text:
    Mulholland’s Estate.

      Deed — Defective title — Recitals—Notice.
    1. When a purchaser cannot make out his title but through a deed which leads to a fact, he will be affected with notice of that fact.
    2. Where the recitals in a deed show that the grantor has no title, the grantee is affected with notice of the defect of title as soon as he accepts delivery of the deed.

      Executors — Administrator—Trust and trustees — Confirmation of account — Distribution—Proceeds of sale of real estate — Defective title— Mistake.

    3. Where an executor under a power in a will sells an interest in real estate in which the testatrix had no title, files an account, and the proceeds of the real estate with other moneys of the testatrix are awarded to him as trustee, the purchaser of the real estate has no standing, six years after the date of the distribution, to demand that he shall be repaid out of funds in the trustee’s hands, the amount which he had paid for the interest in the real estate. The mistake of law which the parties' made with full knowledge of the facts, will not in such a case entitle the purchaser to equitable relief; nor has the orphans’ court any power to set aside the sale and direct repayment of the purchase money to the executor.
    4. No decree can be made upon a conveyance by an executor or trustee under a power conferred by will, unless the aid of the orphans ’ court is required to supply some omission in the terms of the instrument creating the power; much less can it set aside a sale made in pursuance of a testamentary power.
    Argued March 25, 1909.
    Appeal, No. 391, Jan. T., 1908, by James McDevitt, Executor, from decree of O. C. Phila. Co., April T., 1902, No. 524, dismissing exceptions t'o master’s report in Estate of Sarah Mulholland, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Exceptions to report of Henry G. Swayne, Esq., master.
    The facts are stated in the opinion of the Supreme Court.

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

      April 26, 1909:

      John F. Gorman, with him Leo J. Gorman and William Gorman, for appellant. —
    The orphans’ court was without jurisdiction: Curran’s Est., 28 W. N. C. 96; Bodder’s Est., 30 Pa. C. C. Rep. 417; Odd Fellows’ Sav. Bank’s App., 123 Pa. 356; Tyson’s Est., 191 Pa. 218; Lewis v. Lewis, 13 Pa. 82.

      Frederick L. Breitinger, for appellee. —
    The jurisdiction of the orphans’ court which is undoubted under the averments of the petition and the findings of the master, is not ousted by the facts set up in the answer of the appellant: Johnson’s App., 114 Pa. 132.
    Whether the fund was produced by a sale authorized by the orphans’ court or under a power in the will, is immaterial, for the reason that while the power of sale is vested in the executor, the distribution of the proceeds is under the control of the court: Twaddell’s App., 81 * Pa. 221; Fricke’s Est., 16 Pa. Superior Ct. 38.
    Where it is shown that funds have been wrongfully included in the account as trust funds or whose title or ownership is in another person to avoid circuity of action jurisdiction may be assumed by the orphans’ court: Moore’s Est., (No. 1), 211 Pa. 338; Tingle’s Est., 12 W. N. C. 223; Irvine’s Est. 209 Pa. 321; Kreimendahl’s Est., 17 Pa. Superior Ct. 496.
   Opinion bt

Mr. Justice Mestrezat,

This case is so clearly and radically wrong that all that is necessary to reverse it is to state the undisputed facts. The error of the master and of the court may be attributed to the manner in which the case was presented for their consideration.

James Mulholland died in 1876, leaving to survive him five children and a brother Felix. He was seized in fee of certain real estate in the city of Philadelphia at the time of his death, and his five children conveyed to his brother Felix “one undivided sixth part of and in all the real and personal estate of which James Mulholland died seized and possessed.” Felix subsequently died intestate and left to survive him a widow, Sarah, and five children, all of whom died in their minority, intestate, unmarried and without issue prior to the death of their mother. Sarah Mulholland died in 1901 and by her will, duly probated, appointed James McDevitt, the appellant, her executor. The will provides, inter alia, as follows: “And for the purpose of the better carrying my will into execution and effect, I do authorize and empower my executor James Mc-Devitt to make sale of all my estate real, personal or mixed and of which I may die seized and possessed either at public or private sale and upon such terms as he shall judge best.” The testatrix devised and bequeathed the residue of her estate to her “executor in trust to distribute the same among the several churches and charitable institutions hereinabove named or in his discretion to pay same from time to time for masses for the repose of my soul and the souls of my husband and our children.”

By virtue of the authority contained in the will, James Mc-Devitt, executor and trustee, executed and delivered a deed, dated January 6, 1902, and recorded the following day, to James Conway, conveying to him “all the right, title and interest of the said Sarah Mulholland deceased of, in and to” three lots or pieces of ground situate on the south side of Pine street and éast of Eleventh street in the city of Philadelphia for the consideration of $2,750. The deed recites that the property therein described is the same of which James Mulholland died seized and of which his five children conveyed the undivided sixth part to Felix Mulholland who died intestate seized of the said undivided interest in the property and leaving to survive him Sarah Mulholland and five children, all of whom died prior to their mother in whom all their interest in the premises vested. The deed to Conway is in the ordinary form used by an executor and trustee to convey real estate in pursuance of authority contained in the will. It recites the title to the premises conveyed from Thomas Fraley in 1848 to Sarah Mulholland, the authority conferred by the will on the executor and trustee for making the sale, and the appointment of the executor and the probate of the will. It contains the usual special warranty against acts done or committed by the executor.

Conway in pursuance of the title vested in him by the executor’s deed took possession of the premises and has since occupied and used them as his own. On January 21, 1908, he presented a petition to the orphans’ court of Philadelphia county setting forth, inter alia, that Sarah Mulholland died testate and the disposition made by her will of her estate; that the executor of Mrs. Mulholland had by deed dated January 6, 1902, conveyed to him “all the right, title and interest of the said Sarah Mulholland, deceased,” in the three lots of ground in Philadelphia, referring to the recital in the deed that Felix Mulholland, the husband of Sarah, had died seized of the undivided sixth part of the premises leaving to survive him a widow and five children, and the death of the five children unmarried and without issue and that their interest in the premises vested in their mother; that the executor filed the account of his administration which was audited on June 30,1902, “and by adjudication thereof distribution of the residue was awarded as directed in said will and the schedule of distribution as approved by the auditing judge.” The petition further avers that the purchase money was paid; that at the time of the conveyance the executor was of the belief and opinion that the testatrix died seized of the said undivided sixth part of the premises; that testatrix, however, was not of the blood of the first purchaser of the said one-sixth interest in the premises and, therefore, the fee thereof did not vest in her on the death of the last surviving of her children but vested in the heirs and next of kin of her husband; that the facts relative to the title did not come to the knowledge of petitioner until October 15, 1907; and that the consideration money for the conveyance forms a part of the balance remaining in the hands of the executor and trustee and is undistributed. The petitioner prayed that the executor be ordered and directed to repay to him the purchase money with interest thereon.

The executor filed an answer in which he admits most of the facts averred in' the petition. He admits that Conway paid the purchase money in the belief that the executor had the right to convey to him a good title in fee and that the executor was of the same opinion; that the executor has funds awarded him sufficient to return to petitioner the amount paid by him as purchase money but avers that he refused to repay Conway the purchase money, as the money in his hands had been set apart by the adjudication of the orphans' court' for a specific purpose, “and your respondent is informed and believes in law he has no right to divert it from this purpose unless protected by an order of your honorable court.” The answer further avers that the executor filed an account which was duly adjudicated by the orphans’ court, and attaches a copy thereof to the answer. The final decree confirming the account and directing distribution was made by the court on June 30, 1902, and contains, inter alia, the following: “The residue of this estate is given to the executor in trust to distribute the same amongst the churches named in the proportions and manner as set out in the will of deceased, and in his discretion to pay the same from time to time for masses for the repose of the soul of testatrix and the souls of her husband and their children.”

