumption of illegality. On the contrary, the presumption is in favor of innocence and validity. The particular restriction which we have in this case belongs to the class known in general terms as in restraint of marriage, and is claimed to be void as against the policy of the law. The general rule must be conceded. But it has no sound basis, either historically or logically, as is apparent from the various origins assigned to it, and the refinements, subtleties and inconsistencies in its application. The old lawyers used to say there were three favorites in the law, life, liberty and marriage, and Coke attributes the origin of the rule to this favor. Other authorities find its origin in the civil law, others again in the canon law, and finally in some of the more modern cases it is based on the policy of the law for the promotion of morality, which is certainly a farfetched and unsubstantial reason in view of the admitted exceptions. Thus, for example, it is difficult to see why such a restriction tends to immorality in a gift of personalty but does not in a gift of realty, or if the divestiture of an estate by marriage has the same tendency why a limitation of the estate to a continuance unmarried should not. Yet these distinctions are as firmly settled as any in the law: Lancaster v. Flowers, 198 Pa. 614; Hotz’s Estate, 38 Pa. 422. The curious will find this subject learnedly discussed in the argument of Mr. Hare and the opinion of Kennedy, J., in Mcllvaine v. Gethen, 3 Whart. 575, and the opinion of Chief Justice Gibson in Com. v. Stauffer, 10 Pa. 350.

Nor does the rule stand any better considered logically. It started apparently with a prohibition of all restrictions against liberty of marriage: Mcllvaine v. Gethen, 3 Whart. 575. Distinctions and exceptions one after another sustained prohibitions which went merely against time or place, or particular persons, conditions with a gift over on breach, conditions in a gift of land, and finally the distinction between conditions subsequent, working a divestiture, and conditions limiting the estate given. This last distinction is logical enough, for where there is an estate given and the condition is held void there is still the estate which may continue, ivhile where the estate itself is to last only so long as the condition is fulfilled there is nothing left after the breach. But while this distinction is logical it is dry technical logic with no basis of substantial reason for application in the affairs of life. It is a reproach to the law that of two donors intending to do exactly the same thing one shall succeed and the other fail as a violator of law merely because one scrivener knew what he was about and wrote “ so long as the donee remains unmarried,” and the other was ignorant or careless and wrote “for life if so long the donee remains unmarried:” Hoopes v. Dundas, 10 Pa. 75.

So strongly have the courts of Pennsylvania felt the undesirability of interference with the right of free disposition of property by the rule invoked in this case that the steady tendency has been to recognize and encourage exceptions which substantially eat out the rule itself. We share the views which have produced this result, and while we will recognize and follow the adjudicated cases which may be properly regarded as having settled rules of property, yet we are not disposed to enlarge the scope of the principle or to apply it to new and questionable cases.

The present controversy arises over the legacy of the testatrix to the appellant of the income of a fund “ during the term of her natural life, or so long as she remains unmarried,” with a gift over “in case of her death or marriage.” The primary rule is to give effect to the intention of the testatrix, and the presumption is that the intent was lawful. The form in which she expressed her will is unimportant except as indicating her intent. There is nothing in this will clearly indicating an indent to prohibit marriage. The words are equally appropriate to express an intent to supply an income to the legatee so long as she was unmarried and presumably dependent on her own exertions for her maintenance. This is a perfectly lawful intent though its practical effect may be to discourage marriage. Even regarding the language of the gift as ambiguous in being equally capable of two constructions, we must give it the one that wall preserve the testatrix’s right to dispose as she pleased of her property.

There was a gift over on the happening of death or marriage. In Cornell v. Lovett’s Exr., 35 Pa. 100, and Mickey’s Appeal, 46 Pa. 387, restrictions much more clearly conditions subsequent divesting the legacies, than that in the present case, were expressly held to be valid.

The decree is affirmed.


author: Per Curiam, Per Curiam,

text:
    Commonwealth v. Hine, Appellant.

      Criminal law — New trial — Discretion—Appeals.
    After a conviction of murder of the first degree the prisoner asked for a new trial on the ground that the district attorney by representing to defendant’s counsel his willingness to accept a plea of guilty of murder of the second degree induced the latter to go to trial without having made proper preparations; and also on the ground of after-discovered evidence. As to the first reason the trial judge found that there had been no misunderstanding as to the plea which was to be entered, and that the defendant’s counsel had been allowed, at his own request, a week to prepare the case. As to the second reason, the trial judge found that the after-discovered evidence was merely cumulative as to the mental and physical condition of the prisoner prior to the killing. Held, that a new trial was properly refused.
    Argued Oct. 9, 1905.
    Appeal, No. 216, Jan. T., 1905, by defendant, from order of O. & T. Phila. Co., Sept. T\, 1903, No. 734, refusing a new trial in case of Commonwealth v. Louis O. Hine.
    Before Mitchell, C. J., Fell, Biiown, Mesteezat, Pottee, Elkin and Stewabt, JJ.
    Affirmed.
    Rule for a new trial after verdict of murder in the first degree.
    Audenbied, J., filed an opinion which was in part as follows:
    The second reason advanced for a new trial is the allegation that the assistant to the district attorney who tried the case, by representing to defendant’s counsel his willingness to accept a plea of guilty of murder of the second degree, induced him to go to trial without having made proper preparations.
    By the report of the trial judge it appears that when this case was first called for trial, defendant’s counsel offered at side bar to enter a plea of guilty of murder of the second degree ; that to the acceptance of this plea the assistant district attorney in charge of the case objected, saying that he had evidence which made it seem to him that the defendant was guilty of murder of the first degree; that thereupon defendant’s counsel stated that if the question of murder of the first degree was to be tried out, he was not prepared to go on with the trial, and, being asked by the trial judge how long a time he would require for his preparation, replied “one week;” that thereupon, with the consent of the assistant district attorney, the trial of the cause was postponed for a week; that when the case was called the second time for trial, defendant’s counsel made no objection to proceeding; that it was understood by counsel on both sides that the case was to be tried on the day when the trial took place, and that the question of the degree of the defendant’s guilt would be left to the jury.
    With the negotiations in relation to the change of plea which went on before the day when the case was first called for trial, we have nothing to do, nor have we anything to do with what may have gone on between the assistant to the district attorney, who had charge of the case, and defendant’s counsel after the arrangement had been made which is reported by the trial judge. That arrangement contemplated a careful trial of the case and was assented to by both parties. Counsel for the defendant was well aware that the court, in view of what had been said by the assistant district attorney, would not receive a plea of guilty of murder of the second degree, and intended to throw the responsibility of deciding the question of fact in the case on the jury. It is fair, however, to observe that the assertions of counsel for the defense in relation to the arrangements alleged by him to have been made between him and the assistant district attorney are denied by the latter.
    At the argument of the motion'for a new trial the only point advanced with seriousness on behalf of the defendant was that the possession of after-discovered evidence throwing light upon the issue tried by the jury, which he could not have obtained at the time the trial took place, entities him to have the case tried over again, so that this evidence may be presented to the jury. The evidence referred to is the testimony of Victor J. Hamilton, the proprietor of a saloon at No. 1603 Lombard street, Philadelphia. By his affidavit, which has been presented to us, it appears that Hamilton saw Hine between three and four o’clock in the afternoon of August 3, 1903. This was about eight hours before the shooting took place. Hamilton swears that although the defendant’s condition did not seem so much that of one who had had too much liquor, it appeared to be that of one “ who was getting the rams, or was under the influence of both drugs and liquors.”
    In our view of the matter, this testimony is merely cumulative. It relates to the mental condition of the accused at a point of time appreciably antecedent to the shooting of his wife. That condition was testified to by Thomas O’Toole and Elizabeth R. Dougherty, and their testimony is to the same practical effect as Hamilton’s. The trial judge properly told the jury that the important question for them to determine related to the condition of the defendant’s mind at the moment when the shooting took place. Upon that question the testimony of Hamilton bears only remotely. A man may be so benumbed mentally by drink in the afternoon as to talk vaguely and incoherently, but be quite himself again within eight hours.
    We are of the opinion that the defendant was fairly tried, and that the verdict of the jury is supported by the evidence in the case; and we, accordingly, refuse to grant the motion for a new trial.

