author: Mr. Justice Potteb,

text:
    Clough v. Welsh, Appellant.

      Ejectment — Common source of title — Evidence.
    1. In ejectment when both parties claim title under a common source, it is unnecessary to make proof of title beyond that source; nor can either party attack such source of title. '

      Judgment — Lien—Forest county — Act of May 20, 1857, P. L. 612.

    2. A judgment entered in Jefferson county on November 17, 1857, became a lien on land in that part of the county which was separately organized for judicial purposes as Forest county on December 21, 1857, although the act authorizing such organization was passed on May 20, 1857.

      Sheriff’s sale — Sheriff’s deed — Irregularities—Curing defects.

    3. Irregularities in the issuance of the writ of fieri facias and venditioni exponas or in the sheriff’s return to the former are cured by the acknowledgment of the sheriff’s deed in open court.

      Tax sales — Seated land — Unseated land.

    4. Where the plaintiff in an ejectment relies upon a tax title, and the defendant seeks to avoid such title by showing that the lands were seated at the time of the assessment of the taxes, the latter must not only show that the lands were seated, but he must also show affirmatively that at the time of the assessment there was sufficient personal property on the premises liable to seizure to pay all the taxes assessed thereon.
    Argued Oct. 5, 1910.
    Appeal, No. 28, Oct. T., 1910, by defendant, from judgment of C. P. Forest Co., Feb. T., 1908, No. 7, on verdict for plaintiff in case of L. S. Clough v. James C. Welsh.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Ejectment for land in Howe township, Before Bouton, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (1-32) various rulings on evidence and instructions.

      Frank J. Thomas, with him Albert L. Thomas, for appellant.
    The authority of the treasurer to make sale of lands, either seated or unseated, is derived wholly from statute and must under all circumstances be strictly adhered to: Smith v. McGrew, 4 W. & S. 338; Simpson v. Meyers, 197 Pa. 522; Shearer v. Woodburn, 10 Pa. 511; Miller v. McCullough, 104 Pa. 624; Kean v. Kinnear, 171 Pa. 639.
    Evidence that the tax for which the land was sold was due and unpaid for one whole year at the date of the sale by the treasurer was a necessary prerequisite to the validity of the treasurer’s sale and the omission of appellant to show this was a fatal defect in this link of his chain of title: Laird v. Hiester, 24 Pa. 452; McReynolds v. Longenberger, 57 Pa. 13; Hubley v. Keyser, 2 P. & W. 496; Greenough v. Fulton Coal Co., 74 Pa. 486.
    The plaintiff was bound to show that the land was unseated at the time of the alleged assessment.
    The sheriff’s sale of 1858 was invalid: McCullough’s App., 34 Pa. 248; Neil v. Colwell, 66 Pa. 216; Lippincott v. Tanner, 1 Miles, 286.
    That the entire proceedings are void because of the issuance of the execution before the entry of a judgment, which is not a mere irregularity, seems clear on both reason and authority: Cummins v. Holmes et al., 109 Ill. 15; Cutler v. Wadsworth, 7 Conn. 6; Jackson et al. v. Hasbrouck, 12 Johns. (N. Y.) 213; Van Ness v. Cantine & Radcliff, 4 Paige’s Chan. (N. Y.) 55; Briggs v. Ward-well, 10 Mass. 356; Penniman v. Cole, 49 Mass. 496; Wells v. Stout, 9 Cal. 479.
    January 3, 1911:
    It was clearly shown that there was an abundance of personal property upon the premises at the time of the sale: Davis v. Beers, 204 Pa. 288; Simpson v. Meyers, 197 Pa. 522.

      D. I. Ball, with him A. C. Brown, for appellee.
    It is well settled, that when two adverse parties claim title from the same common source, it is not necessary to trace title back of that common source: Rhines v. Baird, 41 Pa. 256; Turner v. Reynolds, 23 Pa. 199; Clark v. Trindle; 52 Pa. 492; McGrew v. Harmon, 164 Pa. 115.
    The act of May 20, 1857, did not organize the county of Forest for judicial purposes, but merely gave authority to the people of that county so to organize by the election of judicial officers: McCullough's App., 34 Pa. 248.
    The objection to the writ of testatum venditioni ex-ponas issued to the sheriff of Forest county is not tenable, as the identical question is raised and decided in Neil v. Colwell, 66 Pa. 216.
   Opinion by

Mr. Justice Potteb,

This was an action of ejectment brought by L. S. Clough against James C. Welsh, to recover possession of a tract of some 1,100 acres of land in Howe township, Forest county, being Warrant No. 5282. Under binding instructions of the trial judge, the jury found a verdict in favor of the plaintiff, and from the judgment entered thereon, the defendant has appealed. We do not think it necessary to take up in detail each of the thirty-two assignments of error which have been filed. In the abstract of title filed by plaintiff, and in the evidence offered by him on the trial, he showed title out of the commonwealth to Alexander Thompson, a number of tax sales being in the line of title. In the abstract of title filed by defendant, he claims title first by adverse possession, and secondly by grant in 1904, from the heirs of Alexander Thompson. On the trial defendant offered no testimony whatever to sustain his claim to adverse possession, but he did offer in evidence his deeds from the Thompson heirs. Notwithstanding the fact that the only evidence of title offered by defendant on the trial was based on the title in Thompson, yet he attempted to attack the validity of some of the tax sales in the line of the Thompson title. As both parties were claiming under Thompson, the trial court was undoubtedly right in holding, as set forth in its opinion sur motion for new trial, that “the pleadings in this case clearly show that the plaintiff and defendant both claim under a common source, to wit, from Alexander Thompson. Such being the case, it does not lie in the defendant’s mouth to question the title of said Thompson.” The only effect of permitting defendant to invalidate the Thompson title would have been to deprive him of any standing whatever. The authorities are clear that when both parties claim title under a common source, it is unnecessary to make proof of title beyond that source. In Riddle v. Murphy, 7 S. & R. 230, Justice Gibson said (p. 235): “Both parties claim under the same title; it is too clear, therefore, for argument, that the plaintiffs were not bound to trace back their title beyond Cornelius Murphy (under whom both claimed). If there was a title adverse to his either in the commonwealth or a third person, it lay on the defendant to show it.” In Patton v. Goldsborough, 9 S. & R. 47, where the opinion is by Chief Justice Tilghman, the syllabus reads: “Where both plaintiff and defendant derive title from the same person, who had been seized of the premises, it is not necessary that the plaintiff should show a title out of the commonwealth:” Turner v. Reynolds, 23 Pa. 199, and Clark v. Trindle, 52 Pa. 492, are to the same effect. It was therefore unnecessary for plaintiff to show title prior to 1855, when Alexander Thompson became seized of the land in controversy, and the question as to the regularity of prior tax sales was immaterial.

One of the links in plaintiff’s subsequent chain of title is the record of a sheriff’s sale of the land in question, under a judgment against Alexander Thompson. The judgment was in favor of Thomas E. Brown, and was entered by confession on November 17, 1857. A praecipe for a fieri facias was filed, upon which a writ was issued, attested September 18, 1857, to which the sheriff made a return that he had levied on certain real estate, including the land here in question. On December 21, 1857, Forest county, where the land was situated and which had been previously a part of Jefferson county, acquired a separate existence for judicial purposes: McCullough’s App., 34 Pa. 248. On July 26, 1858, a praecipe for a testatum venditioni exponas to the sheriff of Forest county was filed in Jefferson county, and a writ issued which was attested May 14, 1858. At the sale under this writ the property was purchased by the plaintiff, James E. Brown, to whom the sheriff duly acknowledged and delivered a deed. When the record of- the judgment and execution, and of the sheriff’s sale, were offered in evidence upon the trial, defendant’s counsel objected, and filed seven reasons therefor. Of these objections only two are now pressed. The first of these is that, as Forest county was set apart as a separate judicial district by the Act of May 20, 1857, P. L. 612, a judgment entered in Jefferson county on November 17, 1857, would not be a lien on land in Forest county. But this contention is answered by the decision of this court in McCullough’s App., 34 Pa. 248, in which it was held that the act of May 20, 1857, did not organize the county of Forest for judicial purposes, but merely gave authority to the people of that county to so organize, by the election of judicial officers; and that the county of Forest was not organized for judicial purposes until December 21, 1857. That a writ of testatum venditioni exponas issued to the sheriff of Forest county under the circumstances was a proper writ appears from the decision in Neil v. Colwell, 66 Pa. 216.

In the second place, counsel for appellant contend that the sheriff’s sale was illegal because the writ of fieri facias is tested September 18, 1857, while the judgment was apparently not entered until November 17, 1857. It does appear from the record, however, that the pra>cipe for the fieri facias was filed November 17, 1857, the same day the judgment was entered. Therefore the writ could not have been issued two months before the praecipe for its issuance was filed.

Counsel for appellee also point out the fact that the writ of fieri facias recites the recovery of the judgment and the amount of it, which would also be impossible if the writ had been issued two months before judgment was entered. It is apparent that the entry of the date September 18, is either a clerical error or else, as is also suggested by counsel for appellee, the prothonotary in issuing the writ, followed the common-law practice of testing it as of the first day of the term. The same practice seems to have been followed in the case of the testatum venditioni exponas; for there the prsecipe was filed July 26, 1858, while the writ issued in pursuance of that prsecipe seems to bear date May 14, 1858, more than two months earlier. But in any event, we are satisfied that the trial judge was right in holding that, whatever irregularity there may have been in the issuance of the testatum venditioni exponas was cured by the acknowledgment of the sheriff’s deed in open court. In Cock v. Thornton, 108 Pa. 637, Mr. Justice Clark said (p. 640): “In numerous cases it has been held by this court that the acknowledgment of a deed is a judicial act, and concludes all mere irregularities, however gross, in the process and sale. After acknowledgment, the validity of the title acquired by the purchaser cannot be questioned in any collateral action involving the title, except for the absence of authority or the presence of fraud in the sale. This question was elaborately considered in Shields v. Miltenberger, 14 Pa. 76, where the authorities are collected and reviewed by Mr. Justice Bell, and that case is followed by many others. ... In this case there was a valid judgment, a regular writ of fieri facias, a levy upon and condemnation of the land, and a venditioni exponas directing the sale. The sheriff had undoubted authority, and no fraud is alleged; the deed if duly executed, acknowledged and delivered will therefore convey the title.” In Mencke v. Rosenberg, 202 Pa. 131, our Brother Mestrezat said (p. 136): “This is a proceeding (an action in ejectment against a purchaser at sheriff’s sale) collateral to that under which the land was sold. The acknowledgment of the sheriff’s deed passed a valid title to the purchaser unless there was fraud or want of authority in the sale. As suggested above, the statute conferred the authority and fraud in the sale is not alleged.”