The answer having been filed, the court appointed a master who made a voluminous report, granting the prayer of the petition and awarding restitution of the money paid by Conway to McDevitt, but permitting Conway to retain the title to the property conveyed to him by the executor. The reason for the conclusion of the learned master is stated by him as follows: “The master and examiner finds as a fact that the said Sarah Mulholland was not of the blood of the first purchaser of said one-sixth part of the property hereinbefore described, and that the aforesaid consideration of $2,750 was paid by the said James Conway unto the said James Mc-Devitt, executor and trustee, by reason of a mutual mistake of fact, innocently committed and through no fault of either party thereto. It also appears that the parties to said mistake can be put in statu quo, no other rights having attached in the meantime.” The learned court below in a pro forma decree dismissed the exceptions and confirmed the master’s report absolutely. McDevitt, as executor and residuary devisee in trust, has taken this appeal.

It will be observed that the master committed manifest error in finding, as he did, “that the facts in reference to the devolution of the title to said one-sixth part of the said property first become known to said James Conway and James McDevitt on or about October 15,1907,” as the deed executed by McDevitt and accepted by Conway recited the title and thereby disclosed the fact that Sarah Mulholland, the decedent, had no valid title to the interest in the premises in question. This was notice to Conway of the defective title in 1902: Jennings v. Bloomfield, 199 Pa. 638. When a purchaser cannot make out his title but through a deed which leads to a fact, he will be affected with notice of that fact: Mertins v. Jolliffe, Amb. 311. Equally apparent is it that there is no foundation for the finding by the master “that the parties to said mistake can be put in statu quo, no other rights having attached in the meantime,” as the petition and answer show that the executor filed an account of his administration of the estate which included the sum paid by Conway to McDevitt, that the account was finally confirmed and distribution made in June, 1902, and that the fund realized by the sale of the property to Conway was distributed as part of the testatrix’s residuary estate and passed to the trustee for the legatees nearly six years prior to the commencement of these proceedings. The master’s findings of fact are in conflict with the evidence, and with their disappearance his conclusions must likewise fall. It may be that both parties to the deed were ignorant of the law, but with the full knowledge of the facts which the pleadings show they had, that of itself is no ground for equitable relief: Norris v. Crowe, 206 Pa. 438. And there are no special circumstances or facts in the case at bar that will aid the purchaser’s ignorance or mistake of the law in moving a chancellor to grant the relief prayed for in the petition.

Under the undisputed facts disclosed by the evidence, the orphans’ court had no power to set aside the sale and direct repayment of the purchase money to the executor. Such power would not exist in the orphans’ court if this had been a sale made in pursuance of its own order. In such cases, the court unquestionably has the authority to control the sale and protect a purchaser, but that authority must be invoked within a proper time and under a state of facts which will justify the exercise of the equitable powers of the court. In De Haven’s App., 106 Pa. 612, Green, J., delivering the opinion of the court, says (p. 614): “Had the purchaser (of real estate at an administrator’s sale) bought in the absence of aiiy interference, or inducements held out by the administrator to persuade the appellant to buy, the maxim of caveat emptor would certainly have applied, and we would probably not have felt justified in reviewing the refusal of the court below to set aside the sale. So also if the sale had been confirmed, purchase money paid and deed delivered, the transaction would be regarded as closed and beyond the reach of the courts. But here the application for relief was made to the orphans’ court which had ordered the sale before the sale was confirmed, and while the whole matter was yet within the control of the court.” In such case the orphans’ court retains control over the sale even until after its confirmation, but as indicated in Justice Green’s opinion it will not exercise its authority to grant relief to a purchaser in the absence of fraud and after he has paid the purchase money and received his deed. There must be an end to such proceedings, and if a purchaser desires to relieve himself of a defective title, he must exercise diligence in ascertaining the defect and invoking the aid of the court to afford him protection. The law requires reasonable diligence in a purchaser to ascertain any defect of title: Brush v. Ware, 40 U. S. 93; and when once ascertained, he must exercise a like diligence in asserting his right to have the sale set aside. The purchaser here appeals to the equitable powers of the court, and they are never called into activity except by conscience, good faith and reasonable diligence: Smith v. Clay, 3 Bro. C. C. 639, n.

We need not discuss or determine the extent of the powers of the orphans’ court in setting aside a sale made by an executor in pursuance of a power contained in the will. We have held that in a proper case, the orphans’ court has power to review, set aside, and if necessary to order a resale of real estate made under a testamentary power: Dundas’s App., 64 Pa. 325. But a sale under a power in a will need not be confirmed by the court, nor is any order of court necessary to authorize the executor to convey. No decree can properly be made upon a conveyance by an executor or trustee under a power conferred by will, unless the aid of the court is required to supply some omission in the terms of the instrument creating the power: Schwartz’s Est., 168 Pa. 204. It may well be assumed, however, that the authority of the orphans’ court to set aside a sale made in pursuance of a testamentary power is not more extensive than that exercised by the court over a sale made in pursuance of its own order. It is clear, as pointed out above, that had this sale been made by a personal representative in pursuance of an order of the orphans’ court, that court would have refused, under the circumstances of this case, to set aside the sale or to order the repayment of the purchase money. Conway is affected with notice of the title which his own deed disclosed, and having accepted the title, taken possession of the premises, and retained them for more than five years, he cannot be permitted to attack the title and compel the executor to repay the purchase money. When he accepted the deed, he knew all that he knows to-day in regard to the title. The facts were all before him, and notwithstanding the finding of the master Conway was not ignorant of or mistaken as to the facts in the chain of the title which the executor conveyed. The deed itself convicts the master of error in this respect, and shows that in 1902 Conway was in full possession of all the facts relative to the title of Mrs. Mulholland to the property which her executor conveyed.

In addition to having accurate knowledge of the facts which would deprive him of the right to any relief in the orphans’ court at this time, the money which Conway now seeks to have returned to him was charged to the executor in the account which he filed and was distributed in 1902 to the legatees as directed in the testatrix’s will. Aside from any other reason, this of itself is an insuperable objection to the return of the money by the executor. He has disposed of it as directed in the will by order of the orphans’ court, and he cannot now be required to refund it. As appears by the order of the court awarding distribution, quoted above, the money is not now held by the executor for administration but in trust for the beneficiaries named in the will of the decedent. It is not in the power of the trustee to refund it to the executor for the purpose of repayment to the purchaser of the real estate. If the orphans’ court had authority to compel the repayment of the money to Conway, it is now too late to invoke it. The facts of this case do not warrant any interference by the court with the sale made by the executor to Conway.

The decree of the orphans’ coürt is reversed, and all the proceedings are set aside at the costs of the petitioner.


source: Caselaw Access Project

author: Me. Justice Stewart,

license: Public Domain

text:
    Philadelphia, Appellant, v. Philadelphia Rapid Transit Company.

      Street railways — Rates of fare — Contract with municipality — Free transfers — Change of rate.

    Where a contract between a city and a street railway company provided “that the present rates of fare may be changed from time to time, but only with the consent of both parties hereto,” and it appears that “the present rates of fare,” were five cents for a continuous ride, or tickets sold in strips at the rate of six for twenty-five cents, and free transfers at certain intersections issued both on cash fare and tickets, the company does not violate the terms of the contract by changing its rule so as to issue free transfers only to persons who pay a cash fare of five cents, and not to those who pay their fare by ticket.
    Argued March 26, 1909.
    Appeal, No. 45, Jan. T., 1909, by plaintiff, from decree of C. P. No. 5, Phila. Co., June T., 1908, No. 6,690, dismissing bill in equity in case of City of Philadelphia v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for the specific performance of a contract and for an injunction.