      Error assigned was the order of the court.

      Thomas Raeburn White, with him Walter Thomas, for appellant.

      John O. Bell, district attorney, and Joseph H. Taulane, assistant district attorney for appellee, were not heard.
    October 30, 1905:
   Per Curiam,

The single assignment of error is that the court below abused its discretion in refusing a new trial. There is nothing in the case that justifies such a charge or that even requires discussion.

The judgment is affirmed and the record remitted that the sentence may be executed in accordance with law.

Per Curiam,

October 80, 1905 :

Rule for new trial under Act of April 22, 1903, P. L. 245, refused.


author: Pee G ubi am,

text:
    Mace’s Estate.

      Auditor — Auditor’s findings of fact — Appeals—Review.
    An auditor’s findings of fact as to the correctness of a trustee’s accounts, and claims to surcharge, approved by the court below, will not be reversed by the appellate court in the absence of manifest error.
    Argued Oct. 10, 1905.
    Appeal, No. 117, Oct. T., 1905, by Safe Deposit & Trust Company, Trustee et al., from decree of O. C. Westmoreland Co., Nov. T., 1899, No. 43, dismissing exceptions to auditor’s report in Estate of Laura C. Mace, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of Edward B. McCormick, Esq., auditor.
    Steel, P. J., filed the following opinion:
    A careful examination of the testimony, exceptions, papers and repórt in the case convinces us that all the interest that could fairly have accrued on the money and securities in the. hands of the accountant has been charged against him, and that the proper amount of premium on the bonds sold has been accounted for. There is no proof that he improperly received anything for transferring the $10,000 of four per cent government bonds for the longer term five per cent school bonds. And there can be no doubt but that the trade was of advantage to the estate both in the amount of interest to be received and the ultimate value of the bond. The contestants had their day in court and as the time for the review of the original account had expired they were not entitled to have that decree opened.
    And now, to wit: May 6,1905, the exceptions are dismissed and the auditor’s report is confirmed absolutely.

      Error assigned was the decree of the court.

      John E. Kunkle, with him Edward E. Bobbins, for appellants.

      James S. Moorhead, with him John B. Head, for appellee.
    October 30, 1905 :
   Pee G ubi am,

The questions of fact as to the correctness of the trustee’s accounts, and the claims to surcharge him were carefully considered in detail by the auditor and his findings have been approved by the court. We have not been shown any valid ground for differing from the conclusions, and there is nothing else in the case. The decree is affirmed on the opinion of the court below.

Decree affirmed at the costs of the appellant.


author: Pee Cueiam,

text:
    Stark v. Byers.

      Will — Charge on land — Monument at grave.

    Where a testator gives all of his estate, real and personal, to his wife for life, with remainder to a friend whom he makes his executor, and charges this remainder with certain legacies, and further directs his executor to erect a monument at his grave, not to exceed a sum stated, the cost of the monument is not a charge on the land.