In the present case it is true that the sheriff’s return to the fieri facias shows a levy on the real estate of the defendant, Alexander Thompson, and does not show inquisition or condemnation. But this would be an irregularity only, which under the authority of. Spragg v. Shriver, 25 Pa. 282, could only be objected to within a reasonable time; that is, before the confirmation of the sale, and the acknowledgment of the sheriff’s deed.

Under the pleadings and the evidence the plaintiff might have relied upon the title derived under the judgment against Thompson, and the sheriff’s sale to James E. Brown, and the subsequent conveyances. But in addition he offered in evidence two treasurer’s deeds for the tract of land in controversy; one under a tax sale in 1888, for arrearages of taxes in 1886 and 1887; and the other deed under a sale made in 1890, for the taxes of 1888. In the thirty-second assignment of error appellant alleges error in the portion of the charge of the court referring to these tax sales, which was as follows: “The defendant seeks to avoid that title by showing that these lands were seated lands at the time of the assessment of the taxes. We say to you that there is evidence bearing on that question and evidence from which the jury might find that the land was in fact seated land, but there is no evidence that there was sufficient property on the premises for the payment of these taxes, liable to be seized and sold for the payment of taxes. As I have said, the burden is on this defendant to show that there was sufficient property upon the premises to pay these taxes in order to avoid the effect of these sales.” And in the twenty-ninth assignment of error, appellant alleges that the court erred in its answer to defendant’s ninth point, which said point and the answer thereto were as follows: “ Ninth. If the jury believe the land was seated in 1888, and further believe from the testimony that there was sufficient personal property on the premises during that year from which the taxes could have been made, then the tax sale of 1890, made on a return of the land for that year as unseated is invalid and cannot be used as a ground of recovery by the plaintiff in this action. Answer: This point is also a correct statement of the law, but it does not apply to this case for the reason there is nothing to submit to the jury upon the question of the sufficiency of the personal property upon the premises upon which the taxes could have been made, so we refuse the point as not being applicable to the case.”

We think the trial judge was right in his view of the evidence in this respect. Even if the land was in fact seated land, the burden was upon the defendant to show affirmatively that at the time the assessment was made there was sufficient personal property on the premises liable to seizure, to pay all the taxes assessed thereon. We do not find evidence to show this fact. The question is not important, as the plaintiff established his title irrespective of these tax sales, and for that reason was entitled to binding instructions in his favor. We see no substantial merit in any of the assignments of error. They are all dismissed, and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Pifer v. Berkey, Appellant.

      Ejectment — Rule to bring ejectment — Practice, C. P. — Pleadings—Act of June 10,1898, P. L. jl5.

    1. A proceeding under the Act of June 10, 1893, P. L. 415. to settle and determine rights and title to land, should conform as nearly as may be to an action of ejectment. Both sides should be required to file abstracts of title and a formal definite issue should be framed setting forth the exact question to be determined by the jury. It is improper practice to proceed to trial merely' upon the general averments of the petition and answer treated as the pleadings in the case.
    2. If, however, in such a proceeding one of the parties is allowed to go to the jury on the question of title by adverse possession, and also of title by parol purchase followed by possession and valuable improvements, and both claims are insisted upon, a verdict and judgment for the party setting up the claims will not be reversed, although the averments of his answer are ambiguous and leave room for doubt as to whether the possession claimed was open, notorious and adverse as against the other party or possession taken under the alleged parol. sale.
    Argued Oct. 5, 1910.
    Appeal, No. 91, Oct. T., 1910, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1908, No. 257, on verdict for plaintiffs in case of Barbara Pifer et al. v. Josiab L. Berkey.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Issue under the Act of June 10, 1893, P. L. 415, to determine title to land.
    The petition for an issue was as follows:
    The petition of Josiah L. Berkey, respectfully represents:
    That he is a resident of the township of Lincoln, in said county of Somerset.
    That he is the owner in fee simple of a tract of land situate in the township of Lincoln, county of Somerset and state of Pennsylvania, adjoining lands of H. F. Barnett, Hiram Ogline, Harrison Emert, Moses Stern and others, containing ten acres, more or less.
    That your petitioner is the owner of said land by virtue of a deed from Henry F. Barnett, administrator of George Ogline, deceased, dated August 8, 1885, and recorded in the office for recording deeds in and for said county.
    That your petitioner is in the actual possession and occupancy of said tract of land by his tenant at this time, and that your petitioner’s right and title and right of possession are disputed and denied by Barbara Pifer, wife of Frank Pifer, Sarah A. Emert,. wife of Harrison Emert, Wm. H. Howard, John Howard, Annie Durst, wife of Henry Durst, Laura Tospon, wife of Frank B. Tospon, Kate Stern wife of Robert Stern, and Nannie Howard.
    Wherefore your petitioner prays your honor to grant a rule upon the parties above named so denying your petitioner’s right and title and right of possession, to appear before your honorable court at a time to be designated in said rule, to show cause why an issue shall not be framed in said court between the parties to settle and determine their respective rights and title in and to said land, as provided by the second section of the Act of assembly approved June 10, 1893, P. L. 415.
    The answer was as follows:
    For answer to rule to show cause, etc., awarded by your honorable court October 28, 1907, come the respondents and made answer thereto as follows:
    1. The facts set forth in the first paragraph of plaintiffs’ petition are admitted.
    2. The facts set forth in the second paragraph of plaintiffs’ petition are denied.
    3. Your respondents admit that the plaintiff received a deed from Henry F. Barnett, administrator of George Ogline, deceased, dated August 8, 1885, and recorded in the office for the recording of deeds in and for the county of Somerset, but aver that the said plaintiff sold the land in said deed described to Abram Howard immediately after the date of said deed; that said Abram Howard went into possession of said land on or about September 1, 1885, and remained in possession of the same until the date of his death, to wit, May 5,1907, when the title and the possession thereto descended to the respondents who held the possession and still hold the legal possession thereto.
    Your respondents further say, that since September 1, 1885, the possession of said Abram Howard, and your respondents has been continuous and unbroken to the present time, and that their father, Abram Howard, erected a dwelling house, barn and outbuildings on said premises at great expense, and in addition thereto paid the plaintiff the purchase money agreed by him to be paid to the plaintiff, to wit, the sum of $301.
    Your respondents deny the plaintiff was in the actual occupation of said tract of land by his tenant at the time of the filing of this petition, and deny the plaintiffs’ title in the said premises, and further your plaintiffs deny that under the facts as stated in this answer the plaintiff is entitled to an issue.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiffs. Defendant appealed.

      Error assigned was in refusing binding instructions.
    W. H. Ruppel, with him John H. Uhl and C. F. Uhl, Jr., for appellant.
    The authorities are clear that possession of such a character as is shown in this case does not amount to such adverse possession as to establish title: Rush v. Barr, 1 Watts, 110; Rung v. Shoneberger, 2 Watts, 23; Miller v. Keene, 5 Watts, 348; Cadwalader v. App., 81 Pa. 194; Horton v. Davidson, 135 Pa. 186; Hood v. Hood, 2 Grant, 229; Long v. Mast, 11 Pa. 189; McCracken v. Roberts, 19 Pa. 390; Martin v. Jackson, 27 Pa. 504; Bannon v. Brandon, 34 Pa. 463.
    In Pennsylvania, the rule is, that when there are a given state of facts, which are admitted or distinctly-proved, whether the possession is adverse or not, is a question of law: Rung v. Shoneberger, 2 Watts, 23; Miller v. Keene, 5 Watts, 348.
    January 3, 1911:
    While ordinarily the question of adverse possession is to be decided by the jury, yet when the facts relied upon are insufficient to sustain a verdict the court must pronounce upon the evidence as a matter of law and in this case the court should have affirmed appellant’s first point for the reason that the evidence did not justify submission to the jury: Lund v. Brown, 14 W. N. C. 489.
    J. A. Berkey, with him C. L. Shaver, for appellees.
    The fact of possession is for the jury; the kind and length of that possession to be effectual is for the court: Schwab v. Bickel, 11 Pa. Superior Ct. 312.
    There was abundant proof by appellees which justified the jury in finding that the possession was adverse to the appellant: Mercer v. Watson, 1 Watts, 330; Pierce v. Barney, 209 Pa. 132.
    The second ground upon which the appellees claim title is the purchase of the land by their ancestor from the appellant; that their father paid the purchase money prior to his death. While the appellees set up a prescriptive title, they had a perfect right to set up a different claim in case they failed to make out the first.
   Opinion by