      Staake, J., filed an opinion in which he stated the facts to be as follows:
    This is a bill in equity praying for a decree against the defendant:
    1. “That each ticket purchased of the defendant at the rate of six tickets for twenty-five cents shall have all the effect of a cash fare of five cents.”
    2. That the defendant may be required to perform its contract with the plaintiff and accept such tickets, with like effect, as if fares of five cents each were paid by its passengers, and to issue transfers thereon in like manner, for the same points and for the same routes and distances as those for which the said transfers were issued upon the payment of such tickets on and immediately after July 1, 1907, and until May 18, 1908.
    3. That the rule of the defendant company, “by virtue of which on and after'May 18, 1908, it refused to issue transfers as theretofore issued to those who had paid their fare by ticket,” and by which such transfers were issued “only at the time a five cent cash fare is paid, and only when asked for by the passenger at the time of the payment of the cash fare,” and the “orders” of the said company defendant, abolishing certain transfers which had theretofore been granted, so that on, from and after said May 18, 1908, such transfers were not issued, and passengers were and still are required to pay a second or additional fare for the ride, which theretofore had been granted for the one fare, should be decreed to be unauthorized and unlawful, and in violation of a contract of the city of Philadelphia with the defendant company dated’ July 1, 1907, made under the provisions of an ordinance of the councils of the city of Philadelphia, duly approved by the mayor of the said city on July 1,1907, entitled, “An ordinance authorizing the execution of a contract between the City of Philadelphia and the Philadelphia Rapid Transit Company, affecting, fixing and regulating the duties, powers, rights and liabilities of the City and of the Philadelphia Rapid Transit Company and its subsidiary companies, and the relations and the respective interests of the contracting parties, providing for the future management and extension of the street railway system controlled by the Philadelphia Rapid Transit Company, and the final acquisition of its leaseholds and property by the City, and repealing so much of former ordinances as is inconsistent therewith.”
    4. That an injunction may issue against the defendant company enjoining the company defendant and prohibiting it from carrying out the terms of the said rules and orders and each of them.
    5. That the plaintiff may have such further and different relief as may be or become necessary or proper in the premises.
    The city averred that the eighth section of the said contract provided:

      “ The city hereby confirms to the company and its subsidiary companies all of the consents, rights and franchises heretofore granted to, and exercised by them, and each of them, including the right of operation by the overhead trolley system, free of all terms, conditions and regulations not herein provided for, and does further give up and surrender and agree not to exercise any rights which it may possess in respect to a repeal or resumption of any of the said rights now possessed or heretofore granted, or a taking over of any of said properties, any law, ordinance or contract now in force, or hereafter passed to the contrary notwithstanding: Provided, however, That the present rates of fare may be changed from time to time, but only with the consent of both parties hereto: And provided further, That nothing in this contract contained shall be construed to limit the power of the city to make all rules and regulations, relating to the operation and management of the lines controlled by the company, necessary and proper to be made under the police power,” and that:
    “At the time when the said contract was made there were three rates of fare of the defendant company,” viz.: a cash fare of five cents for each passenger, a fare of eight cents for which the passenger received what was called an exchange ticket, and for which he was entitled to ride upon a' car of an intersecting line from the point of intersection, and that the company also sold through its conductors six tickets for twenty-five cents, each of which was good for a fare and was received as the precise equivalent of a cash fare of five cents.
    It was also averred that prior to said May 18,1907, the company defendant issued “transfer tickets,” which were given to passengers without extra charge to enable them to ride from certain intersections upon other lines.
    It was contended that the refusal to issue such free transfers as issued prior to May 18, 1908, and the abolishment of many of the transfer points on and after May 18,1908, resulted in an increase of the fare of those who theretofore had paid by ticket or had purchased exchange tickets.
    It was also averred that this “increase was not made with the consent of the City of Philadelphia” and that the increase was a change of “the present rates of fare” referred to in the proviso of the said eighth section of the contract of the company defendant with the city.
    The company defendant, while admitting in its answer that at the time of the making of the contract “there were the three rates of fare,” as averred by the city, averred that it is a leasing and operating company, controlling and operating “seventy-five different lines of street passenger railways, which under their various charters are entitled to charge a separate fare of not more than five cents for a ride over that line only.” That the rate of fare, upon all of the companies they are operating, was five cents and they are advised that when the words “rates of fare” were used in the said eighth section they were used with reference to the rates established by all the various companies for a single ride, namely, five cents. All other rates of fare referred to by the city were averred to be in the nature of commutation rates, but it was denied, “that there was any contract or agreement or binding obligation on the part of the company to give any passenger four rides for eight cents or twelve rides for twenty-five cents.” That the company had established numerous points at which a free transfer was given, entitling the holder to a further ride upon an intersecting line was admitted, but it denied “there was any right in the holder of an exchange ticket or a package ticket to demand such transfer.”

      It was further answered, that “by means of various Acts of the Legislature, particularly the Act of May 15, 1895, P. L. 65, the defendant as an operating company was allowed to operate all lines controlled by it as a single system, laying out new routes partly over one line and partly over another.”
    Defendant admitted that in order to develop its business and accommodate the public, it “established from time to time and changed and took off and re-established transfer points,” but at no time had it agreed “to issue transfers of this character either to the holder of an exchange ticket, who secured the same at the price of eight cents for two rides, or to the holder of a six-for-a-quarter ticket, who got a reduced rate for six rides and not for twelve rides.”
    Defendant also averred that these transfers were at all times issued to passengers at the time they left the car and not at the time they paid their fare, and it was therefore impossible for a conductor to know who had paid a full fare and who had given either an exchange ticket or a commutation ticket, and it was averred that no order had ever been made permitting or authorizing the issue of transfers to any parties except those paying the full fare, but admitted certain abuses had crept into the handling of exchange tickets, for the correction of which abuses the order complained of by the city had been made. The nature and character of these abuses is fully set out in the answer.
    The issuing and enforcement of the order of May 18, 1908, is admitted, but it is averred that the order was not in any respect a change in the orders or regulations of the company although it did result in a change of conditions which had arisen from the said abuse of privileges made possible by the manner in which transfers were previously issued.
    It was denied that on May 18, 1908, any transfer points were abolished, but admitted in certain cases parties who had theretofore “secured four rides for eight cents or two rides for four-and-one-sixth cents can no longer secure two rides for less than five cents, or at the rate of two-and-one-half cents each.”
    It was admitted that the order of May 18,1908, complained of was made without the consent of the city of Philadelphia. It was denied that the order was an increase or change in the rate of fare and that “consent by the city” was necessary to make the order effective. The defendant further denied “any intention to violate either the letter or the spirit of the contract with the city of Philadelphia.”
    The case was heard by the court upon bill and answer, there being no proofs submitted.
    The court entered a decree dismissing the bill.

      Error assigned was decree dismissing the bill.

      J. Howard Gendell, city solicitor, with him James Alcorn, assistant city solicitor, for appellant. —
    We deny that the transfer ticket is a new fare, or a free ticket, or that the passenger gets an additional ride for nothing. It is as clearly an incident of the original fare as- is the ride upon an exchange ticket, and the transfer of the passenger to the second car is an incident of the passage which is fully paid for by that original fare.
    In Chicago Union Traction Co. v. Chicago, 199 Ill. 484 (65 N. E. Repr. 451), it was decided that the right to regulate fares includes the right to regulate transfers. Curiously enough, the very word “incident” which we have used without reference to that decision is used by the court and applied in a manner that is the exact reverse of the gist of the opinion of the court below in this instance.
    One other point raised by defendant is that the tickets are “ in the nature of commutation rates.” This may be questionable; but if true, what of it? Does not the agreement relate to all of the then “present rates of fares”?
    In the case of Penna. R. R. Co. v. Philadelphia County, 220 Pa. 100, respecting the constitutionality of the two cent rate law, all fares of every kind and description, including cash, plain tickets, excursion or round-trip tickets, commutation tickets and workmen’s tickets, were taken into consideration. See also Virginia Pass. & Power Co. v. Com., 103 Va. 644 (49 S. E. Repr. 995; Smith, Executrix, v. Markland et al., 223 Pa. 605.