      Mortgage — Interest—Life tenant — Widow.
    Where a testator seized of real estate subject to mortgage devises a life estate in the land to his widow, and it appears that the widow before the death of the testator has acquired by assignment a portion of the mortgage, but during her life tenancy neglects to pay the interest on the other portion of the mortgage, such interest may be deducted from her share of a fund created by foreclosure proceedings on the mortgage.
    Argued Oct. 10, 1905.
    Appeal, No. 188, Oct. T., 1905, by W. E. Barubart, Exr. of Mrs. O. IT. Stark, deceased, from order of G. P. Westmoreland Co., Aug. T., 1900, No. 552, dismissing exceptions to auditor’s report in case of Mrs. C. TI. Stark, Assignee of W. R. Barnhart et al., v. W. S. Byers, Exr. of C. H. Stark, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to auditor’s report. H. W. ~Walkinshaw, Esq., auditor.
    From the record it appeared that the fund for distribution before the auditor was raised in foreclosure proceedings under a mortgage created by Caleb H. Stark in his lifetime. The mortgage originally amounted to $20,000, and $4,000 of this had been assigned by Barnhart to Mrs. C. H. Stark in her husband’s lifetime. Stark by his will gave his wife a life interest in his real and personal property.
    Other facts appear by the auditor’s report which was in part as follows:
    ' In the verdict fixing the amount due Mrs. C. H. Stark, the court refused to allow any interest to her, except up to the time her life estate began, and it further decided that she was liable for the payment of the interest accumulated on this mortgage during her life tenancy. That portion of the opinion of his honor Judge McConnell, which bears on this question, and was filed at that time, is as follows :
    There is no dispute between the parties about the fact that Mrs. C. H. Stark, through these assignments, became possessed of the right to $4,000 of. the mortgage debt, and is yet the owner of it. The verdict ascertains that she is the widow of C. H. Stark, deceased, and through his will is possessed of a life estate in the mortgaged premises. It also ascertains that this life estate vested in her by the death of her husband on January 1, 1899.
    There is but one question of law involved in this special state of facts, and that is, whether Mrs. C. H. Stark can collect interest on her share of the mortgage since the time she became tenant for life of the mortgaged premises through her husband’s will. It is the duty of a life tenant to pay the interest falling due on incumbrances; interest on a mortgage is payable by the life tenant whether the mortgage was created by the testator who devised the life estate or by a former owner: Derr’s Est., 18 Phila. 224; Pennock v. Imbrie, 8 Phila. 140; Gross’s Est., 18 Phila. 154; Fidelity Ins., etc., Co. v. Dietz, 132 Pa. 36; Stoops’s Est., 31 Pitts. L. J. 34; Lang’s Est., 31 Pitts. L. J. 173; School’s Est., 1 Pitts. 358; McDonald v. Heylin, 4 Phila. 73 ; Jewell’s Est., 1 W. N. C. 404; Schurr’s Est., 13 Phila. 353.
    Mrs. Stark was therefore liable for the payment of the interest that has accumulated on this mortgage during her life tenancy of the mortgaged premises. The original mortgagee and his assignees, other than Mrs. Stark, are not compelled to regard the existence of this duty which had its inception since the making of the mortgage, but may enforce the mortgage against the entire title as it existed in the mortgagor when the mortgage was given.
    A widow, tenant for life, is bound to keep down encumbrances, pay taxes, water rent and repairs in exoneration of those entitled in remainder : Schurr’s Est., 13 Phila. 353.
    When a life tenant neglects to pay the taxes and the remainder-man pays the taxes, the latter may recover the amount of such payments from the estate of the deceased life tenant: Shue’s Est., 5 York, 25.
    There is no apparent reason why this would not be true of interest which it was the duty of the life tenant to pay. The law does not favor such circuity of action.
    The question arises whether, if Mrs. Stark, the life tenant, neglected to pay the interest due during her life estate on that part of the mortgage assigned to Mrs. Mary M. Barnhart, to wit: the sum of $1,277.20, and the interest on that part of the mortgage assigned to W. R. Barnhart, to wit: the sum of $3,057.89, for the same period, under the law and the direction of the court at the time of the rendition of the verdict aforesaid the auditor can deduct this amount of interest from the sum coming to the estate of Mrs. C. II. Stark out of this fund.
    The estate of Mrs. C. H. Stark is liable to the remainder-man for these amounts of interest, and they could be collected by him out of her estate, if they had been collected from him. It is from the estate of Mrs. G. H. Stark as represented in this distribution that the auditor proposes to deduct these amounts of interest. It is simply having her estate do that which the law compels her to do. If her executor had paid it he would be entitled to repayment from the funds of the estate after-wards coming into his hands: Gross’s .Est., 18 Phila. 154; MeKerrahan v. Crawford, 59 Pa. 390.

      Other portions of the auditor’s report are quoted in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to auditor’s report.

      H. Clay Beistel, with him James E. Keenan, for appellant.

      James 8. Moorhead, with him O. E. Heller, for Jacob Byers. Paul H. (Jaither and Cyrus E. Woods, for William S. Byers.
    October 30, 1905:
   Pee Cueiam,

Two questions are raised by the amended assignments of error. As to the first, the auditor reported :

“ As to the claim for $1,500 for the erection of monuments at the graves of C. H. Stark and his wife.
“ The claim is made that it was the intention of the testator, O. H. Stark, to give to W. S. Byers only what was left after paying all legacies and performing all duties in the will. The testator is very careful to designate the legacies that are charged on the land. He uses the following language: “ I give, devise and bequeath unto my beloved wife, Ann Lavina Stark, all my estate, real, personal and mixed, of what nature or kind soever and wheresoever the same may be at the time of my decease for and during the term of her natural life, and at her death I give, devise and bequeath all of my estate as aforesaid, unto my friend William S. Byers, Attorney at Law, of Greens-burg, Pa., to him, his heirs and assigns forever, subject, however, to and charged with the payment of the following legacies and bequests: ”
“ There can be no doubt that the legacies which follow are charges on the land. But the direction as to the above claim of $1,500 is not in this list. Before making the explicit charges on the land, the testator uses the following language as to this claim:
“ I direct that my executor hereinafter named shall erect or cause to be erected at my grave and at that of my wife when she shall depart this life, suitable monuments, the costs of which shall not exceed the sum of $1,500. He, my said executor shall use his discretion and best judgment in regard to the erection of the monuments for myself and wife .... he having an intimate knowledge of my wishes and desires in regard thereto. I further direct that in the settlement of his accounts he shall have credit for all moneys expended by him in the carrying out of my wishes and desires.”
“ There is no specific amount mentioned. The will seems to fix only an amount which is to be determined by the executor, not to exceed SI,500. How much could be impounded for this purpose ? One hundred dollars ? Five hundred dollars ? One thousand dollars ? Or fifteen hundred dollars ?
“ In the brief submitted by the learned counsel for this claim the law does not exactly fit the facts of the present case before us. The words used after certain directions are, “ Rest, Residue and Remainder,” clearly showing that what was left was given under the will.

In this case the testator, C. H. Stark, gives to his wife all his estate, real, personal and mixed, and at her death to W. S. Byers all his estate as aforesaid, charged with certain specific legacies.

“ The auditor is of the opinion that this claim is not a charge on the land and should not be allowed, out of the fund here for distribution.”

On the other question the auditor quoted the opinion of the learned judge below filed at an earlier stage of the case. On that opinion and the portion of the auditor’s report quoted the decree is affirmed.


author: Per Curiam,

text:
    Safe Deposit & Title Guaranty Company of v. Linton, Appellant. Kittanning

      Deed — Mortgage—Defeasance—Recording—Act of June 8, 1881, P. L. 84.