Mr. Justice Elkin,

The record in this case is not a very satisfactory one to review for the purpose of determining the exact legal rights of the parties. The confusion results from loose and indefinite pleadings. The subject-matter of the controversy is the title to ten acres of land. Appellant filed his petition in the court below under the Act of June 10, 1893, P. L. 415, setting forth his claim of title to the land in dispute and asked for a rule upon the appellees, who denied his title and right of possession, to show cause why an issue should not be framed to settle and determine the respective rights and title of the parties to said land. Appellees answered, denying title and possession in appellant and claiming both in themselves. After hearing the court directed an issue to be framed to determine the ownership of the ten acre tract of land in dispute, with appellees as plaintiffs and appellant as defendant. No formal issue was framed as the statute requires and the parties went to trial upon the general averments of the petition and answer which were treated •as the pleadings in the case. This practice should not be encouraged although it seems to have been adopted in several counties called to our attention. The statute clearly contemplates the framing of a formal definite issue setting forth the exact questions to be determined by the jury. Both sides should be required to file abstracts of title and the entire proceeding should conform as nearly as may be to an action of ejectment. The title to land is the question to be determined and the verdict of the jury in such an issue has the force and effect of a verdict in ejectment upon an equitable title. All of which indicate the necessity for formal pleadings and definite issues. We have called attention to this question because in several recent cases arising under the act of 1893, and brought before us on appeal, definite issues were not framed and the pleadings were as informal as those in the case at bar. While such records may not constitute reversible error they are not approved. In the present case one of the errors complained of is that appellees were allowed two strings to their bow when they should have been confined to one. In other words, they were allowed to go to the jury on the question of •title by adverse possession, also title by parol purchase followed by possession and valuable improvements. . The case was so tried but in view of the pleadings we cannot say there was reversible error in so doing. It is true that one of the averments in the answer of appellees is that appellant sold the land in controversy to Abraham Howard soon after he, Berkey, had acquired title to the same in 1885, and the evidence shows that the title by purchase was the one mainly relied on by appellees at the trial. We do not agree with the contention of learned counsel for appellant that the evidence was not sufficient to submit to the jury on the question of parol sale followed by possession, erection of buildings and other acts indicating ownership. Wo think the evidence was sufficient for the purpose intended. The learned trial judge in a charge free from just criticism left it to the jury to say whether Howard had taken possession under his parol purchase, or as tenant under appellant. This was the pinch of the case and the court so instructed the jury. The able argument of counsel for appellant has not convinced us that the learned court committed any error in this respect.

There is some doubt whether title by adverse possession was set up under the pleadings. One of the averments of the answer is “that said Abram Howard went into possession of said land on or about the first day of September, 1885, and remained in possession of the same until his death, to wit, May 5, 1907, when the title and possession thereto descended to the respondents who held the possession and still hold the legal possession thereto.” There is another averment that the possession in the Howards has been continuous and unbroken to the present time. These averments, it is true, are somewhat ambiguous and leave room for doubt as to whether the possession was open, notorious and adverse as against appellant or was possession taken under the alleged parol sale. However, both questions were left to the jury and during the entire course of the trial both claims of title were insisted upon. In view of the very general averments of both the petition and answer which formed the pleadings in the case we cannot say that the court committed error in admitting testimony to prove adverse possession and in submitting this question to the jury. This was within the reasonable discretion of the court under the pleadings.

We have examined with care each of the thirteen assign merits of error but deem it unnecessary to discuss them in detail. Our general views hereinbefore expressed cover the important questions raised and are controlling.

Assignments of error overruled and judgment affirmed.


author: Per Curiam,

text:
    Wickes Brothers v. Island Park Association, Appellant.

      Sale — Conditional sale — Machinery—Corporation—Fixtures.
    1. Where machinery is sold to a corporation under an agreement that title shall not pass until all the purchase money is paid, a -purchaser at a receiver’s sale of the corporate property with notice of the conditional sale of the machinery, or a holder of bonds secured by a mortgage given before the machinery was sold, has no higher right to the machinery than the corporation itself; if it appears that the machinery was held in place by bolts and could be easily removed without injury to the building, and that in correspondence between the seller and the purchaser it was referred to as the property of the seller, an intention not to convert the machinery into realty is clearly established.
    2. Mere physical attachment is not the test of annexation. The legal criterion is the intention to annex.
    Argued Oct. 5, 1910.
    Appeal, No. 93, Oct. T., 1910, by defendants, from judgment of C. P. Somerset Co., Sept. T., 1906, No. 225, on verdict for plaintiffs in case of Wickes Brothers v. Island Park Association and Joseph K. Love, intervening defendant.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Replevin for machinery. Before Kooser, P. J.
    The opinion of the Supreme Court states the case.
    The court gave binding instructions for plaintiffs.
    Verdict and judgment for plaintiffs for $3,720. Defendant appealed.

      January 3, 1911:

      Error assigned was in giving binding instructions for plaintiffs.

      W. H. Ruppel, with him C. F. Uhl, Jr., for appellants.

      A. Leo Weil, with him Charles M. Thorp and E. E. Kiernan, for appellee.
   Per Curiam,

The plaintiff sold to the Island Park Association engines and fixtures for the purpose of generating electric light and power. The contract between the parties provided for payments to be made from time to time and that the title to the machinery should remain in the plaintiff until the final payment was made. The machinery was removed from premises in Baltimore, Md., where it had been in use, and shipped to the Island Park Association at Johnstown, Pa., and by it was installed on its property by bolting it to a cement platform. It could have been removed at any time by unscrewing the nuts on the bolts by which it was held in place without injury to the platform or the building which covered it. At the time the machinery was installed the real estate of the association was subject to a mortgage, given to secure an issue of bonds and which covered after acquired property.

On August 6, 1906, the association was in default in its payments and the plaintiff issued a writ of replevin. The association filed a counter bond and retained possession of the machinery, and continued to use it. On October 30, 1906, on petition of creditors of the association a receiver was appointed who sold its real estate to Joseph K. Love, who purchased for himself and other bondholders, but with notice of the plaintiff’s claim and of the proceedings in replevin, and who was afterwards allowed to intervene as a party defendant. At the trial the facts were all agreed upon and the plaintiff abandoned any right it would have to a writ of retorno habendo in the event of a verdict in its favor and elected to recover its loss by an action on the counter. bond. Its contention was that as between it and the association it was entitled to retake possession of the machinery upon the admitted default in payment of the contract price and that the association having retained possession by filing a counter bond, a subsequent purchaser at the receiver’s sale or a bondholder, had no standing except upon the ground that the machinery was a part of the real estate. A verdict was directed for the plaintiff.

The sale was a conditional one and the title did not pass until all the purchase money was paid: Hineman v. Matthews, 138 Pa. 204. A purchaser at the receiver’s sale, with notice, or a holder of bonds secured by a mortgage given before the machinery was sold had no higher right than the association. Whether as between it and the plaintiff, the machinery had become a part of the realty by reason of its attachment thereto, was therefore the only question to be decided at the trial. Mere physical attachment is not the test of annexation. The legal criterion is the intention to annex: Vail v. Weaver, 132 Pa. 363. No such intention could be inferred from the state of facts agreed upon. The title was to remain in the vender until the machinery was paid for; the machinery was held in place by bolts and could be easily removed without the slightest injury to the building and it had been removed from the place where it. was originally installed, to the property of the association; in the subsequent correspondence between the parties in relation to the machinery, it was referred to and evidently regarded by both as the property of the vendor. The intention not to convert the machinery into realty clearly appeared from all the acts and declarations of the parties in relation thereto.

The judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Dentzel v. Island Park Association, Appellant.

      Sale — Personal property — Contract—Delivery f. o. b. — Carriers.
    1. When a contract for the sale of personal property calls for delivery f. o. b. at some particular place, and the seller there delivers the article in accordance with the stipulations, the title to the property at once passes to the buyer, unless otherwise provided. This rule yields, however, where the contract reserves to the seller the right of property, notwithstanding his delivery to the carrier.
    2. Where machinery is sold f. o. b. cars at the place of manufacture, and the complete machinery is so delivered, and there is nothing whatever to indicate that the seller either in the bill of lading, or by any agreement with the carrier or with the purchaser reserved a right of property in the machinery, notwithstanding the delivery f. o. b., the title to the machinery passes immediately on the delivery on the cars and this is the case although a portion of the purchase money was unpaid, and the seller was to send a man to the purchaser’s establishment to install the machinery.
    Argued Oct. 5, 1910.
    Appeal, No. 94, Oct. T., 1910, by defendants, from judgment of Somerset Co., Sept. T., 1906, No. 244, on verdict for plaintiff in case of W. H. Dentzel, Administrator of G. A. Dentzel v. Island Park Association et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Replevin for a carrousel. Before Kooser, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $6,550. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      W. H. Ruppel, with him C. F. Uhl, Jr., for appellants.
    The fact that by the terms of the contract the seller was to send a man to superintend the erection of the machine did not affect the title of the association thereto: Emery v. Scarlett, 8 Pa. C. C. Rep. 123; Andrews v. Weaver, 4 Montg. Co. 110.
    January 3, 1911:
    The title passed on delivery: Leedom v. Philips, 1 Yeates, 527; Bowen v. Burk, 13 Pa. 146.
    The title was perfect notwithstanding the purchase-money remained unpaid: Backenstoss v. Speicher, 31 Pa. 324; Welsh v. Bell, 32 Pa. 12; Mackaness v. Long, 85 Pa. 158; Frech v. Lewis, 218 Pa. 141.