      Ellis Ames Ballard and John G. Johnson, with them James

      Gay Gordon, for appellee. —
    April 26, 1909:
    The contract intended to leave the question exactly where it found it, viz., a restriction upon the basic rate as it had been established and as it existed, leaving to the company as a detail of management the regulation of transfers and commutation rates: Reeves v. Traction Co., 152 Pa. 153; Detroit v. Detroit Citizens’ St. Ry. Co, 184 U. S. 368 (22 Sup. Ct. Repr. 410).
    In any event the words “rates of fare” apply only to the rate for a continuous ride without changing from one line to another: Ellis v. Milwaukee City Ry. Co., 67 Wis. 135 (30 N. W. Repr. 218); Tophan v. Interurban St. Ry. Co., 89 N. Y. Supp. 298; Old Colony Trust Co. v. Atlanta, 83 Fed. Repr. 39; State ex rel. v. St. Paul City Ry. Co., 78 Minnesota, 331 (81 N. W. Repr. 200); Lake Shore, etc., Ry. v. Smith, 173 U. S. 684 (19 Sup. Ct. Repr. 565).
    The order complained of does not take away a single transfer point; it merely regulates the issuing of transfers in order to stop abuses, and the incidental change in cost to a few riders in particular cases is de minimis.
   Opinion by

Me. Justice Stewart,

Prior to the organization of the Philadelphia Rapid Transit Company, here the appellee, the lines of street railways in the city of Philadelphia were owned and operated by several independent companies. With a view to unify these to the extent of bringing them under a common system and management, the Philadelphia Rapid Transit Company by lease and otherwise acquired control of all of them. This control, while it allows each company to retain its separate existence, commits to the traction company the operation, management and regulation of each line of railway. The several companies differed both in their charter rights, and in their municipal privileges and obligations as well. To make these latter fixed, fair and uniform, to supersede former regulations, and to define and regulate the relations thereafter to be observed between the city and the railways — so reads the agreement— the contract of July 1,1907, was entered into between the city and the traction company. In its entirety the contract does not concern us. It is quite enough to say of it that the advantages derived thereunder are reciprocal. It is only the limitation imposed by a proviso in the contract on the right of the company to change the rates of fare that calls for consideration here. The proviso is as follows: “Provided, however, That the present rates of fare may be changed from time to time, but only with the consent of both parties hereto.” At the time the contract was entered into, the regular fare charged on each line for a continuous ride in the same car, irrespective of distance traveled, whether for a square or to the terminus, was five cents. This fare was uniform throughout the city. For reasons of its own, not that it was compelled by law or ordinance to do so, the traction company had been accustomed to offer to the public cards or slips containing six printed, detachable tickets, each entitling the holder to a single continuous ride, for twenty-five cents. Each ticket was regarded as the equivalent of a five cent fare, and secured to the holder the same privileges. In addition, the company had in force at the date of the contract a system of free transfers which allowed one who paid a single fare, whether in cash or by ticket, to complete his ride on certain connecting roads without further charge. For reasons not necessary to discuss, the traction ‘company has since the date of the contract discontinued such privilege when the fare is paid by ticket, and' allows it only in cases where a cash fare has been paid. The bill complains that this action of the company is a change in its established rates of fare in force when the contract was entered into, inasmuch as it requires now a cash payment of five cents to secure the same transfer ride which before could be had on a ticket costing but four and one-sixth cents; and since the change was made without the consent of the city, an injunction was asked for to restrain the company from discriminating in the way indicated. The question thus presented is a very narrow one. The expression “rates of fare” as used in the proviso is more or less inapt, and therefore lacks definiteness. We are not aided in its interpretation by anything elsewhere appearing in the contract. The proviso is left to speak for itself. Strictly speaking, the traction company had no established rates of fare when it entered into this contract. A rate is the measure of a thing by its ratio or relation to some fixed standard. When a certain sum is determined for a particular service, unless it is proportional and comparative according to a recognized standard, it is not a rate, but a charge. The compensation which this company was accustomed to receive for the facilities it afforded had relation to no standard. The five cent fare for one continuous ride was not measured by distance traveled or anything else that would suggest proportion; and the same must be said of every other fare it required. None of them was determined by ratio. It is quite evident, however, that the reference in the proviso was to the charges and fares the company was receiving at the date of the contract; it could be to nothing else. Accepting this as the meaning, it is necessary, first, to inquire what these several charges were. We have referred to one— five cents for a single continuous ride in the same car. Another was, eight cents for a single change from one car to another on certain intersecting lines. It is not denied that these charges fall within the meaning of the proviso. No attempt has been made to change these in any particular. It is contended that there was also a third .charge, distinguishable from those mentioned, which also falls within the proviso, viz.: twenty-five cents for six tickets when purchased together, each ticket being the equivalent of a five cent cash fare, and entitling the holder to equal service. It must be conceded, we think, that if this were a distinct charge within the contemplation of the parties, the change that is complained of with respect to it would be violative of the terms of the contract, since the ticket is no longer the full equivalent of a five cent fare, in that it will not now purchase the same facilities in the way of transfer. The question is — was it such a charge? The case turns upon the answer. The sum of twenty-five cents distributed upon six tickets makes the cost of each, considered separately, four and one-sixth cents. This simple statement would seem to show such a reduction in cost to the purchaser as would warrant a conclusion that the company had two charges for the same service, that is, the continuous ride, one five cents, and another four and one-sixth cents. But this method of differentiating does not express the whole truth as we need to know it for a proper determination of the question. Clearly the four and one-sixth cents charge is not all the company exacts in the way of payment when it sells by ticket. One ticket cannot be purchased for that sum. In order to get one the purchaser must buy six, and pay twenty-five cents before he gets any service whatever in return. It results that the company gets the benefit of this advance payment without interest. Where all the six tickets are used promptly, the advantage derived by the company in this respect may be too slight to be considered; but, as everyone knows, all are not used promptly; and it is not mere speculation to say that the general average would show a very substantial benefit enuring to the company from this source, an advantage which could be very fairly regarded as the full equivalent of the amount abated. Whatever the company gains in this way is at the cost of the party purchasing, of course. These considerations would indicate that in adopting this charge for tickets the company had no intention of departing from the five cent standard charge for a continuous ride; but that what was intended, and all that was intended, was an equitable adjustment on the basis of a five cent fare for a continuous ride, which would advantage its patrons in the way of convenience without entailing loss upon the company. If any other purpose controlled, it is not apparent what it was. The company was all the while adhering to this five cent charge for the general public. The ticket arrangement was one of its own devising, adopted not because forced upon it, but at its own pleasure. If the purpose was to reduce the charge, the question at once arises, to what end? It will hardly be contended that it was to gratify a generous impulse prompted by an overabundant income. No more can it be supposed that it was done with a view to increase the company’s revenues through an enlarged traffic. The average individual would not be likely to take more rides during a month or year because of a reduction of five-sixths of a cent upon each ride. It is quite as inconceivable that its purpose was to give individuals who, without inconvenience to themselves, could spare twenty-five cents at any time, the advantage of a lower fare than was charged those who could conveniently spare no more than five cents each time they traveled. The only reasonable explanation is that in adopting the ticket system the object was to afford an additional convenience for a consideration in the way. of advance payment, which would equal the amount of the abatement in the fare in dollars and cents. Indeed, we think it so evident that the purpose of the company was to adhere to the five cent charge as a basis, that we are unable to see how the complainant in contracting with the company with respect to the matter of its fares, could have had any reason to suppose that the ticket system introduced any other. It is only by supposing that the understanding of the parties with respect to it was wholly different from what the transaction on its face imports as to its meaning and purpose, that we can read this ticket system into the terms of the proviso, and there is nothing in the case as presented that would give us warrant for so doing. If, then, it is not “a rate of fare” within the meaning of the proviso, but a mere regulation for the convenience of the public involving no change in charge — and this is our conclusion — it follows that the traction company in restricting its application in the manner complained of was strictly within its rights, and the concurrence of the city was not required.

The decree is affirmed and the bill dismissed at the costs of appellant.


author: Mr. Justice Potter,

text:
    Saccone, Appellant, v. West End Trust Company.

      Deed, — Boundaries—Alley—Private opened alley.