    Where a grantee in a deed absolute on its face, executes subsequently to the deed a paper in which he agrees to pay a mortgage with interest then due, to advance a sum stated, and to pay the taxes on the land, and thereafter to reconvey the property to the grantors when they should refund the amount advanced with interest and costs, such paper is a defeasance; but if it is not recorded within sixty days from its date as provided by the Act of June '8, 1881, P. L. 84, it cannot be admitted to convert the deed into a mortgage.
    Argued Oct. 10, 1905.
    Appeal, No. 113, Oct. T., 1905, by defendant, from decree of O. P. Armstrong Co., June T., 1904, No. 139, on bill in equity in case of Safe Deposit and Title Guaranty Company of Kittanning v. P. R. E. Elwina Linton and A. F. Linton.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for partition.
    Patton, P. J., filed tbe following opinion:
    On December 30, 1901, tbe defendants, by deed of general warranty, conveyed to tbe plaintiff two-thirds of a tract of land in Perry township, Armstrong county, containing 307 acres.
    On February 3, 1902, the plaintiff gave to the defendants the paper which is the foundation of the present controversy. It was acknowledged the same day but was not recorded until June 5, 1903. It is not denied that the defendants are the owners of at least one-third of 'the' real estate in controversy. ■The pláintiff claims to own the two-thirds by reason of the deed of December 30, 1901, which is a deed for the real estate regular and absolute on its face. The defendants, while admitting this deed, allege that it is held subject to the paper of February 3, 1902, which they call a deed or declaration of trust. This is the issue before us and must be determined upon the proper construction of the paper of February 3,1902.
    This paper is out of the ordinary; it is in a class of its own, yet it has all the earmarks of a defeasance and falls within every definition of a mortgage. The grantee agrees to pay a mortgage of $6,500, with interest from July 3, 1899, then due, to advance at least $20,000 more, and to pay the taxes assessed upon the land conveyed, and agrees to recbnvey the property to the grantors when they refund the amount advanced by the grantee, with interest and costs. It is a pledge of the land described in the agreement, by the grantor to the grantee, and is to revert to the grantor on the discharge of the obligation for the performance of which it is pledged. Hence It is a mortgage: Lance’s Appeal, 112 Pa. 456; Moran v. Munhall, 204 Pa. 242.
    The paper of February 3, 1902, contains conditions upon the performance of which the estate created would have been defeated or totally undone, and prior to the act of June 8, 1881, would have reduced the deed of December 30, 1901, to a mortgage. But it was not recorded within sixty days of its execution, hence it runs into the very jaws of the Act of Juno 8, 1881, P. L. 84, which provides: “ That no defeasance to any deed for real estate regular and absolute on its face, made after the passage of this act, shall have the effect of reducing it to a mortgage, unless the said defeasance .... is recorded .... within sixty days from the execution thereof.”
    The law is well settled that since the act of June 8, 1881, a written defeasance signed by the grantee, but unacknowledged and unrecorded, will not be admitted to convert such deed into a mortgage: Sankey v. Hawley, 118 Pa. 30; Molly v. Ulrich, 133 Pa. 41; Grove v. Kase, 195 Pa. 325; Crotzer v. Bittenbender, 199 Pa. 504; Lohrer v. Russell, 207 Pa. 105.
    The question was forever set at rest by the decision of the Supreme Court in Sankey v. Hawley, 118 Pa. 30, that court saying in words that cannot be misunderstood: “ There is now but ono method left by which a deed absolute can be reduced to a mortgage, and that method in this case has not been pursued. . . . If we give effect to this act, an act in no wise ambiguous, it is certain the defeasance offered on part of the defense was properly rejected.”
    Feeling constrained by these authorities to reject the defeasance of February 3, 1903, the defense falls with it.
    The defendants further contend that their case falls within the rulings of Goodwin v. McMinn, 193 Pa. 646, and is controlled by it. But that case is clearly distinguishable from the one before us. There the allegation of the grantor was that the deed was procured by fraud and that fraudulent use was being made of the conveyance. It is stated clearly in the opinion of the court: “ He did not set up an agreement as a defeasance to the deed, and which had the effect of changing its absolute character into a conditional one, for the security of a debt or a contingent future liability.”
    There is no allegation in the answer, or proof offered to show fraud on the part of the grantee. The plaintiff offers a deed absolute on its face. The defendant offers to show a defeasance not recorded as required by the act of 1881, which we are required by the provisions of that act, and the authorities under it, to reject and thereby the defense falls.
    And now, April 7, 1905, let a decree be drawn for the partition of the land described in the bill and the appointment of a master to make partition thereof.

      Error assigned was the decree of the court.

      E. A. McCullough, with him H. A. Heilman, for appellants.

      George B. Gordon, of Balzell, ¡Scott Gordon, with him James H. McCain and W. J. Christy, for appellee.
    October 80, 1905 :
   Per Curiam,

This judgment is affirmed on the opinion of the court below.


text:
    Strieker v. McDonnell, Appellant.

      M ortgage — Bond—Debt—Satisfaction.
    A bond and mortgage are separate obligations though for the payment of the same debt. The mortgage though in fact usually the more important item in the transaction is in form and legal effect only collateral security for the bond, and suit, judgment and satisfaction upon it, is not a discharge of the obligation of the bond unless the debt itself is satisfied.
    A bond and mortgage were given to secure a portion of the purchase money for real estate. The mortgage after, reciting the bond continued as follows: “Now this indenture witnesseth that the said party of the first part as well for and in consideration of the premises as of the aforesaid debt .... and for the better securing the payment thereof unto the party of the second part executors, administrators and assigns in discharge of said obligation above recited .... have granted,” etc. Held, that the effect of the words “in discharge of the said obligation above recited,” i. e., the bond, was not that a sale under'the mortgage was a satisfaction of the bond.
    Argued Oct. 11, 1905.
    Appeal, No. 118, Oct. T., 1905, by defendant, from judgment of C. P. Cambria Co., Sept. T., 1904, No. 274, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Clara Y. Strieker and Oscar .1. Strieker, executors of Julius Strieker, deceased, v. J. J. McDonnell.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias to revive a judgment.
    Rule for judgment for want of a sufficient affidavit of defense.
    From the record it appeared that in October, 1892, J. J. McDonnell gave a bond and mortgage for $2,700 to secure payment of balance of purchase money due Dr. Julius Strieker. McDonnell defaulted in payment of amount covered by the bond and mortgage, a sci. fa. was issued upon the mortgage, a judgment entered thereon, execution issued and the property sold for $25.00 to the mortgagee. Subsequently judgment was confessed upon the bond. The plaintiff having died, his executors were substituted and caused a sci. fa. to issue for the purpose of reviving and continuing the lien of said judgment. To this action an affidavit of defense was filed in which it was alleged that the bond was canceled and the debt discharged by the sale had through proceedings upon the mortgage. The terms of the mortgage are stated in the opinion of the Supreme Court.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Mrror assigned was the order of the court.