      Charles H. Edmunds, with him Ernest G. Kooser and Edmund E. Kiernan, for appellee.
    The case was ruled by Freeh v. Lewis, 218 Pa. 141; Rice v. Olin, 79 Pa. 391; Cooper v. Whitmer, 18 W. N. C. 376.
   Opinion by

Mr. Justice Stewart,

This case called for binding instructions. The contract between buyer and seller was in writing, and so definite and explicit in its terms that it gave rise to no controversy whatever. It was not attempted to be shown that it had ever been rescinded or modified. G. A. Dentzel, whose legal representative is the plaintiff in the action; was the seller, and the Island Park Association, one of the defendants, was the buyer. The contract provided that the former for the sum of $5,500 was to manufacture for the latter a carrousel, with organ, motor and attachments. The price was to be paid in installments; $250 on the signing of the agreement; $2,500 on the erection of the machine in the park; $900 in sixty days thereafter, and $950 in ninety days- thereafter, notes to be given for the last three payments. The contract provided, among other things, that the seller was to “deliver the complete carrousel f. o. b. cars, Philadelphia, and send one man to erect and place in order;” the party of the-second part agreeing “to pay freight charges.” It is a general rule, not to be questioned, that when the contract in a sale of personal property calls for delivery f. o. b. at some particular place, and the seller there delivers the article in accordance with the stipulations, the title to the property at once passes to the buyer, unless otherwise provided: Schmertz v. Dwyer, 53 Pa. 335; Bacharach & Co. v. Chester Freight Line, 133 Pa. 414; Dannemiller v. Kirkpatrick, 201 Pa. 218. The rule yields where the contract reserves to the seller the right of property, notwithstanding the delivery to the carrier. Since delivery is after all a matter of intention on the part of the seller, even though the contract calls for delivery f. o. b. cars at a designated place of shipment, the seller may before the delivery on board the cars, stipulate with the carrier that the latter is to carry it for him, thereby making the carrier the seller’s agent in receiving the property. This follows when the seller takes from the carrier a bill of lading which secures the shipper against delivery, at the point of destination, to any one except upon his order. When the contract, however, as here, shows an agreement to deliver f. o. b. with nothing to qualify it, the law will presume a delivery to have been in accordance with the stipulations, and cast the burden on the seller if he assert the contrary. There is not a particle of evidence in the case that this burden was discharged. No assertion of dominion over the property, so far as the evidence discloses, was made until after it reached its destination. The plaintiff does not pretend to say that he stipulated either with the defendant or the carrier that his right of property was not to be affected by the delivery to the latter. We find no copy of the bill of lading in the record; but it is distinctly stated in the charge of the court as though it were an uncontroverted fact in the case that the carrousel, “on the 19 June was put on board cars of the Pennsylvania Railroad and shipped to defendant, the Island Park Association.” The learned trial judge adds, “That did not make it, because of this contract, the property of the Island Park Association, at that time, because it was yet subject to the payment of the $2,500 cash upon the erection of the machine upon the premises of the defendant, and a number of days work as has been detailed to you was left to be done on the machine in its erection before it was ready for complete delivery to the Island Park Association.” This was error. If delivery on board of cars was delivery to the park association, as it presumably was, and as it certainly was if the direction was to ship to the defendant association, it is wholly immaterial that the price had not been paid, or that under the contract the seller was yet to put the machine in place; the delivery was a parting with the dominion, and that fact of itself passed the title to the property. In Scott v. Wells, 6 W. & S. 357, it was held to be a general rule, that wherever there has been an absolute delivery pursuant to a bargain perfect in its members, the ownership of the, property is vested by it, and although the terms of sale be cash a subsequent delivery without payment passes the property. The right of reclamation after delivery, exists only in case of fraud or deceit in the purchase, or in procuring the possession: Smith v. Smith, 21 Pa. 367. “When a delivery to a carrier is equivalent to a delivery to a buyer, the condition as to payment or security may be waived by an unconditional delivery to the carrier; but such condition is not waived if the delivery to the carrier is merely conditional, as' when the carrier is instructed not to deliver the goods unless payment is made. The seller may also reserve the right of property in the goods, notwithstanding delivery, by taking a bill of lading in such form as to indicate an intention to reserve the right:” 35 Cyc. of L. & P. 330, and the authorities there cited. Here- the seller did nothing of this kind. Not a single circumstance was shown from which an inference of conditional delivery could be derived. The machine when put on board was complete; nothing remained to be done to perfect it; it was deliverable; and its price was fully ascertained and fixed. That the seller was to contribute the labor of an expert to put it in place and running order did not make it any the less deliverable as a piece of property. The law governing cases of this character was so recently and fully discussed in Dannemiller v. Kirkpatrick, 201 Pa. 218, by our Brother Mestbezat that further discussion here is not required. This may be a hard case; but if so, the responsibility rests not with the law, but upon the losing party who failed to adopt the easy precautions it afforded for his protection. The court’s refusal to give binding instructions for the defendant is the subject of the first assignment, and that assignment is sustained.

We now reverse the judgment on the verdict, and enter judgment for the defendant.


author: Mr. Justice Potter,

text:
    Volk v. Shoemaker, Appellant.

      Bond — Nonnegotiable instrument — Confession of judgment — Assignment of bond — Mo'rtgage—Act of May 16,1901, sec. 5, P. L. 194.

    1. Under the Act of May 16, 1901, sec. 5, P. L. 194, the effect of a provision in a bond authorizing a confession of judgment before maturity is to make the instrument nonnegotiable.
    2. The assignee of a bond who fails to make inquiry, takes it subject to any defense to which it was subject in the hands of the obligor; the same rule applies to the assignee of a mortgage.
    3. Where a person executes a judgment bond and mortgage to another who has no interest in the transaction, and gives no consideration, and whose name is only used to facilitate a loan, and such mortgagee assigns the bond and mortgage to a third person who pays the obligor’s agent a sum much less than the face of the bond and mortgage, and it appears that the obligor never authorized cither the mortgagee or the agent to dispose of the bond and mortgage for anything less than its face value, the assignee is not entitled to the face value of the bond, and if he has entered judgment on the bond, the obligor will be entitled to have the judgment opened so that he may defend against any sum over and above what the assignee actually paid.
    Argued Oct. 6, 1910.
    Appeal, No. 102, Oct. T., 1910, by defendants, from order of C. P. Somerset Co., Sept. T., 1909, No. 148, discharging rule to open judgment in case of Bernard Volk, Jr., use of David Pierce, v. Jane V. Shoemaker and W. R. Shoemaker.
    Before Feel, C, J,, Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    January 3, 1911:
    Reversed.
    Rule to open judgment.
    The facts are stated in the opinion of the Supreme Court.
    The court discharged the rule to open judgment.

      Error assigned was the order of the court.

      W. H. Ruppel, with him C. F. Uhl, Jr., for appellant.—
    The defendant was clearly entitled to have the judgment opened: Huckestein’s App., 3 Pennypacker, 55; Sloan v. Brown, 15 W. N. C. 111; Wilson’s App., 109 Pa. 606; Fisher v. O’Donnell, 153 Pa. 619; Cloud v. Markle, 186 Pa. 614; Schweyer v. Walbert, 190 Pa. 334; Hafer v. Boner, 10 York, 93; Milton Nat. Bank v. Beaver, 25 Pa. Superior Ct. 494; Stockwell v. Webster, 160 Pa. 473; Heimgartner v. Stewart, 180 Pa. 500; Lee v. Sallada, 7 Pa. Superior Ct. 98.

      J. C. Lowry, for appellee.
    This entire matter is one of discretion for the court below and as such cannot be the subject of a writ of error and no appeal lies in an adverse decision: Renninger v. Thompson, 6 S. & R. 1; White v. Leeds, 51 Pa. 187; Gump’s App., 65 Pa. 476.
   Opinion by

Mr. Justice Potter,

This appeal is from the refusal of the court below to open a judgment, entered by confession upon a bond conditioned for the payment of the sum of $3,500 and interest. The bond was dated August 22, 1908, payable in three years. Judgment was entered June 19, 1909, and execution issued the same day. Upon the petition of the defendants, the court below stayed the writ, and granted a rule to show cause why the judgment should not be opened. Depositions upon both sides were taken; and, after a hearing, the court below discharged the rule. It appears from the petition of the defendants, and from the depositions taken in support thereof, that Jane V. Shoemaker and W. R. Shoemaker were the owners of certain real estate in Allegheny county, and through one W. D. Repper, a real estate agent at McKeesport, they agreed to make an exchange with one W. C. Schroeder for a farm in Somerset county, and to pay him in addition the sum of $1,500 in cash. For the purpose of raising this sum, and an additional amount of $2,000, the defendants executed a judgment bond and mortgage for $3,500 to Bernard Volk, Jr., who had no interest in the transaction and gave them no consideration, but simply permitted the use of his name. The bond and mortgage were delivered to Repper in order that he might negotiate them for the purposes stated. It seems that Volk assigned the bond and mortgage to David Pierce, the use plaintiff, under an agreement by which Pierce was to pay $1,500 cash to Repper and $700 more when the bond and mortgage should be paid in full by the obligors; but that Repper paid Schroeder only $1,200, instead of $1,500, the amount agreed to be paid.

In the answer filed by David Pierce it is stated that he afterwards agreed with Repper to pay $1,920 for the bond and mortgage, and that he actually paid that sum. In his deposition W. R. Shoemaker testified that he never authorized Volk or Repper, or any one else, to dispose of the bond and mortgage for anything less than its face value. It is admitted by all parties that Volk, the mortgagee, advanced no money, and had no real interest in the transaction. His name was used merely to facilitate the matter. While the transaction was in form a purchase of a bond and mortgage, yet in substance, and as a matter of fact, it was a loan by Pierce of the sum of $1,920, directly to the mortgagors. The money was paid to Repper, the agent of the mortgagors. There is but little if any dispute as to the material facts, and if the evidence, as set forth in the depositions is to be credited, the plaintiff is not entitled to recover on his judgment more than the amount he loaned, or paid out, for the bond and mortgage, with interest and costs. No copy of the judgment bond was printed in the record, but it is apparent from what is shown, that it authorized the entry of judgment at any time, and, under the Act of May 16, 1901, sec. 5, P. L. 194, the effect of a provision authorizing a confession of judgment before maturity, is to make the instrument nonnegotiable. The assignee of a bond, who fails to make inquiry of the obligor, takes it subject to any defense to which it was subject in the hands of the obligor: Lane v. Smith, 103 Pa. 415; Janes v. Benson, 155 Pa. 489, 492; Stokes v. Dewees, 24 Pa. Superior Ct. 471. The same rule applies to the assignee of a mortgage: Myerstown Bank v. Roessler, 186 Pa. 431; Carothers v. Sims, 194 Pa. 386.