    1. The rule is the same whether a deed calls for a public highway or opened private alley as a boundary, it passes title to the grantee as against the grantor to the middle line of the alley.
    2. Where the owner of land has laid out an alley across one end of it, one side of the alley coinciding with the boundary line of the land, and subsequently sells the land, describing it in hjs deed as being bounded by the alley, it is to be presumed, in the absence of an exception of the soil of the alley from the operation of the deed, either in express words or necessarily implied, that the parties intend the title to the soil of the alley to pass to and vest in the buyer.
    3. An owner of a tract of land situated on the southwest corner of two intersecting streets divided it into five lots each having a frontage of twenty feet in width on the south side of the street running east and west. The comer lot and the three lots nearest to it were fifty-nine feet in depth and the westernmost lot was sixty-two feet in depth. Each of the first four lots was described in deeds to various grantees as extending “ to a three feet wide alley laid out and opened by the grantor for the accommodation of this and other lots adjoining thereto from the street (running north and south) to the depth of eighty feet.” The grantor owned no land to the south of said alley. Each of the five deeds contained a grant of “the free use and privilege of the said three feet wide alley as and for a passageway and water course in common with the owners and occupiers of the said adjoining lots.” Held, that each of the grantees under the deeds for the four lots fifty-nine feet in depth, took a fee simple title to so much of the ground covered by the alley as lay immediately in the rear of the lot he bought, subject to an easement in the owners of the other lots, and that the grantor parted with all his interest in the soil of the alley at that time, and could thereafter make no title to another person for it.
    Argued Jan. 20, 1909.
    Appeal, No. 324, Jan. T., 1908, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1907, No. 2,937, for defendants on case stated in suit of Albertina Wickersham Saccone et al. by John F. Keator, their guardian, and Mary W. Taffini d'Acceglio v. West End Trust Company and Girard Trust Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Case stated in ejectment to determine title to the bed of an alley in the ninth ward of the city of Philadelphia. Before Audenried, J.
    The following plan shows the situation of the alley:

      The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendants on the case stated.

      H. Gordon McCouch, with him George S. Munson, James McMullan and Keator & Johnson, for appellant. —
    The question raised by this appeal is the very narrow one of whether where a deed calls for a private alley as a boundary, and the grantor owns the fee thereof, the grantee thereby acquires title to any part of the soil of the alley. It is respectfully submitted that this question has been repeatedly answered in the negative by this court, and that the assignments of error should be sustained: Scholl v. Emerich, 36 Pa. Superior Ct. 404; Spackman v. Steidel, 88 Pa. 453; Andreas v. Steigerwalt, 29 Pa. Superior Ct. 1.
    There is not the slightest evidence here that the alley in question was in actual use at the date of these deeds, April 21, 1832; on the contrary, as appears by paragraph 1 of the case stated, there was no physical division of the alley from the property adjoining it on the north prior to the date of such deeds.
    This being the case, the lots conveyed by Caldcleugh in 1832 were bounded by a paper alley — plotted, but not actually in existence. No title, therefore, under the decisions- of this court passed to the abutting owners. They acquired an easement only over the bed of the alley, but the fee remained in the grantor: Cole v. Philadelphia, 199 Pa. 464; Clymer v. Roberts, 220 Pa. 162; McNeal v. Rebman, 168 Pa. 109; Gamble v. Philadelphia, 162 Pa. 413.
    Even if it be conceded that the plaintiffs as owners of the soil would have no right even to pass over the alley, because it might be interpreted as a diminution of that privacy secured to the grantees of the right of way, yet the legal title to the soil would still be in them, and the grantees of the right of way would have no right to make any use of it, except in the exercise of their easement: Kirkham v. Sharp, 1 Wharton, 323; Barnes v. Railroad Co., 27 Pa. Superior Ct. 84.

      John Hampton Barnes, for appellees. —
    The fee of the soil of the alley passed from Caldcleugh on April 21, 1832, to the grantees of the four lots abutting thereon, subject to the right of way in favor of each of the five lots: Paul v. Carver, 26 Pa. 223; Cox v. Freedley, 33 Pa. 124; Lehigh St., Borough of Easton’s Appeal, 81* Pa. 85; Transue v. Sell, 105 Pa. 604; Ott v. Kreiter, 110 Pa. 370; Dobson v. Hohenadel, 148 Pa. 367; Bliem v. Daubenspreck, 169 Pa. 282; Woodward v. Pittsburg, 194 Pa. 193; Neely v. Philadelphia, 212 Pa. 551.
    The rule as to highways was applied to property abutting upon a private way or alley, by the Supreme Court of Pennsylvania in the case of Ellis v. American Academy of Music, 120 Pa. 608. See also Schmoele v. Betz, 212 Pa. 32; Haas v. Bergen, 167 Pa. 408; Yeatts v. Doyle, 190 Pa. 129; Zerbey v. Allan, 215 Pa. 383.
    The rule of law that property described as abutting upon or bounded by a highway carries the title to the center thereof, has been applied in other states and in England to private ways or alleys: Freeman v. Sayre, 48 N. J. Law, 37 (2 Atl. Repr. 650); Lindsay v. Jones, 21 Nev. 72 (25 Pac. Repr. 297); Peck v. Denniston, 121 Mass. 17; Gould v. Eastern R. R. Co., 142 Mass. 85 (7 N. E. Repr. 543); Holmes v. Bellingham, 7 C. B. (N. S.) 329; Smith v. Howden, 14 C. B. (N. S.) 398.
    If the 'grantor owns the whole of the bed of a highway and no land on the other side thereof, his conveyance of land on the highway will convey all the land within the highway limit: Tiffany on Real Property, 896; Taylor v. Armstrong, 24 Ark. 103; In re Robbins, 34 Minn. 99 (24 N. W. Repr. 356); Johnson v. Arnold, 91 Georgia, 659 (18 S. E. Repr. 370).
    The appellees being the owners of all the lots abutting upon the alley and entitled to the use thereof had power to vacate it, as they did by deed of October 6, 1905: Kirkham v. Sharp, 1Wharton, 323; Stevenson v. Stewart, 7 Philadelphia, 293; Patterson v. Railroad Co., 26 W. N. C. 327; Kieffer v. Imhoff, 26 Pa. 438; McCarty v. Kitchenman, 47 Pa. 239.

      H. O. & B. H. Evans, Watson & Freeman and Robert

      Woods Sutton filed a brief as amici curiæ for clients interested in similar pending suits in Allegheny county.
    May 3, 1909:
   Opinion by

Mr. Justice Potter,

This was an amicable action of ejectment, brought to recover possession of a strip of ground, three feet in width and eighty feet in depth, situated on the west side of Broad street, fifty-nine feet south of its intersection with South Penn square, in the city of Philadelphia. The parties agreed upon a case stated, which disclosed the following facts: On April 21, 1832, Robert A. Caldcleugh conveyed to various grantees, five lots of ground situated on South Penn square west of Broad street, each twenty feet in width, the corner lot and the three lots nearest to it being fifty-nine feet in depth and the westernmost lot sixty-two feet deep. Each of the first four lots was described in the deeds as extending “to a three feet wide alley laid out and opened by the said Robert A. Caldcleugh for the accommodation of this and other lots adjoining thereto and leading westward from the said Broad street to the depth of eighty feet.” Each of the five deeds contained a grant of “the free use and privilege of the said three feet wide alley as and for a passageway and water course in common with the owners and occupiers of the said adjoining lots.”

From the date of the deeds each of the owners of the lots continued to have, use and enjoy the free and uninterrupted use and privilege of the alley as and for a passageway and water course in common with the owners and occupiers of the other four lots.

On November 11,1846, Robert O’Neill acquired title to the premises adjoining the alley on the south and on June 26,1848, Caldcleugh conveyed to O’Neill the soil of the alley in fee, subject to the uses and privileges granted to the owners of the lots adjoining. On August 9, 1849, O’Neill conveyed to one Wickersham the premises south of the alley “together with the free and common use and privilege of the aforesaid three feet wide alley as and for a passageway and water course into and from Broad street at all times forever.”

Subsequently, by various conveyances, three of the lots next the corner originally granted by Caldcleugh became vested in the West End Trust Company and the other two lots, as well as the premises south of the alley, granted by O’Neill to Wickersham, became vested in the Girard Trust Company. Both companies made use of the soil of the alley in connection with buildings erected on their respective premises, and on October 6, 1905, they entered into an agreement with each other, “that the said alley be and the same is hereby abandoned and vacated.” The plaintiffs are the heirs at law of Robert O’Neill, grantee of Caldcleugh by the deed of June 26, 1848, and the defendants are the West End Trust Company and the Girard Trust Company.

Upon the facts stated, the court below held that each of the grantees of Caldcleugh, under the four deeds of April 21,1832, took a fee simple title to so much of the ground in dispute as lay immediately in the rear of the lot he bought, subject to an easement in the owners of the other lots, and that Caldcleugh parted with all his interest at that time, and no title to the soil of the alley passed by the deed of Caldcleugh to O’Neill on June 26, 1848. Judgment was entered on the case stated for the defendants, and the plaintiffs have appealed.