      Thomas J. Itell, for appellant.

      Frederick A. Sobernheimer, for appellees, was not heard.
    October 30, 1905:
   Per Curiam,

A bond and mortgage are separate obligations though for the payment of the same debt. The mortgage though in fact usually the more important item in the transaction is in form and legal effect only collateral security for the bond, and suit, judgment and satisfaction upon it, is not a discharge of the obligation of the bond unless the debt itself is satisfied: Ayres v. Wattson, 57 Pa. 360.

Tlie mortgage in the present case, which was for part of the purchase money of the same land conveyed by plaintiff’s testator to defendant, after reciting the bond, continued : “Now this indenture witnesseth that the said party of the first part, as well for and in consideration of the premises as of the aforesaid debt .... and for the better securing the payment thereof unto the said party of the second part, executors, administrators and assigns in discharge of the said obligation above recited .... hath granted,” etc. The appellant claims that the effect of the words “ in discharge of the said obligation above recited,” i. e., the bond, is that a sale under the mortgage is a satisfaction of the bond. But there is nothing in the language to sustain such a departure from the presumed purpose in giving the double obligation, nor is any such intention of the parties set forth in the affidavit of defense, which rests the satisfaction on the claim as a conclusion of law that the sale under the mortgage “ operates as a legal and just extinguishment and payment of the said indebtedness.” But this is not the legal and usual operation of such a sale, nor as already said is the language such as to imply an intention of the parties to that effect. On the contrary, the words as already quoted are “ in consideration of the premises (the recital of the debt and the bond) as of the aforesaid debt .... and for the better securing the payment thereof.” It is the payment of the debt which is to discharge the other obligation, to wit: the bond, to which the mortgage is legally only a collateral security. Though the wording is a little different the purpose is the same that is expressed in the more common form.

Judgment affirmed.


text:
    McCullough v. Ford Natural Gas Company, Appellant.

      Ejectment — Assumpsit—Action—Corporation.
    Where the manager of one company wrongfully turned gas into the line of another company of which he was president, the former company may maintain assumpsit against the latter for the gas without previously establishing title to the well from which the gas was produced by an action of ejectment. The defendant’s possession in such a case is not adverse.

      Argued Oct. 11, 1905.
    Appeal, No. 154, Oct. T., 1905, by defendant, from judgment of C. P. Armstrong Go., Dec. T., 1904, No. 122, on verdict for plaintiff in case of R. A. McCullough, Receiver of the Manufacturers’ Natural Gas Company v. The Ford Natural Gas Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover the value of natural gas. Before Thomas, P. J., specially presiding.
    At the trial the jury returned a verdict for plaintiff for $1,566.68.
    On the rule for a new trial Thomas, P. J., filed the following opinion:
    While a number of reasons, mostly with reference to the answers of points, are assigned for the granting of a new trial, but two were urged therefor upon argument. It was urged there, as upon the trial, that the plaintiff must first establish his title to the well from which the gas was produced by an action in ejectment before bringing this action for compensation for the gas taken; and, secondly, that the plaintiff had mistaken his form of action, as assumpsit would not lie.
    There is no doubt but that if defendant were in adverse possession under a claim of title, that question must first be determined by an action of ejectment before an action for the gas taken would lio, and such is the trend of all of the authorities cited by defendant upon this subject. The trouble with this case is that the facts do not meet the very necessary element of being in adverse possession.
    The fact is that the plaintiff company placed its supervising manager in charge of the property, and it never had any notice of any adverse claim of title until this suit was brought. The said manager happened to be the president of the defendant company, if, indeed, he was not the company itself. Now, the said manager could not turn over to himself, as president, without right or authority, the property of plaintiff without any notice, and then claim that the company of which he is president holds or claims to have an adverse title.
    John Wick, Jr., was the manager of the company that owned this well. If he, as president of the defendant company, undertook to acquire title or possession, or both, of the well and did- so without any authority of law, he got for the defendant no title, and the defendant company had ample notice thereof and was bound thereby. The defendant took no title and was bound to know that fact and cannot set up such claim of title for the purpose' of putting plaintiff to his possessory action. No such title is so acquired as to require an action of ejectment to try it. As well might a gas company enter a stranger’s' property and take gas therefrom having first taken a lease from one of its own officers who assumed to act as attorney in fact for the real owner, but had no such authority conferred upon him, and then, when sued for the value of the gas taken, attempt to raise the question of adverse title. The knowledge of John Wick, Jr., was the knowledge of the defendant company, and this being • true, they were bound to know, as the testimony shows, that it had no claim of title which it could possibly interpose to prevent recovery and require a determination of by a possessory action. From their own showing as to claim of title, there is nothing to be tried by ejectment.
    As to the second question raised, it will be readily admitted that assumpsit will not lie to try title to the product of real estate where defendant is in possession under a claim of title. That was not the question involved, and we trust defendants would more readily appreciate their position if they once came to see that they were not in adverse possession, but what actual possession they had was by the act or permission of plaintiff’s manager and for the purpose of conveying the gas from the said well to its own line. It is true that' the same man was defendants’ president, and that seems to have been confusing enough to lead defendants to believe that the action taken by that individual was the action of the defendant company, without regard to the relation he bore to the plaintiff’s company. John Wick, Jr., was plaintiff’s manager, and when he as such and without any notice to the plaintiff that he was acting in any other capacity, turned the gas into the defendant’s line, his conduct was not other as relates to the defendant of which he was president, than if he had been an entire stranger to defendant and only acting in the capacity of an officer of plaintiff. Indeed, the defendant is in a worse position if possible, for it was bound by all the knowledge of the rights of plaintiff within the knowledge of its president, which knowledge was undoubtedly more extensive than defendant would ordinarily have been able to acquire with reference to a company whose members were all strahgers.
    We really have the fact of plaintiff’s manager turning its gas over to defendant who receives and consumes the same, and in such case is liable to answer for the value thereof in assumpsit as on an implied or constructive contract. But had defendant taken and consumed the gas without permission of plaintiff’s officer, the plaintiff might waive the tort and sue in assumpsit.
    We find here the relation existing to be that of the plaintiff owning the well of the defendant using the gas, and in possession to no other extent than was necessary for the purpose of taking and using the gas. This is a state of facts from which the jury should imply a promise to pay.
    In the case of Hertzog v. Hertzog, 29 Pa. 465, the court says, after defining constructive, implied and express contracts: “ The law ordinarily presumes or implies a contract whenever this is necessary to account for other relations found to have existed between the parties. . . . Every induction, inference, implication, or presumption in reasoning of any kind, is a logical conclusion derived from, and demanded by, certain data or ascertained circumstances. If such circumstances demand the conclusion óf a contract to account for them, a contract is proved; if not, not.”
    The facts in this case were ample to support a contract by presumption or implication, without the proof of an express contract.
    The very transaction of defendant with plaintiff’s manager in acquiring the gas was itself a promise and would support an action of assumpsit.
    As was said in the case of Adams v. Columbian Steamboat Company, 3 Wharton, 75 : “The transaction includes the promise to pay, if the article is obtained. I do not say it is inferred. Though nothing is said, the transaction is itself a promise, as distinctly understood as if uttered; but if it was an inference, still it was for the jury and not for the court.”
    Had the act of defendant been one purely of trover and conversion, it being shown that plaintiff converted the gas, plaintiff might have waived the tort and sued in assumpsit, the same as where there is a contract express or implied: 2 Ency. PL and Pr., p. 1022; Boyer v. Bullard et al., 102 Pa. 555; Bethlehem Borough v. Perseverance Fire Company, 81 Pa. 445; Pryor v. Morgan, 170 Pa. 568.
    We are persuaded that both of these questions must be decided against the contention of defendant, and as no other was raised upon argument the rule is discharged and a new trial is refused.
    Judgment was entered on the verdict. Plaintiff appealed.