The admitted facts of the present case seem to bring it within the principle laid down in Huckenstein v. Love, 98 Pa. 518. In that case a scire facias was issued by C. H. Love, for use of W. C. Comingo, against John Huekenstein upon a mortgage executed by defendant to the legal plaintiff. The defendant pleaded usury as to a part of the mortgage. Subsequently, Thomas McKee intervened as terre-tenant, and on the trial the jury was sworn against John Huckenstein, with notice to Thomas McKee, terre-tenant. The defendants offered to prove (p. 520) that “Love, the mortgagee, had no interest in the mortgage, and that the money was advanced directly by Mrs. Comingo (the use plaintiff) at a heavy discount.” Also that McKee, the terre-tenant, had no beneficial interest or title in the mortgaged premises, but that he merely held the legal title as a trustee for Huckenstein. These offers were rejected, and the court directed a verdict for the plaintiff for the full amount of the mortgage, with interest. On writ of error the rejection of the offers was assigned for error. Mr. Justice Trtjnkey said (p. 521): “At the trial Huckenstein proposed to prove that Love, the assignor of the mortgage, was merely the broker, and that Mrs. Comingo, the assignee, was the real lender of the money. This offer was overruled for the reason that Huckenstein’s title to the premises had been vested in McKee, and the testimony was irrelevant and inoompetent. Then the defendant proposed to prove (that McKee was not acting for himself, but for Huckenstein). This also was rejected. If true, McKee had only a naked legal title and could have been compelled to convey to Huckenstein, had he refused to convey on demand. He was a trustee, without interest, and with no duty, except to convey the legal title to the actual owner of the land.” It was then held that the offers should have been admitted, and that if Huckenstein was able to show that he was the real owner and that the use plaintiff had actually loaned the money to him, although the mortgage had been made to a broker who had not made the loan, the defense of usury could be set up. The judgment for the plaintiff was reversed and a new venire awarded.

In the present case, the position of Volk corresponds to that of Love in the case just cited; and the place occupied by Pierce is similar to that of Mrs. Comingo. There is no intervening terre-tenant here, so in that respect the defendants are in a better position than was the defendant below in Huckenstein v. Love; and upon the authority of that case, the judgment now under consideration should have been opened, to permit the facts to be shown.

The evidence in this case, upon the part of the defendants, impresses us as going far beyond the point of producing a mere conflict of testimony. We think the defendants have shown by a preponderance of the evidence sufficient to sustain a verdict in their favor, that they had a just defense to a large part of the sum claimed under the judgment. Under such circumstances the defendants should be allowed a trial: Kaier v. O’Brien, 202 Pa. 153; Earley’s App., 90 Pa. 321; Jenkintown National Bank v. Fulmor, 124 Pa. 337.

The order of the court below, discharging the rule to open the judgment, and to let the defendants into a defense, is reversed and set aside; and the rule is now made absolute.


author: Pee Ctjeiam,

text:
    Goller, Appellant, v. Baltimore & Ohio Railroad Company.

      Negligence — Railroads—Passenger—Crossing tracks at station — “Stop, look and listen.”

    One who is struck by a moving train, which was plainly visible from the place where it was his duty to stop, look and listen, will be conclusively presumed to have gone into an obvious danger. This rule applies to a passenger who attempts to cross a double-track railroad at a station when he had, before crossing, an unobstructed view in the direction from which the train came for 800 feet and the engine was then within 200 feet of the plank crossing over which he attempted to go.
    Argued Oct. 6, 1910.
    Appeal, No. 191, Oct. T., 1910, by plaintiff, from judgment of C. P. Somerset Co., May T., 1906, No. 285, on verdict for. defendant in case of Amanda C. Goller v. Baltimore & Ohio Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Kooser, P. J.
    At the trial it appeared that plaintiff’s husband was killed on March 14, 1906, on the north track of defendant’s double track railroad in front of its passenger station in the borough of Confluence.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The trial judge gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.'

      Error assigned was in giving binding instructions for (defendant.

      J. A. BerTcey, with him L. C. Colborn and C. L. Shaver, for appellant.

      January 3, 1911:

      W. II. Koontz, with him J. G. Ogle, for appellee.
   Pee Ctjeiam,

At the station where the accident happened the defendant company had two tracks that extended east and west. The station house was south of the tracks, and a plank walk eight feet wide and twenty-two feet long extended from it across the tracks to a platform on the north side. The deceased bought a ticket twenty-five minutes before the accident and on the approach of the train which was behind time and probably running faster than usual, he walked hurriedly or ran over the plank crossing and was struck by the engine as he was about to step on the platform, on the north side. Before starting across the tracks, he had an unobstructed view in the direction from which the train came for 800 feet and the engine was then within 200 feet of the crossing.

Under these facts shown by the plaintiff’s testimony there is no escape from the conclusion that the deceased either failed to look for the train or saw it and took the chance of crossing in advance of it. The danger was manifest and the rule that one who is struck by a moving train, which was plainly visible from the place where it was his duty to stop, look and listen, will be conclusively presumed to have gone into an obvious danger, applies: Carroll v. Penna. R. R. Co., 12 W. N. C. 348; Myers v. B. & O. R. R. Co., 150 Pa. 386. It follows that it was not error to direct a verdict for the defendant and the judgment is affirmed.


author: Mr. Justice Brown,

text:
    Cannon, Appellant, v. Hileman.

      Payment — Presumption of payment — Will—Devise.
    1. Where a testator six years before his death executes a will by which he devises a church and lot to his daughter “until the congregation pay to my said daughter the balance due me as per settlement, and then to give a clear deed of conveyance of the church to the congregation,” and a devisee of the daughter, sixty-four years after the date of the will, brings an action of ejectment against the church congregation for the lot, she is bound to overcome the presumption of payment by proof not only that no payment had been made to herself or to the testator’s devisee, but also that no payment had ever been made to the testator himself during the six years that elapsed between the making of his will and his death.
    2. All debts, whatever be the evidence of them, are presumed to be paid after twenty years from their maturity and this presumption grows stronger with each succeeding year.
    Argued Oct. 4, 1910.
    Appeal, No. 72, Oct. T., 1910, by plaintiff, from order of C. P. Westmoreland Co., May T., 1907, No. 297, refusing to take off nonsuit in case of Martha Cannon v. C. C. Hileman.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for a lot in Greensburg. Before Doty, P. J»
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Charles E. Whitten and Paul H. Gaither, with them H. E. Curran, for appellant.
    Robert Brown is presumed to have known that his will would be of no force till after his death; therefore he must have intended the payment, if made at all, to be made subsequent to his death: Feather’s App., 1 P. & W. 322; Irish v. Smith, 8 S. & R. 573; Jones’s Est., 211 Pa. 364; Wogan v. Small, 11 S. & R. 141; Donaldson v. Pettit, 31 Pa. Superior Ct. 567.
    The failure, on the part of the church, to accept the devise and pay the condition money within a reasonable time, would be conclusive against its right to do so: Kerns’s App., 120 Pa. 523; Patterson v. Martz, 8 Watts, 374.
    January 3, 1911:

      James S. Moorhead, with him M. N. McGeary, Robe F. Marsh and Robert W. Smith, for appellee.
   Opinion by

Mr. Justice Brown,

Prior to 1822, the title to the property in controversy was in Thomas Hamilton. On February 27th of that year he conveyed it to Robert Brown, the grandfather of the appellant, who claims title to it under the following clause in his will devising it to his daughter Martha: “The Reformed Church and lot in Greensburg I leave to my daughter, Martha Cannon, until the congregation pay to my said daughter, Martha, the balance due me as per settlement, and then to give a clear deed of conveyance of the church to the congregation.” The will of Robert Brown was executed June 29, 1843, and sometime after his death, which occurred in 1849, it was duly admitted to probate. Martha Cannon, his daughter, who died in 1885, gave, by her will, all of her property, real and personal, to her two daughters, Mary Ann, now deceased, and Martha, the appellant. Mary Ann, who died in 1897, left all of her property by will to the appellant. The foregoing is the chain of title set up by her, and from the refusal of the court to take off the judgment of non-suit, directed because the presumption of payment for the lot had not been overcome, we have this appeal.

When the summons in this case was issued fifty-eight years had elapsed from the death of Robert Brown. During all that long period, so far as can be gathered from the record, no effort was made by his daughter or her daughters to recover possession of the property. Sixty-four years had elapsed from the time he made the devise upon which the appellant now relies to establish her title and right of possession. But what are the admissions of the testator, made in. 1843, as they clearly appear in the devise to his daughter? They are that the Reformed Presbyterian Congregation was in possession of the lot; that a church building had been erected on it; that part of the purchase money had been paid in pursuance of some agreement to convey the lot to the congregation, and that, on a settlement made with the testator, there was a balance found to be due him. That the congregation could at any time have paid him this balance and demanded a deed for the property must be admitted. On the argument of this appeal we understood counsel for the appellant to so concede, and after the lapse of. more than fifty years from the death of the testator to the institution of this suit, there is the strongest presumption that the privilege of the congregation to pay him what was due was exercised. Believing that the burden was upon her to overcome the presumption of payment, the appellant undertook to show by testimony — the sufficiency of which we need not discuss — that no payment had been made to Martha Cannon, the testator’s daughter, or to either of her daughters, during the period that elapsed from his death to the institution of this suit. Assuming, as the court below did, that there was, sufficient evidence to rebut the presumption of payment during that period, if believed by the jury, there was no attempt to cover the important gap from June 29, 1843 — the date of the testator’s will — to 1849 — the year of his death. According to his admission by which his granddaughter, the appellant, is bound in this proceeding, there was due him on June 29, 1843, from the congregation on a settlement between them a balance of the purchase money for the lot. This being so, it was the right of his vendee to pay this balance to him in his lifetime, even if he failed to demand it, for it does not appear that there was any agreement between him and the congregation to pay it to his daughter, and after the lapse of nearly sixty years between his death and the attempt of his granddaughter to assert title to the lot, the presumption is that the congregation exercised its right to pay him: Fidelity Title & Trust Co. v. Chapman, 226 Pa. 312. All debts, whatever be the evidence of them, are presumed to be paid after twenty years from their maturity, and this presumption grows stronger with each succeeding year. In the present case, after the great lapse of years between the death of the testator and the attempt of his granddaughter to retake the property, the presumption is almost conclusive that the balance of the purchase money was paid to him in his lifetime. As nothing at all was offered to overcome this presumption, the nonsuit was inevitable, and the judgment of the court below in refusing to take it off is affirmed.


author: Mr. Justice Mestrezat,

text:
    Berkey v. Berwind-White Coal Mining Company, Appellant.