If the alley in question had been a public highway, the grantees of land bounded thereby would without doubt have taken the fee to the center of the highway, if the grantor owned such fee, and had used no language in his deed indicating an intention to retain the fee in the highway. In one of our latest cases bearing on this question, Willock v. Beaver Valley R. R. Co., 222 Pa. 590, our Brother Elkin said (p. 595): “If the plan of lots in the present case had been laid out by an individual in precisely the same manner as the commonwealth had done, and lots had been sold with streets as boundaries, the title to the fee to the center of the streets would have passed to the purchaser. This is the rule of our cases from Paul v. Carver, 26 Pa. 223, to Neely v. Philadelphia, 212 Pa. 551.”

We can see no good reason why the same rule should not apply to land which is conveyed as bounded by a private way. The doctrine was substantially adopted by this court, in Ellis v. Academy of Music, 120 Pa. 608, where it was said (p. 623): “Nor did the court err in charging that parties who are entitled to a free use of an alley, have the same right in it that the public has in its highways, and that if the way in this case were vacated, the soil would belong to the plaintiff and defendant. as tenants in common. By the several grants to these parties, their properties were not only bounded on the alley in controversy, but it was made appurtenant to those properties. Nothing, therefore, was left in the owner, and if the fee did not -vest in these grantees, it is hard to tell where it is. The case is very much like that of Holmes v. Bellingham, reported in 7 C. B. (N. S.) 329, in which Cockburn, C. J., says: 'The direction complained of is, that the learned judge told the jury that there was a presumption in the case of a private way or occupation road between two properties, that the soil of the road belongs usque ad medium to the owners of the adjoining property on either side. That proposition, subject to the qualification which I shall presently mention, and which I take it, was necessarily involved in what afterwards fell from the learned judge, is in my opinion, a correct one. The same principle which applies to a public road, and which is the foundation of the doctrine, seems to me to apply with equal force to the case of a private road.' As the doctrine here stated seems to be reasonable and sound, we cannot understand why we should not adopt it. It seems to be admitted that, were the alley public, its vacation would vest in each of the parties the unincumbered one-half of the fee in severalty, and why this should not apply to a private way, where, just as in the case of a public way, by the grant it was made appurtanent to the several properties, we cannot understand.” The reference above to the plaintiff and defendant as being tenants in common of the soil in the alley in case it was vacated, was probably a slip of the pen, as later in the opinion it is stated that vacation would vest in each of the parties, one-half of the fee in severalty.

In Rice v. Clear Spring Coal Co., 186 Pa. 49, the rule which was approved by this court was thus stated: “When the boundary given in a deed has physical extent, as a road, street, or other monument having width, courts will so interpret the language of the description, in the absence of any apparent contrary intent, as- to carry the fee of the land to the center line of such monument.” And in Schmoele v. Betz, 212 Pa. 32, a case which involved the use of a private alley, the doctrine was again cited with approval, that, in case of vacation, the rule which applies to a public highway is to be applied as between parties entitled to the use of a private alley.

In some of our cases, the language used appears to sustain the contention of appellants, that there is a distinction between a call for a public highway as a boundary, and a private street or alley, so designated. But we think upon examination that these decisions were not intended to go further, than to hold that where land is conveyed as bounded by an unopened street, the grantee takes the fee only to the side line of the street, with an easement over its bed. Thus in Cole v. Philadelphia, 199 Pa. 464, the deed called for a street which was unopened, and it was held that the call for an unopened street as a boundary only conveyed the title to the side of the street and not to the middle thereof. In Clymer v. Roberts, 220 Pa. 162, the deed called for “the middle line of Howard street fifty feet wide; thence along the middle line of said Howard street.” Howard street was at the time an unopened street, but it was held that the purpose of making the boundary to be the middle line of the street was to vest the fee in the grantee as far as the center line, notwithstanding the fact that the street was at the time unopened. In Robinson v. Myers, 67 Pa. 9, where the rule with regard to unopened streets seems to have been first laid down, this distinction is expressly made. Justice Williams, after stating the doctrine of Paul v. Carver, 26 Pa. 223, and Cox v. Freedley, 33 Pa. 124, said, with reference to the case then before him: “But in this case there was no alley or street by which the lots were bounded. The recorded plan which is to be taken as a part of the defendant's title shows that the ground in question is a lot, and not a street. And it is admitted that no alley was ever laid out over the lot, or ever used by the public or by private individuals. There is then no ground or reason for the application of the rule laid down in Paul v. Carver, to this case.” The case of O’Linda v. Lothrop, 38 Mass. 292, cited in Robinson v. Myers, and also by Justice Mercur in Spackman v. Steidel, 88 Pa. 453, relied on by appellants, was also a question of an unopened street. Morton, J., said (p. 296): “The street did not then exist in actual use, but only in contemplation.” The decision there seems to have gone upon the ground that the deeds showed an intention by the grantor to exclude the fee of the street from the grant.

In the present case the language of the deeds from Caldcleugh, as set forth in the case stated, shows that at the time of the conveyances the alley was already “laid out and opened by the said Robert A. Caldcleugh;” and it further appears from the case stated that after the conveyances were made the owners of the lots continued the use of the alley, and it was not abandoned or vacated until October 6, 1905, a period of over seventy-three years. So that the facts of this case distinguish it clearly from Robinson v. Myers, supra, and the subsequent cases relating to unopened streets and highways. When Justice Mercur, in delivering the opinion of this court, in Spackman v. Steidel, 88 Pa. 453, said: “Where the street called for a boundary is not a public highway, nor dedicated to public use the grantee does not take title in fee to the center of it, but by implication acquires an easement or right of way only over the lands,” and then cites the cases which we have above referred to (O’Linda v. Lothrop, and Robinson v. Myers), we think it is apparent that he had in mind cases where the deed called for a street that was unopened, as the two cases which he cites had reference to such unopened streets.

The authorities are uniformly to the effect that the question of whether the grant includes the fee to the bed of the highway, - is one of intention. The grantor in the present case did not expressly except from his conveyances the fee of the alley in the rear of the lots conveyed, and it is hardly reasonable to suppose that he intended to reserve a strip at the end of the four lots, three feet wide and eighty feet long, which he was subjecting to easements which, so long as claimed by the grantees, would prevent him from making any beneficial use of the fee in the strip. We think it is apparent that Caldcleugh in 1832 intended to part with his entire interest in the property, and that the alley was laid out and opened as stated in his deeds “for the accommodation of this and other lots adjoining thereto.” It will be recalled that the westernmost lot, No. 5, was described as being sixty-two feet in depth, and that Caldcleugh did not reserve the three feet at the rear of that lot. If he had intended to reserve to himself the fee in the alley, he would naturally have reserved the same space in the rear of lot No. 5. But he evidently conveyed that lot to its full depth because, as it was at the head of the alley, access could be had thereto without any such reservation. Neither the language of the deeds nor the situation of the ground, nor the circumstances connected with the conveyances, indicate any intention on the part of Caldcleugh to retain the fee to the bed of the alley, when he made the conveyances in 1832.

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


author: Mr. Justice Potteb,

text:
    Oliver v. Ormsby, Appellant.

      Deed — Boundaries—Alley—Call for alley.

    Whether an alley be public or private, if it be actually laid out and opened, and is appurtenant to the properties abutting upon it, on both sides, a call for the alley in a deed will carry the title to the center line, in the absence of an expressed intention by the grantor to the contrary.
    Argued April 19, 1909.
    Appeal, No. 88, Oct. T., 1909, by defendants, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1909, No. 801, on bill in equity in case of George T. Oliver et al., Trustees of Henry W. Oliver, deceased, v. Robert G. Ormsby et al.
    Before Pell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction and to quiet title. Before Swearingen, P. J., of C. P. No. 4, specially presiding.

      The following plan indicates the locality of the alley:
    Plan re-recorded in Deed Book Vol. 66, page 255 Grave Yard.
    240 feet 9 inches.