      Errors assigned were various instructions including refusal of binding instructions for defendant.

      M. E.- Reason and O. E. Harrington, for appellant.

      H. A. Heilman, with him R. A. MeOullough, for appellee.
    October 30, 1905 :
   Per Curiam,

This judgment is affirmed on the opinion of the court below refusing a new trial.


text:
    Sontgen, Appellant, v. Kittanning & Ford City Street Railway.

      Negligence — Street railways — Infants—Nonsuit.
    In an action against a street railway company to recover damages for the death of a child five years old, run over by a car, a nonsuit is properly entered, where the only witness who saw the accident testified that the child was playing behind a pile of earth about five or six feet from the track and suddenly ran out on the track when the car was not more than four feet away.
    Argued Oct. 11, 1905.
    Appeal, No. 166, Oct. T., 1905, by plaintiff, from order of C. P. Armstrong Co., Sept. T., 1903, No. 4, refusing to take off nonsuit in case of Paul Henry Sontgen v. Kittanning & Ford City Street Railway Company.

      Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for the death of a child five years old.
    The opinion of the Supreme Court states the facts.

      Error assigned was refusal to take off nonsuit.

      B,. A. McCullough, with him II. A. Heilman and J. H Daugherty, for appellant.

      Ross Reynolds, with him James II. M.c Cain and. W. J. Christy, for appellee.
    October 30, 1905 :
   Per Curiam,

The evidence failed to show any negligence on the part of the defendant. The only witness called who saw the accident testified that the child was playing behind a pile of earth about five or six feet from the track and suddenly ran out on the track when the car was not more than four feet away. The case belongs to the class of Chilton v. Central Traction Co., 152 Pa. 425 ; Funk v. Electric Traction Co., 175 Pa. 559; Kline v. Electric Traction Co., 181 Pa. 276 ; Callary v. Easton Transit Co., 185 Pa. 176, and Miller v. Union Traction Co., 198 Pa. 639.

As this is decisive of the whole case the other questions do not require notice.

Judgment affirmed.


author: Per Chriam,

text:
    Brundred, Appellant, v. McLaughlin.

      Evidence — Facts—Opinion—Witness—Ejectment.
    In an action of ejectment the only question involved was the location of a boundary lino. A surveyor who made investigations on the ground was asked this question: “Where, in your opinion, is the line between Nos. 83 and 84?” The trial court ruled that as the investigation made by the witness on the ground was for the purpose of ascertaining the boundary line, and as he had given the facts as he learned them, he should be permitted to answer the question. Held, to be proper, inasmuch as the evidence was not a mere opinion of the witness, but a summary of his observations on the ground, and therefore testimony to a fact.
    Argued Oct. 11, 1905.
    Appeal, No. 103, Oct T., 1905, by plaintiffs, from judgment of C. P. Venango Co., Aug. T., 1903, No. 2, oh verdict for defendants in case of Benjamin F. Brundred and Elizabeth L. Brundred v. James E. McLaughlin et al.
    Before Mitchell, C. J., Fell, Brown, Mestre.zat, Potter, Elkin and Stewart, J J.
    Affirmed.
    Ejectment for land in Cranberry Township. Before Criswell, P. J.'
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendants. Plaintiffs appealed.

      Error assigned among others was the admission of testimony referred to in the opinion of the Supreme Court.

      J. H. Osmer, with him A. R. Osmer, N. F. Osmer and Trax Parker, for appellants.

      C.I. Heydrick, with him F. A. Sayers and J. L. Nesbit, for appellees.
    October 30, 1905:
   Per Chriam,

The only question involved in this case was one of fact, to wit: the location of the boundary line between the plaintiff’s land and the adjoining land of the defendant’s. All of the evidence was relevant to that issue and it was correctly submitted to the jury.