      Mines and mining — Coal mining — Surface support — Lateral support— Measure of damages.

    1. Where there is no waiver of surface support, the owner of the surface is entitled to absolute support of his land, not as an easement or right depending on a supposed grant, but as a proprietary right at common law, and this right which the servient estate owes to the dominant estate does not depend on whether the mining operations are conducted skillfully or negligently and carelessly.
    2. If an injury caused by failure to support the surface is reparable or curable with reasonable effort and expense less than the value of the property, the measure of damages is what it will cost to make the repairs. If the injury is permanent the measure of damages is the difference in market value of the land before and after the injury inflicted by the mining operations.
    3. The principle that the owner of land has the right to mine and remove his coal without liability for injuries done subterranean streams of water flowing to neighboring land has no application to the right of the owner of the surface against the owner of the coal thereunder to recover damages for injuries to the surface by mine operations.

      Evidence — Cross-examination—Examination in chief.

    4. A party will not be permitted in cross-examination to introduce matters which should have been introduced in the examination in chief, if competent at all.

      5. In an action to recover damages for injuries to surface of land where a witness testifies that he had seen depressions in the surface caused by the removal of coal below, he cannot on cross-examination be asked whether he had not in another case, concerning different land, testified that he had seen depressions due to the removal of coal, and that subsequently it had been ascertained that no coal had been removed from the land in question.
    Argued Oct. 6, 1910.
    Appeal, No. 195, Oct. T., 1910, by defendant, from judgment of C. P. Somerset Co., May T., 1908, No. 77, on verdict for plaintiff in case of Henry A. Berkey v. Berwind-White Coal Mining Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for injuries to surface caused by coal mining operations. Before Kooser, P. J.
    At the trial when Daniel Ott was on the stand on cross-examination, the following offer was made:
    Mr. Ruppel: We propose to ask the witness whether he did not testify in the case of Jacob L. Manges v. The Berwind-White Coal Mining Company for damages to the surface of a tract of land in the same vicinity as the land of the plaintiff in this case; and to .ask the witness whether he did not testify in that case that there were depressions on the surface plainly visible which had been made by the surface sinking down after the removal of the coal; to be followed by proof that the witness did so testify, unless he admits the same in his answer, and by further proof that subsequent to that time the coal under the said Manges tract was removed and at the time the witness testified in said trial there had been no coal removed from said farm, and consequently there could have been no depression. This for the purpose of contradicting the witness’s testimony and showing that he may be mistaken in his belief as to the depressions and the surface in this case. We also propose to ask the same question to such other witnesses as may be called by the plaintiff who did testify in the Jacob L. Manges case.

      Mr. Val. Hay: This is objected to as inadmissible and irrelevant and immaterial; it relates to depressions on another farm and another tract of land and is improper cross-examination.
    The Court: We think this improper cross-examination and refuse to permit the question to be propounded to the witnesses, and note an exception to the defendant. [1]
    C. P. Collins on cross-examination was asked this question:
    Mr. Ruppel: Now, Mr. Collins, isn’t it a fact, that with such cover as there was over this coal, in the ordinary mining of coal by driving in headings and running off rooms and leaving pillars of coal standing sufficient for ordinary support of the surface, isn’t it a fact that the roof of the mine will occasionally break in?
    Mr. Greer: We object to that as not being proper cross-examination.
    The Court: I don’t think it is proper and sustain the objection and note an exception to the defendant. [2]
    Mr. Ruppel: Now, Mr. Collins, if the coal remained intact on the Henry A. Berkey farm, and all the coal were mined out on the adjoining tracts, north, south, east and west, what would be the effect on the springs on the Henry A. Berkey farm?
    Mr. A. L. G. Hay: This is objected to as being improper cross-examination.
    The Court: We think if admissible at all, this is part of your case, and sustain the objection and note an exception to the defendant. [3]
    E. A. Delaney took the stand for defendant:
    Mr. Ruppel: We now propose to prove by the witness on the stand and others that mining operations were carried on under this farm by the latest and most approved methods of mining, and under the supervision of competent mine bosses, and with frequent inspection of the mines by the mine inspector and other state officers, and that the mining was done in a prudent, careful, skillful and workmanlike manner, and that the springs of water would have been affected on this farm practically to the same extent if no pillars or ribs had been removed under the farm, and that the loss of water on the farm was not due to any careless, negligent or unskillful mining and removing of the coal.
    Mr. Greer: This is objected to as being incompetent, irrelevant and immaterial testimony; it is an absolute duty of the party mining to afford absolute support to the overlying strata, which duty is a continuing one and existing even though to perform it every pound of coal should have to remain in the land. Good or bad mining in no way affects this legal duty, and therefore is not a defense in this action. It is further objected to that the second part of the said offer is impossible to prove and would be purely speculative, and it would be a mere guess without anything supporting it, and in addition to the foregoing objection, we add this as to the latter part of the offer, unless it is to be followed by evidence to support the mere opinion that would make it something other than a guess.
    The Court: We admit the evidence under so much of the offer as undertakes to prove the method and character of mining operations on the farm, and that the springs would have been affected to practically the same extent if even the pillars had not been drawn, but we exclude the latter part of the offer which seeks'to show that the loss of the water was not due to unskillful mining alone under the Henry A. Berkey farm, and note an exception to the plaintiff and defendant and seal a bill. [4]
    M. D. Reel, witness on the stand for defendant:
    Mr. Ruppel: We propose to prove by the witness on the stand and others that for several years last past beginning about 1904, and continuing down to this time throughout different sections of Somerset county, the springs have not furnished a continuous flow of water to the same extent that they formerly did; that many springs during this period have gone dry during certain seasons of the year that were never known to be dry before; that particularly within the last couple of years there has been a marked decrease in the flow of springs during certain portions of each year and this in regions that were unaffected entirely by the mining and removal of coal.
    Mr. Greer: We object to this as incompetent, irrelevant and immaterial.
    The Court: We cannot go into an inquiry as to the general condition of springs in the county, the offer is to prove that some of them have a diminished quantity of water in the last few years, and particularly in the last two years, but will permit proof to the effect of the flow of springs within a reasonable radius of the Henry A. Berkey farm, within that same basin, but not at the distance offered by this witness as twelve or fourteen miles away, and note an exception to the defendant and plaintiff. [5]
    The court charged in part as follo.ws:
    [But if in mining the coal the defendant has dropped the surface, and the dropping of the surface has occasioned cracks and destruction of the overlying strata, or such condition of things as that the water was lost by that reason, by reason of the failure of the defendant company to do what it was bound to do, to wit, to support the surface, then the plaintiff is entitled to recover by reason of the injury sustained, and to such loss as he has sustained and to such extent as he may have satisfied you he has suffered. That is to say, if it had appeared there had been no subsidence or sinking of these overlying strata by reason of the mining and removal of the coal, or if the springs were not destroyed by reason of failure to provide surface support, then there could be no recovery for the loss of the springs. But if the failure to furnish the surface support to which the plaintiff was legally entitled caused subsidences, and the subsidences caused fissures, cracks, and general disturbances of the strata; if the springs were lost in that way by the operations upon this farm, the plaintiff has a right to recover for them.] [6]

      [But if the mining operations on either of these parts I have designated to you caused subsidences of the soil, and depressions, the defendant is liable for the depressions; and if by the depressions thus caused, cracks were made through what is called sometimes the superincumbent mass, that is from the mine to the surface, and if by the breaking up either by cracks or by the crushing of these various strata which lie one upon another, the water was conducted away from the springs, the plaintiff is entitled to recover for the injuries to the springs.] [7]
    Plaintiff presented this point:
    2. [That if the jury shall find from the evidence that plaintiff’s springs were injured, and depressions and cracks made in the surface of his farm, as a result of the mining and removal of the coal by the defendant company, and its failure to support the surface of his land in its natural state, plaintiff is entitled to recover damages.] [8] Answer: That may be affirmed; that is practically what is said above. [8]
    Defendant presented these points:
    1. Under the pleadings and all the evidence in the case the verdict must be for the defendant. Answer: The first point without reading it to the jury we decline. [9]
    2. The burden is on the plaintiff to establish every element of his case by a preponderance of the evidence and as the uncontradicted evidence shows that there was no mining done under that part of the farm which contains the subterranean stream or stratum supplying water to the spring at the house and the spring at the fish dam and the other spring near it, prior to September 16, 1904, and as the plaintiff has also established by his own testimony and by the evidence of other witnesses that whatever loss of water there was to these springs occurred as early as September 16, 1904, therefore under the pleadings and all the evidence there can be no recovery for alleged damages to the spring at the house or the two springs near the fish darn as the plaintiff has clearly established that whatever loss of water there might have been to these springs was occasioned by some other cause than the removal of the coal on plaintiff’s farm. Answer: The first part of that point which reads as follows: “The burden is on the plaintiff to establish every element of his case by a preponderance of the evidence” is affirmed and the balance declined. [10]
    3. The only evidence in the case upon which the jury could rely to find that there was a depression in the surface or the breaking of the strata above the mine on any part of the plaintiff’s farm which would affect the springs at the house and fish dam is the evidence on the part of the plaintiff which relates to the depression in plaintiff’s farm south of the buildings and east of the public road, and if the jury find from the evidence that there was no subsidence of the surface at that point then they are instructed that they cannot in this action allow for damages for loss of water at the springs at the house and fish dam. Ansvjer: The third point is declined. [11]
    4. Even if the jury believe that there were at different places on plaintiff’s farm depressions caused by the subsidence of the surface by reason of the removal of the coal underneath, yet if these injuries to the surface could bo repaired with reasonable effort and expense the measure of damages would be what would be required to be expended for such remedy and as the plaintiff has not proved what such damages would be or what such necessary expense would amount to, the jury cannot in this case allow for any such claim for damages. Answer: You will observe, gentlemen, that the plaintiff’s last point was: That “when the injury is permanent, the measure of damages is the difference in the market value before and after the injury,” and we have affirmed that. Now this raises another question. That is to say, what would be the measure of damages if the injury was reparable or curable? The rule to measure damages differs in injuries to real estate. Where a thing is irreparable and permanent, can’t be repaired, the rule is as I stated to you, the difference between the value of the property before and after the injury, but if the injury can be repaired with a reasonable effort and expense less than the value of the property (you couldn’t carry the expense for repairs beyond the value of the whole), then the measure is not the difference in value of the farm, but it is what it would cost to make the repairs. And it is true, there has been no proof here of what it would cost to repair it, and if it is reparable there being no proof of the cost of repair, you cannot allow for it. But the counsel for the plaintiff rely entirely on the theory that it is a permanent and irreparable injury. That is to say that the depressions are not only visible on the mere open surface, but they have continued through to the mine, affecting more or less all the stratification from the depression to the mine. If it can be repaired to as good condition as it was before, of course the plaintiff could only recover proven cost of repairs, and no such testimony was offered; but if it is a permanent injury that cannot be restored to as good condition as before, the cost of repairs would have nothing to do with the measure of damages at all. The measure would still remain as I have given you in the last point of the plaintiff — the before and after values. Of course, if the jury find the injury reparable, then this fourth point of the defendant would operate to the relief of the defendant in the case. If you find the injury is permanent and not reparable, then the fourth point of the plaintiff states the true measure of damages. [12]
    5. Under the pleadings and all the evidence in the case there can be no recovery for alleged damages to the dwelling house or the spring at the dwelling house. Answer: I refuse that point. [13]
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Errors assigned were (1-5) rulings on evidence, quoting the bill of exceptions; (6-13) above instructions, quoting them, and (14) refusal of defendant’s motion for judgment n. o. v.