    240 feet 9 inches.
    Smithfield Street.
    The facts are stated in the opinion of the Supreme Court.
    The court entered the following decree:
    And now, to wit: March 23, 1909, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows, viz.:
    That the plaintiffs are the lawful owners in fee simple of the land formerly occupied by Freiheit’s alley, originally called Carpenter’s alley, in the city of Pittsburg, and extending ten feet in width from Oliver avenue to Sixth avenue; and,
    That plaintiffs have a lawful right to the exclusive use and occupation of the said strip of land formerly occupied by said alley.
    That the defendants are jointly and severally perpetually enjoined from any interference whatever with the possession and use of said strip of land formerly occupied by said alley, by the plaintiffs, and from any interference with the erection over said strip of land of the office building now being erected by the said plaintiffs.

      That the foregoing decree is also entered pro confesso against all the defendants who have not entered appearances or filed answers in said cause.

      Error assigned among others was the decree of the court.

      Wm. M. Hall, with him G. C. Burgwin, A. P. Burgwin, Frank C. Osburn, Chas. Gibbs Carter and George C. Flowers, for appellants. —
    The rule applicable to an unopened street or private way is different from that applicable to a public street: Cole v. Philadelphia, 199 Pa. 464; Spackman v. Steidel, 88 Pa. 453; Ott v. Kreiter, 110 Pa. 370; Hobson v. Philadelphia, 150 Pa. 595; McNeal v. Rebman & Co., 168 Pa. 109; Gamble v. Philadelphia, 162 Pa. 413.

      David T. Watson, of Watson & Freeman, with him H. O. & B. H. Evans and Robert Woods Sutton, for appellees. —
    It should be regarded as settled in Pennsylvania since the case of Ellis v. The Academy of Music, 120 Pa. 608, that where one owning land, lays out lots and an alley on which they front, and sells the lots calling for the alley as a boundary, that the title of the grantee goes to the center of the alley, even though a private one, and when the title of all the lots on both sides of the alley vests in the one person, this person becomes the owner of the entire alley: Haas v. Bergen, 167 Pa. 408; Rice v. Clear Spring Coal Co., 186 Pa. 49; Schmoele v. Betz, 212 Pa. 32; Holmes v. Bellingham, 7 C. B. (N. S.) 329; Smith v. Howden, 14 C. B. (N. S.) 398; McKenzie v. Gleason, 184 Mass. 452 (69 N. E. Repr. 1076); Lemay v. Furtado, 182 Mass. 280 (65 N. E. Repr. 395); Clark v. Parker, 106 Mass. 554; Boston v. Richardson, 95 Mass. 146; Winslow v. King, 80 Mass. 321; Pinkerton v. Randolph, 85 N. E. Repr. 892; Freeman v. Sayre, 48 N. J. L. 37 (2 Atl. Repr. 650); Pitney v. Huested, 8 App. Div. (N. Y.) 105; White’s Bank of Buffalo v. Nichols, 64 N. Y. 65; Jarstadt v. Morgan, 48 Wis. 245 (4 N. W. Repr. 27); Paine v. Consumers’ Forwarding & Storage Co., 71 Fed. Repr. 626; Bentley v. Root, 19 R. I. 205 (32 Atl. Repr. 918); Stockwell v. Fitzgerald, 70 Vt. 468 (41 Atl. Repr. 504).

      May 3, 1909:
   Opinion by

Mr. Justice Potteb,

This bill in equity was filed by the trustees under the will of Henry W. Oliver, deceased, and by his widow and daughter, against the heirs of Oliver Ormsby, deceased, praying for a decree to quiet the title of plaintiffs to a strip of ground, latterly known as Freiheit’s alley, situated in what is now the second ward of the city of Pittsburg, ten feet in width and lying sixty feet westwardly from and parallel with, Smithfield street, and extending from Sixth a/enue southwardly to Oliver avenue. Plaintiffs base their claim upon the following facts: In 1812 Oliver Ormsby was the owner of two adjoining lots in the plan of the town of Pittsburg. These lots were numbered 433 and 434, and each of them fronted sixty feet on Sixth street, and No. 433 ran southwardly along Smithfield street 240 feet to Virgin alley. Mf. Ormsby made a plan, subdividing lot No. 433 into eleven smaller lots, and running an alley, called Carpenter’s alley, between Nos. 433 and 434, ten feet in width, extending from Sixth street to Virgin alley. This plan he acknowledged and recorded in 1814 and on the plan he placed the following statement: “ In consideration of sundry advantages, I do hereby give and grant for the use of an alley 10 feet of ground in breadth along the southeast side of said lot number 434, extending through from Sixth Street to Virgin Alley, for the accommodation of the persons who may hold the said 11 lots, and for the accommodation of the owner or owners of the remainder of said lot, No. 434, which said 10-foot alley, calied Carpenter’s Alley, shall be and remain open forever for the uses and purposes aforesaid.”

Subsequently Mr. Ormsby laid out the residue of said lot No. 434 into eleven other lots, each of which fronted on the westerly side of Carpenter’s alley. All the lots in the plan were sold by Mr. Ormsby, and in the deeds Carpenter’s alley was called for as a boundary, and these words were added: “Together with the free use and privilege of the said alley called Carpenter’s alley, as by the plan intended to be recorded in the office for recording of deeds in and for Allegheny County, relation thereunto being had, will more fully appear.” By various mesne conveyances all of the lots fronting upon both sides of Carpenter’s alley became vested in the trustees under Henry W. Oliver’s will, thus covering the frontage on both sides of the alley running from Sixth street to Virgin alley. It appears from the evidence that this Carpenter’s alley was opened, laid out and in actual use from 1812 down to within a short period of the filing of the bill in this case. It further appears that in 1881 the name of Carpenter’s alley was changed to that of Freiheit’s alley by the city of Pittsburg by ordinance duly paised. The alley was paved twice. Its use was granted by the city to a telephone company for the purpose of laying conduits under the surface. The alley was policed, and cleaned and kept in order by the city. On November 27, 1908, the alley was vacated by an ordinance of the city q|f Pittsburg under an agreement with the trustees under the will of Henry W. Oliver,^that in the erection of a proposed building upon their land running from Virgin alley, now called Oliver avenue, to Sixth street, they would construct and maintain a corridor for public use, extending from Oliver avenue to Sixth avenue, through said building, located about forty feet west of the location of Freiheit’s alley, and at the grade of said alley. This corridor to be for the use of the public for foot passengers only, and to be kept open to the public as required by the city of Pittsburg.

In their answers filed, the defendants deny that the legal effect of the language used on the plan, and in the deeds of Ormsby, gives the plaintiffs title in fee simple to the soil of the alley, and they aver that plaintiffs have but an easement or right of way over the alley, which has now been abandoned. They deny that the alley ever became a public highway, and aver that it was only a private way.

The court below reached the conclusion that Carpenter’s alley as marked upon the pl^ns of Oliver Ormsby, was dedicated to public use. That being a public highway of the city of Pittsburg, the ordinance of the city, by which it was vacated, was effectual. That the conveyance of lots abutting on said alley by Oliver Ormsby, in which the alley was called for a boundary, passed title to the purchasers, to the middle line of the alley. That when the alley was vacated, the plaintiffs who then owned all the land abutting upon the alley, succeeded to the exclusive right to use and occupy the soil of the alley.

The main contention of counsel for appellants is, that the alley in question was not a public highway, but was a mere easement, or private way. If it were necessary to rest thS decision upon that point alone, we would not hesitate to accept the finding of fact, in that respect, of the trial judge. There was ample evidence to support the finding that Carpenter’s alley was actually opened upon the ground, in accordance with the plan of Oliver Ormsby, and that it was in continuous use by the public, for a period of more than sixty-five years, and that during much of that time it was under the control and supervision of the municipal authorities, the same as other public highways.