The only assignment of error that we need notice specially is the second, to the admission of the question to the surveyor Reed, “ Where in your opinion is the line between No. 83 and 84 ? ” To the objection the court said that the investigation made by the witness on the ground was for the purpose of ascertaining the boundary line and having given the facts as he learned them he would be permitted to answer the question. The judge therefore admitted this, not as a mere opinion of the witness but as a summary of his observations on the ground, and therefore as testimony to a fact. This is in accordance with the authorities: Jackson v. Lambert, 121 Pa. 182.

Judgment affirmed.


author: Pee Cubiam,

text:
    Wilkinson’s Estate.

      Will — Probate—Marriage—Legitimacy—Evidence.
    On a petition to set aside the probate of a will, the petitioner alleged that she was a daughter of the decedent entitled to participate in his estate. The marriage of the decedent and the petitioner’s mother was denied. The only direct evidence of the marriage was that of an inmate of an old woman’s home who did not know how old she was, but who testified in 1902, to a marriage between testator and petitioner’s mother at sometime she could not remember, but assenting to a suggested date of 1857, 1858 or 1859, at a house where the witness was then living as an indentured servant. She had not seen the testator since the marriage, and she professed to identify him by a photograph taken thirty odd years after she last saw him. The alleged wife she had never seen before or since, and she identified her from a photograph (when taken not shown) “only by the way her hair is fixed and the earrings and the ugly mouth.” The witness did not remember the justice of the peace who performed the marriage ceremony. She remembered the name of the owner of the house, and that some of his family were present at the wedding, “some in the garret and some down in the cellar. ” Public records produced in evidence showed that the witness’s apprenticeship had expired ten or eleven years prior to the date of the alleged marriage, and several members of the family referred to by the witness testified that they never knew the testator nor petitioner’s mother, and that no such marriage ever took place in their house. There was evidence that in 1864 the testator married another woman and lived with her as his wife until her death, and in the same year the petitioner’s mother married another man. There was no evidence of a divorce. Held, that the evidence was insufficient to go to a jury on the question of the petitioner’s legitimacy.
    Argued Oct. 18, 1905.
    Appeal, No. 25, Oct. T., 1905, by Emma T. Scott, from decree of O. C. Beaver Co., refusing an issue devisavit vel non in estate of James Wilkinson, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition to set aside the probate of a will. Before Wilson, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree refusing an issue.

      8. L. Webb, with him W. A. McOonnel, for appellant.

      Agnew Mice and J. Rankin Martin, for appellee, were not heard.
    November 4,1905 :
   Pee Cubiam,

It may be conceded that there was enough testimony to go to a jury that the petitioner was a daughter of the testator, but the weight of the evidence was against her legitimacy. The marriage of her mother and her putative father was not only not proved but was clearly disproved. The only direct evidence of the marriage was the testimony of a woman from the Old Woman’s Home in Covington, Kentucky, who did not know how old she was nor when she came to this country, but who testified in 1902 to a marriage between the testator, Wilkinson and the appellant’s mother, Sarah Taylor, at some time she could not remember, but assented to a suggested date of 1857, 1858 or 1859, at the house of Mr. Steele in Chester county. The testator she had not seen since that date and she professed to identify him by a photograph taken thirty odd years after she last saw him. The alleged wife she had never seen before or since that one occasion, and she identified her from a photograph (when taken not shown) “ only by the way her hair is fixed and the earrings and the ugly mouth.” The witness could not remember the name of the squire who performed the marriage ceremony and the only name about which she was positive was that of the owner of the house, John D. Steele. Some of his family were present at this wedding, she said, “ some in the garret, some down in the cellar.”

This flimsy story might well be turned out of court without more, but it was met by evidence from the records of the superintendent of charities of Philadelphia that the witness Sarah Nicholson, whose maiden name was Sarah Hamm, was indentured to Mr. Steele in 1833, andher time having expired in 1847 she was not at his home at any time within ten or eleven years of the date of the alleged marriage of Wilkinson ; and by convincing testimony from several members of the Steele family that they never knew either the testator or Sarah Taylor, and no such marriage ever took place in their house.

There were declarations of the testator, and other collateral matters bearing on the principal fact, but it is a favorable view to the appellant to say that the inferences to be drawn from them lead both ways. Two facts, however, raise a presumption against the appellant that has great weight. The marriage was assumed to have taken place in 1857, 1858 or 1859, but it was shown that in 1864 the testator married another woman and lived with her as his wife until her death, and in the same year Sarah Taylor married another man. There was no evidence of a divorce and the presumption is strong against the commission of bigamy by both parties.

On the question of testamentary capacity the testimony of the lawyer who drew the will is convincing. But as the petition wholly failed to show any standing to contest there is no need to discuss that branch of the case.

The decree is affirmed with costs to be paid by appellant.


text:
    llonora Southern Railroad Company v. Pennsylvania Railroad Company, Appellant.

      Railroads — Right of way — Disputed title — Equity—Injunction.
    Where a railroad company organized under the general railroad law of Pennsylvania enters upon lands and lays its tracks with the consent of a person who had long been in possession of the lands under a claim of title, and thereafter takes title to such land from the person in possession, another railroad company which has acquired an adverse title to the land has no right to enter upon them and tear up the tracks of the first company, and if it does so it will be restrained by injunction from a repetition of such action, but such injunction will be subject to the right of the parties to establish their rights in the land in a court of law.
    Argued Oct. 20, 1905.
    Appeal, No. 49, Oct. T., 1905, by defendant, from decree of C. P. Washington Co., No. 1421, in equity in case of Donora Southern Railroad Company v. Pennsylvania Railroad Company, Lessee of Pittsburg, Virginia & Charleston Railway Company and Pittsburg, Virginia & Charleston Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      •Bill in equity for an injunction. Before McIlvatne, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court.