      W. H. Ruppel, with him C. F. Uhl, Jr., for appellant.—
    The question to Ott should have been allowed: Ott v. Houghton, 30 Pa. 451; Hopkinson v. Leeds, 78 Pa. 396; Fulton v. Central Bank, 92 Pa. 112; Reading & P. R. R. Co. v. Balthaser, 126 Pa. 1; Long v. Ins. Co., 137 Pa. 335; Lentz v. Carnegie, 145 Pa. 612; Derk v. Ry. Co., 164 Pa. 243; Beck v. Hood, 185 Pa. 32; Com. v. Farrell, 187 Pa. 408; Com. v. Bell, 4 Pa. Superior Ct. 187.
    In conducting extensive mining operations, it is in general impossible to preserve the flow of the subterranean waters through the interstices in which they have usually passed, and many springs must be necessarily destroyed in order that the proprietors of valuable minerals may enjoy their own. The public interest is greatly promoted by protecting this right, and it is that the imperfect rights and lesser advantage should give place to that which is perfect, and infinitely the most beneficial to individuals and to the community in general: Wheatley v. Baugh, 25 Pa. 528; Winnett v. Coal & Coke Co., 37 Pa. C. C. Rep. 489; Haldeman v. Bruckhart, 45 Pa. 514; Coleman v. Chadwick, 80 Pa. 81; Trout v. McDonald, 83 Pa. 144.

      Valentine Flay and C. C. Greer, with them A. L. G. Hay, for appellee.
    The court ruled properly on the questions asked on cross-examination: Glenn v. Traction Co., 206 Pa. 135; Hughes v. Westmoreland Coal Co., 104 Pa. 207; Hildeburn v. Curran, 65 Pa. 59; Buck v. McKeesport, 227 Pa. 10; Griffith v. Eshelman, 4 Watts, 51; Com. v. Craig, 19 Pa. Superior Ct. 81; Bohan v. Avoca Borough, 154 Pa. 404; Jackson v. Litch, 62 Pa. 451; Bank v. Roessler, 186 Pa. 431; Elliott v. Boyles, 31 Pa. 65; Beck v. Hood, 185 Pa. 32; Lenahan v. Coal Mining Co., 221 Pa. 626; Hopkinson v. Leeds, 78 Pa. 396; Turner v. Reynolds, 23 Pa. 199; Breinig v. Meitzler, 23 Pa. 156; Helser v. McGrath, 52 Pa. 531; Thomas v. Loose, 114 Pa. 35; Fulton v. Bank, 92 Pa. 112.
    Plaintiff was entitled not to ordinary support, but to “absolute support:” Coleman v. Chadwick, 80 Pa. 81; Youghiogheny River Coal Co. v. Bank, 211 Pa. 319; Carlin v. Chappel, 101 Pa. 348; Noonan v. Pardee, 200 Pa. 474; Kellert v. Coal & Iron Co., 226 Pa. 27; Robertson v. Coal Co., 172 Pa. 566; Miles v. Coal Co., 214 Pa. 544; Weaver v. Berwind-White Coal Mining Co., 216 Pa. 195; Dignan v. Coal & Coke Co., 222 Pa. 390; Jones v. Wagner, 66 Pa. 429; Wheatley v. Baugh, 25 Pa. 528; Haldeman v. Bruckhart, 45 Pa. 514; Trout v. McDonald, 83 Pa. 144.
    January 3, 1911:
   Opinion by

Mr. Justice Mestrezat,

In 1892 the plaintiff and his wife conveyed to Robert H. Sayre all the coal and minerals underlying a tract of land in Paint township, Somerset county, containing about 120 acres, together with certain surface and mining rights and privileges Tor the removal of the coal. There was nothing in the conveyance, however, to authorize the grantee to injure or disturb the surface, or any waiver by the grantors of damages arising from injury to the surface by reason of the mining and removal of the coal. The defendant company is, and has been for some time, mining the coal under a lease from Sayre’s grantee. The appellant, the defendant company, has failed to print the statement but we learn from the charge of the court and the history of the case that this action was brought to recover damages for injuries resulting to the surface in mining the coal. The plaintiff alleges that the defendant has removed the coal without properly supporting the surface, which has resulted in depressions and subsidences in the surface, and the loss of certain trees and springs of water on the land. ' The learned trial judge submitted the case to the jury, and a verdict having been rendered for the plaintiff, judgment was entered thereon.

After a careful review of the record, we fail to find any merit in any one of the numerous assignments of error. The first, second and third assignments allege error in sustaining objections to certain questions by the defendant propounded to the plaintiff’s witnesses on cross-examination. The question covered by the first assignment had no tendency to disclose the bias or interest of the witness, as contended by defendant, and the answer would have simply introduced a matter wholly collateral to the issue being tried by the jury. The testimony sought to be elicited by the questions covered by the second and third assignments should have been introduced in chief by the defendant if competent at all at any stage of the proceeding. These assignments need no further discussion. They are not sustained.

The fourth, sixth, seventh and eighth assignments raise the question of the right of the defendant under its lessor’s purchase to remove the coal regardless of injuries thereby done the surface. It is contended by the defendant company, as we understand, that it is liable for injuries done the surface by the removal of the coal only in the event that the mining operations are conducted carelessly and negligently, and that no responsibility for injury done the surface by reason of the failure to support it arises if the mining is done in a prudent, careful, skillful and workmanlike manner. This position is wholly untenable and directly in the teeth of all our cases on the subject. We have repeatedly held that where there is no waiver of surface support, as here, the owner of the surface is entitled to absolute support of his land, not as an easement or right depending on a supposed grant, but as a proprietary right at common law, and that this right which the servient estate owes to the dominant estate does not depend on whether the mining operations are conducted skillfully or negligently and carelessly. The learned judge was therefore entirely right in holding that it was the duty of the defendant company to furnish absolute support to the plaintiff’s surface, and if by reason of failing to do so injury resulted to the surface, the company was responsible. The plaintiff’s right to recover did not depend upon whether the mining operations were conducted prudently and skillfully or carelessly and negligently, but whether by reason of the failure to properly support it, the surface was injured. In view of the numerous decisions of this court sustaining this position, further discussion of the question is unnecessary. These assignments are without merit and are dismissed.

The court went quite far enough in admitting the testimony under the offer set out in the fifth assignment. The part excluded was clearly incompetent and should not have been admitted.

An examination of the evidence convinces us that the tenth and eleventh assignments should not be sustained. The evidence was for the jury and was properly submitted. The twelfth assignment relates to the measure of damages. The learned judge correctly disposed of the matter covered by this assignment. He distinctly told the jury that if the injury was reparable or curable with reasonable effort and expense less than the value of the property, the measure of damages was what it would cost to make the repairs. He further instructed them that there had been no proof offered by the plaintiff of what it would cost to make- the repairs and “if it. is reparable, there being no proof of the cost of repair, you cannot allow for it.” He also told the jury in answer to a point, and very properly so, that if the injury was permanent the measure of damages was the difference in the market value of the farm before and after the injury inflicted by the mining operations. This assignment is dismissed.

The same disposition must be made of the thirteenth and fourteenth assignments, which complain substantially that the court erred in not directing a verdict for the defendant.

From its argument, the defendant company seems to have misapprehended the law applicable to the facts of this case. The simple question for adjudication here was the right of the plaintiff to the absolute support of his surface and the liability of the defendant for damages resulting' from failure to furnish such support. As we have said, the law of this state is so well settled that there should not now be any dispute in regard to it. The rights of the owner of the surface against the owner of the coal thereunder must not be confused with the right of the owner of an adjacent tract of land to mine and remove his coal without liability for injuries done subterranean streams or waters flowing to his neighbor’s land. In the latter case the owner of the adjacent land is not liable to his neighbor unless the springs or waters were cut off or diverted by his malice and negligence. The owner of the coal cannot be deprived of it or of the right to mine and remove it by the fact that his neighbor may be deprived of the subterranean waters or streams which will thereby be diverted and prevented from flowing through his land. Mining operations by an owner upon his own land may interfere with and destroy springs upon his neighbor’s land by reason of the interference with the filtration or percolation of the water through the owner’s land, but such injury is damnum absque injuria, and unless it is occasioned by negligence or by malice the neighbor has no recourse for such injury. This principle, however, is wholly inapplicable to the facts of this case, as we have suggested, and cannot defeat a recovery in this action.