      A. M. Todd, with him Jas. A. Wiley, for appellant. — The conclusion reached by the court below that the mere survey through a man’s property and the passing of a resolution by the board of directors adopting a route for its railroad is sufficient to make such a location as would be conclusive upon the landowner, or his successor in title, is erroneous : Neal v. P. & C. R. R. Co., 2 Grant, 137; Western Penna. R. R. Co. v. Johnston, 59 Pa. 290; Harrisburg Borough v. Crangle, 3 W. & S. 460 ; Graham v. R. R. Co,, 145 Pa. 504.
    The weight of authority appears to be that the right to recover damages is personal to the owner at the date of the entry: McFadden v. Johnson, 72 Pa. 335; Davis v. Railway Company, 114 Pa. 308, without regard to any previous action by a board of directors establishing a route. If such entry was made without an attempt to agree with the owner, or the giving of a bond, but with the owner’s consent, the railroad would not be such a trespasser as would prevent the court from intervening for its protection and allowing damages to be assessed nunc pro tunc : Oliver et al. v. P. V. & C. Ry. Company, 131 Pa. 408; McClinton v. Railway Company, 66 Pa. 404; Railroad Company v. Warrell, 122 Pa. 613; Railroad Company v. Cooper, 105 Pa. 239; if, however, the entry is resisted by the landowner, the railroad necessarily is a trespasser and “ the owner is not bound to suffer an unlawful intrusion, and afterward fight an unequal battle for compensation : ” McClinton v. Railroad Company, 66 Pa. 404.
    In order to justify the taking of any portion of this land, it would become necessary for the plaintiff to show an absolute necessity for such taking. The land had been purchased by the defendants for corporate uses and the testimony discloses that it was necessary for the conduct of its business. Under such circumstances, it could not be arbitrarily appropriated by the Donora Southern Railroad: Pennsylvania Railroad Company’s Appeal, 93 Pa. 150; Pittsburg Junction Railroad Company’s Appeal, 122 Pa. 511; Sharon Railway Company’s Appeal, 122 Pa. 533.

      The question raised by the bill and answer presented a “ substantial dispute ” as to the only point at issue, to wit: the ownership of the land itself, and it was the duty of the court, if it did not think fit to pass upon this question, to call to its aid the judgment of a jury and award an issue for the determination thereof: Smith and Fleck’s Appeal, 69 Pa. 474.
    The plaintiff had acquired no right of way through the defendants’ property and its entry thereon was a trespass and the defendants were justified in resisting it.

      Samuel Mc Clay, with him J. H. Murdoch, T. F. Birch and Heed, Smith, Shaw $ Beal, for appellee.
    The title of a railroad company is derived not through the tendering or the filing of a bond, but by its original entry and appropriation without objection, and a release of the damages operates not by way of an original conveyance, but by way of discharge of the damages incurred by the entry and construction of a railroad. The permanent location of a railroad is an appropriation of the ground and vests the right to the damages assessed : Lawrence’s Appeal, 78 Pa. 865; Beale v. Penna. R. R. Co., 86 Pa. 509 ; Neal v. Pittsburg & Connellsville R. R. Co., 2 Grant, 137; Wadhams v. Lackawanna & Bloomsburg R. R. Co., 42 Pa. 303; Pittsburg, Virginia & Charleston Ry. Co. v. Com., 101 Pa. 192; Hagner v. Pa. Schuylkill Valley R. R. Co., 154 Pa. 475 ; Johnston v. Callery, 184 Pa. 146; Williamsport, etc., R. R. Co. v. Philadelphia, etc., R. R. Co., 141 Pa. 407.
    The court below had jurisdiction of this case for the purpose of protecting the appellee’s legal rights and determining the question in whom the title was vested: Bussier v. Weekey, 11 Pa. Superior Ct. 468.
    If Joseph Bamford did not have a good title to the land in dispute at the time of the entry, the appellee should have a reasonable time to perfect its condemnation: Oliver v. Pitts-burg, Virginia & Charleston Ry. Co., 131 Pa. 408 ; McClinton v. Ry. Co., 66 Pa. 404; Wheeling, etc., R. R. Co. v. Warrell, 122 Pa. 613; Philadelphia, etc., R. R. Co. v. Cooper, 105 Pa. 239.
    November 4, 1905:
   Pee Cueiam,

This was a bill for injunction against a threatened repetition of the action of defendant in tearing np the tracks of the plaintiff, and incidentally for assessment of the damages for the acts already committed.

The title to the land was in dispute. In 1902, plaintiff, a Pennsylvania corporation, located its route and constructed a portion of it on this land by agreement with one Bamford who was then and had been for many years in possession under claim of title. On May 21* 1904, Bamford conveyed the land to plaintiff which had previously constructed additional tracks to those built in 1902.

In 1903 the defendants’ lessor acquired an adverse title to the land, but, as found by the court below, with knowledge of Bamford’s possession. And the defendants made no claim to title prior to 1903, and no effort to take possession until May 16, 1904, when it entered and tore up complainant’s rails.

On these facts the court found as conclusions of law:

“ 1. That in 1902 the plaintiff company had power to take and condemn a right of way across the land, without regard to who owned it, and having found Bamford in long possession, it had entered and built part of its tracks with his consent.
“ 2. That defendants’ lessor when it acquired title in 1903 took subject to a visible easement thereon, and cannot now call in question the legality of the plaintiff’s previous entry and appropriation.
“ 3.- That this is not an ejectment suit and that it is not necessary for the court to adjudicate the title to the land.
“4. That the plaintiff company was in possession of its right of way under permission from one who was in possession under color of title and who made a claim of title that had such a reasonable basis as would put the defendant companies who never were in possession, at least so far as the ground covered by the right of way was concerned, to an action at law to test their rights. The defendant companies took the law into their own hands and undertook by force to redress what they claimed was an invasion of their rights, and in addition they threaten a repetition of this force, if the plaintiff company should attempt to restore the tracks destroyed. In doing so they committed a wrong, the repetition of which should be restrained.
“5. That an injunction should issue, and damages should be assessed at $1,000, but that the injunction granted and the findings of fact and conclusions of law, which are held to justify it being granted, are not to prejudice the right of either of the parties hereto to establish, maintain or defend in a court of law its title and right of possession to the said 6.73 acres of land described in the fourth paragraph of the plaintiff’s bill, or any part thereof, or its legal or equitable right of possession to the strip of land over and across said tract of land covered by the location of the plaintiff company’s main line and branch B.”

On these findings and conclusions the decree is affirmed.