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


text:
    Second National Bank of Pittsburg v. Hoffman, Appellant.

      Promissory notes — Indorser—Fraud—Act of May 16, 1901, P. L. 194 — Banks and banking — Cashier—Interested icitness — Qwstion for fury.

    1. In an action by a bank against the indorser of a promissory note where the defendant shows that the note was procured from him by fraudulent act of the maker, the burden is upon the bank to show affirmatively that it was an innocent purchaser for value without knowledge of the fraud. If in assuming such burden the bank presents as its only witness its own cashier, the case must go to the jury so as to permit that body to pass upon the credibility of the cashier, although his testimony may not in any way have been contradicted.
    2. When the establishment of a question of fact depends upon oral testimony, the credibility of the witness or witnesses is for the jury alone, and it is their exclusive province to determine whether from such testimony the fact in dispute has been established.
    Argued Oct. 6, 1910.
    Appeal, No. 199, Oct. T., 1910, by defendant, from judgment of C. P. Venango Co., Aug. T., 1908, No. 83, on verdict for plaintiff in case of Second National Bank of Pittsburg v. Taylor Hoffman.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Assumpsit on a promissory note. Before Crisswell, P. J.
    The opinion of the Supreme Court states the facts of the case.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $5,329.46. Defendant appealed.

      Error assigned amongst others was (6) in giving binding instructions for plaintiff.

      Geo. E. Reynolds, with him Bryan H. Osborne, for appellant.
    Although a holder is deemed prima facie to be a holder in due course, yet when, as in this case, it was shown that the title of the person negotiating the instrument was defective, the burden was on the plaintiff to prove that it acquired the title as a holder in due course: Schultheis v. Sellers, 223 Pa. 513; Cummings v. Boyd, 83 Pa. 372; Royer v. Keystone Nat. Bank, 83 Pa. 248; Altoona Second Nat. Bank v. Dunn, 151 Pa. 228.
    The evidence as to whether the plaintiff received the note in good faith and without notice of any defect in the title depended upon the credibility of witnesses and binding instructions for the plaintiff were improper: Reel v. Elder, 62 Pa. 308; Perkiomen R. R. Co. v. Kremer, 218 Pa. 641; Reeper v. Greevy, 5 Pa. Superior Ct. 316; Loeb v. Mellinger, 12 Pa. Superior Ct. 592; Colonial Trust Co. v. Getz, 28 Pa. Superior Ct. 619; McNight v. Parsons, 136 Iowa, 390; Allentown Nat. Bank v. Clay Product Supply Co., 217 Pa. 128; Sloan v. Union Banking Co., 67 Pa. 470; Knight v. Pugh, 4 W. & S. 445.
    January 3, 1911:

      Thomas P. Trimble, of Trimble & Chalfanl, with him John L. Nesbit, R. F. Glenn and Chantler & McClung, for appellee,
    cited: Lonzer v. R. R. Co., 196 Pa. 610; Battles v. Laudenslager, 84 Pa. 446.
   Opinion by

Mr. Justice Brown,

On April 10, 1908, the Second National Bank of Pitts-burg was the holder of the note of W. C. and John M. McKee for $7,000, which matured on that day, but was not paid. A few days later the makers called at the bank and had an interview with its cashier, J. M. Young, who insisted upon payment of the obligation. When informed by them that they could not pay, he told them the bank would not embarrass them, if they would give it collateral security or a satisfactory indorsement, and it was then agreed that they would pay $500 on the note and give a new note with an indorser, payable on demand for the balance of $6,500. Shortly afterwards they made a note, payable on demand, for $6,500, dated April 10, 1908— the date of the maturity of the old note — and upon this new note John M. McKee procured the indorsement of the appellant. This is the obligation in suit. According to the testimony of the appellant, his indorsement was procured by fraud, and the note was fraudulently diverted from the use to which the makers agreed to put it. It was unquestionably delivered to the bank in payment of the balance due on the old note. This appears as clearly from the testimony of the defendant’s witnesses as from those of the bank, and we need say no more of the contention of the appellant that it was given merely as collateral security for a pre-existing debt and subject, therefore, to the rule as to such securities. The sole question to be disposed of is, whether the instruction of the trial judge to the jury to render a verdict in favor of the plaintiff was correct. They were directed to so find, because the court was of opinion that, under all the evidence in the case, it clearly appeared that the bank was an innocent holder of the note, without knowledge of any fraud that had been practiced upon the appellant in procuring his indorsement, and that the jury ought not to be permitted to find otherwise.

A holder in due course of a negotiable promissory note is one who, at the time it was negotiated to him, had no notice of any infirmity in the instrument or defect in the title of the person negotiating it: Negotiable Instruments Act of May 16, 1901, P. L. 194. The fifty-fifth section of that act provides that the title of a person who negotiates an instrument is defective within the meaning of the act when he obtains the instrument or any signature thereto by fraud; and, though the fifty-ninth section declares that every holder is to be deemed prima facie a holder in due course, that same section provides that when it is shown that the title of any person who has negotiated the instrument is defective, the burden is on the holder to prove that he, or some other person under whom he claims, acquired the title as holder in due course, that is, that he took it in good faith and for value and without notice of any defect in the title of the person negotiating it.

The jury would have been justified in finding from the testimony of the appellant that John M. McKee had procured his indorsement of the note in suit by fraudulent misrepresentations. The fraud which had been practiced upon him by McKee, was not denied by the latter on the trial, and the learned trial judge properly told the jury that if the only question for their determination was this fraud they would be fully warranted in finding that it had been perpetrated. This being the situation, there was cast upon the appellee by the plain words of the act of 1901 the burden of proving that it had taken the note in good faith and for value and without any notice of the fraud which had been perpetrated by McKee in procuring the indorsement of the appellant. To discharge this burden, so manifestly upon it, the appellee relied upon the testimony of J. M. Young, its cashier, who testified that he was the only officer of the bank who had anything to do in procuring the note from the McKees, and that he had no knowledge at the time he received it of any fraud that had been practiced upon Hoffman in procuring his indorsement of it. The learned trial judge fully understood that the burden was upon the bank to show that it had acquired the note without any notice or knowledge of the fraud upon Hoffman, and so charged the jury, but at the same time directed them to return a verdict for the plaintiff, because no witness had been called by the defendant to show any knowledge by the bank of the misrepresentations made to Hoffman, and the cashier had denied any knowledge of them. The defendant was not required in the first instance to show that the bank had knowledge of the false representations made by McKee to him, for after he had shown, as he clearly did show, that the fraud had been practiced upon him, the bank was called upon to show affirmatively that it had no notice of the fraud when it took the note in good faith and for value; and whether it had so taken the paper depended entirely upon the testimony of its cashier. In directing a verdict for the plaintiff the court, in effect, instructed the jury that they must believe that witness, and evidently, as we gather from the opinion refusing a new trial, relied as authority for this instruction upon Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610. We have many times said that when the establishment of a question of fact depends upon oral testimony, the credibility of the witness or witnesses is for the jury alone, and it is their exclusive province to determine whether, from such testimony, the fact in dispute has been established: Grambs v. Lynch, 20 W. N. C. 376; Harlow v. Borough of Homestead, 194 Pa. 57; Bartlett v. Rothschild, 214 Pa. 421; Fry v. National Glass Co., 219 Pa. 514. There is nothing in the case before us to take it out of the foregoing rule. What was said in Lonzer v. R. R. Co. seems, and especially of late, to be misunderstood. All that was there decided was that when testimony not in itself improbable is not at variance with any proved or admitted facts, or with ordinary experience, and comes from a witness whose candor there is no apparent ground for doubting, a jury will not be permitted to indulge in a capricious disbelief of such testimony. By “candor” the learned justice who wrote the opinion unquestionably meant “credibility,” and the credibility of a witness is always more or less affected by his interest in the matter in controversy. In the present case a fair inference to have been drawn by the jury was that the cashier of the bank was very much interested in the result of the suit. After the note of the McKees had matured and they wished to renew it he insisted upon its payment, unless they would secure it by collaterals or indorsement. Hoffman, the appellant, was then suggested to him as an indorser, and later on the note was received by him bearing the appellant’s indorsement, which had been fraudulently procured from him by McKee. The cashier of the bank, its most active officer, had, after insisting upon payment of the old obligation, succeeded in procuring a new one from the McKees, bearing the indorsement of Hoffman, for the balance due on the old one; and does it require a demonstration to show that he may have been a witness deeply interested in the result of the suit which was to determine whether his bank should be paid by Hoffman or lose what the McKees owed it? If he was interested, his credibility under none of our cases could have been taken from the jury. Upon his testimony alone the right of the bank to recover depended; for the burden was upon it to show that it had no notice of McKee’s fraud upon Hoffman, and it did not attempt to show this by any other witness.

We are not to be understood as intimating that any interest the witness may have had or felt in the result of the trial did actually affect his credibility. All that we decide is that, under the circumstances and under the rule as to oral testimony, his credibility was for the jury alone, with their attention directed to the fact that his testimony was uncontradicted and that they could not capriciously disregard it. If under such instructions they should have found that the witness had or felt such an interest in the suit as affected his credibility, and a verdict had been returned for the defendant, the finding would have meant only that the burden upon the bank had not been discharged by showing by credible testimony what, under the statute, it was called upon to show. If there had been such a finding, it was within the power and discretion of the court below to have set it aside and given the appellee another chance to satisfy a jury by Young’s testimony that it had no knowledge of the fraud committed in connection with the indorsement upon which it relies for recovery; but it by no means follows from this that the court was justified, in the first instance, in usurping the province of the jury: Dinan v. Supreme Council of the Catholic Mutual Benefit Assn., 210 Pa. 456.

The only error committed on the trial of this case was the withdrawal of the material question of fact from the jury for the reason given by the trial judge, and the sixth assignment of error is sustained. There is nothing in any of the others requiring discussion.

The judgment is reversed with a venire facias de novo.