If Carpenter’s alley was a public highway, that is the end of appellant’s contention; for as this court said, in Neely v. Philadelphia, 212 Pa. 551, speaking through Justice Mestrezat (p. 557): “It may now be regarded as settled by our decisions that a conveyance of land bounded by a public road or street gives the grantee title to the middle of the road or street, if the grantor had the title to it, and did not expressly or by clear implication reserve it.” But we go further than this, and hold that whether the alley be public or private, if it be actually laid out, and opened, and is appurtenant to the properties abutting upon it, the rule is the same, the call for the alley will carry the title to the center line, in the absence of an expressed intention by the grantor to the contrary. We have this day filed an opinion in Saccone et al. v. West End Trust Co. et ah, ante, p. 554, in which this court so held, and the facts of this case make even more appropriate the application of the same rule.

As suggested in the argument of counsel, a private alley is usually narrower, though ordinarily not so long as a public highway, and it is for that reason all the more improbable that the owner who dedicates it, and sells the lots abutting thereon, intends to reserve to himself the fee in a harrow strip which would be useless to him, except as a means of harassing the owners of the adjoining lots. In the present case, the lots were sold upon the faith of the alley, as it was shown upon the plan, and the deeds called for the alley as a boundary. We can see no interest that the grantor could have had under the circumstances in reserving the ownership of the soil in the alley, and no reason why the rule of construction applied to conveyances bounding upon a public highway, should not be applied in this case. This is the rule set forth in the text-books, as sustained by the weight of authority. In Jones on Real Property, sec. 448, it is said, “It is an established rule that a conveyance of land, bounded by or along an existing way, whether public or private, carries the title to the center of the way, subject of course to the public use of it as a highway, unless there be something showing an intent to the contrary.” As'we pointed out in Saccone v. West End Trust Co., ante, p. 554, all the authorities hold that the question whether the grant includes the fee of the street, or alley, is one of intention. We see nothing in this record to indicate that Ormsby intended to except from his conveyances the fee in the alley in question; and on the other hand, there is much in the circumstances connected with the laying out of the plan of lots, and in their situation, and in the language of the deeds, referring to the alley, to manifest his intention of parting with the fee, and dedicating it to the use of the adjoining lot owners.

The assignments of error are dismissed at the cost of the appellants, and the decree of the court below is affirmed.


text:
    Young’s Estate.

      Decedents’ estates — Trusts and trustees — Burial lot.

    Where a testator dying in 1785 devised to trustees a lot of ground for the burial of the dead of his family, but leaves no fund for its care, and the lot falls into disuse, and becomes valuable for other purposes, the orphans’ court may decree its sale, and order the proceeds to be used part in buying a lot in an established cemetery, part in removing the dead, and marking the graves in the new lot, part in caring for the lot in the future, and the remainder to be divided among the heirs of the testator. In making such an order the court commits no error in refusing to appropriate a portion of the proceeds for a separate and elaborate monument to the testator.
    May 10, 1909:
    Argued Jan. 11, 1909.
    Appeal, No. 247, Jan. T., 1908, by Henry K. Leech and Isaac L. Glascoe, substituted trustees, from decree of O. C. Phila. Co., dismissing exceptions to adjudication in Estate of William Young, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication of Lamorblle, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing exceptions to adjudication.

      Lewis Lawrence Smith, for appellants. —
    The principle of the cases is that an allowance will be made for a tombstone or monument reasonable, as compared with the size and circumstances of the estate, especially where the greater number of the parties in interest do not object to the expenditure: McGlinsey’s Appeal, 14 S. & It. 64; Porter’s Estate, 77 Pa. 43; Barclay’s Estate, 2 W. N. C. 447; Connelly’s Estate, 28 Pitts. L. J. 352; Webb’s Est., 165 Pa. 330.
    The trust which William Young created was a valid perpetual trust,- — not alone for himself but for a large class, — and, in this light, is a charitable use: Jones v. Habersham, 107 U. S. 174 (2 Sup. Ct. Repr. 336); Brown v. Lutheran Church, 23 Pa. 495; Smith’s Estate, 181 Pa. 109; Nauman v. Weidman, 182 Pa. 263.

      John C. Hinckley and Robert H. Hinckley, for appellees.—
    The court committed no error in refusing an award for an elaborate monument: McGlinsey’s App., 14 S. & R. 64; Porter’s Est., 77 Pa. 43; Barclay’s Est., 2 W. N. C. 447; Connelly’s Est., 28 Pitts. L. J. 352.
    The purposes of the trust having failed the trust is at an end: Yarnall’s Appeal, 70 Pa. 335; Ogden’s Appeal, 70 Pa. 501.
   Opinion by

Mr. Justice Potter,

The appellants in this case are substituted trustees under-the will of William Young, who died in 1785. By his will he placed a tract of ground in trust for all his heirs and their families and descendants, to be used as a family burying ground. A portion of this ground was actually so used. No funds were given to the trustees to enable them to maintain the burying ground. It fell into disuse, and as the city grew around it, the ground became valuable for other purposes.

Under the provisions of the Price act, the land was sold for $25,000 and under the decree of the orphans’ court, the trustees purchased a suitable lot in Arlington cemetery and removed the bodies which were in the old burying ground, to the new resting place. An agreement was made with the cemetery company to provide for the perpetual care of the plot, and the orphans ’ court has allowed the sum of $3,500 to be expended in properly marking the graves. After these matters were all provided for, there remained a sum amounting to about $10,000 which the orphans ’ court directed should be distributed among the heirs of William Young. Exceptions filed by the trustees to the distribution were overruled and they have taken this appeal.

We agree with the auditing judge in his statement that there seems to be no good and sufficient reason why distribution should not be made. The duties of the trustees are at an end. It is not clear that the trustees have any standing to object to the distribution; certainly the trust will not be maintained for the benefit of the trustees. Nor can we say that the auditing judge was wrong in refusing to make an allowance for a separate and elaborate monument to the founder, William Young. No provision for anything of the kind was made in the will of the testator. The amount allowed for markers for all the graves was liberal, and the court below was apparently of the opinion that no need was shown for a more elaborate monument at the grave of William Young than at the others in the plot.

We do not feel called upon to interfere with the discretion thus exercised. The specifications of error are overruled and the decree of the orphans ’ court is affirmed.


author: Per Curiam,

text:
    Duross, Appellant, v. Singer.
    May 10, 1909:

      Deed — Alley—Easement.
    1. The grant of a fee subject to an easement carries with it the right to make any use of the servient soil that does not interfere with the easement, and this right cannot be abridged by words used in the granting clause unless the intention to limit the estate is clearly expressed or is a necessary implication from the words used. A restriction cannot be imposed upon a clear grant by merely naming one of its incidents. The rule that a deed or grant will be construed most strongly against the grantor applies with especial force to the restriction in a deed.
    2. Where an owner of land grants title to the soil of an alley in fee with a reservation to owners of other lands to the use of the alley, but with the privilege to the grantee to build over the alley “ at the same height and of the same depth as the same is now built over,” the grantee and his successors in the title are not restricted from building over the alley to a greater depth.
    Argued Jan. 15, 1909.
    Appeal, No. 305, Jan. T., 1908, by plaintiffs, from decree of C. P. No. 1, Phila. Co., June T., 1908, No. 3,527, dismissing bill in equity in case of Mary T\ Duross et al. v. Herman Singer.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Brégy, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      F. B. Bracken, of Loughlin & Bracken, for appellants.

      Alex. Simpson, Jr., with him A. S. Ashbridge, Jr., for appellee.
   Per Curiam,

The plaintiffs are the owners of property No. 609 South street, Philadelphia, and the defendant is the owner of the adjoining property to-the west, No. 611. The prayer of the bill is for an injunction to restrain the defendant from building over the rear end of an alley on the east side of his lot, laid out prior to 1810 for the common use of the owners of both lots. The ownership of the soil of the alley is in the defendant and bis right to maintain a building over it supported by an archway to the depth of twenty-five feet and eleven inches from South street is conceded; but the right to build over it to a greater depth is disputed. The case was heard on bill and answer. The averments of the answer that the extension of the archway as proposed by the defendant will not interfere with the use of the alley as a passageway and water course nor exclude light necessary for its proper use, being taken as true, narrow the dispute to the single question whether the deed creating the easement restricted the right of the grantee and his assigns to build over the alley to a greater depth than that to which it was built over at the time of the conveyance.

The grant to the plaintiffs ’ predecessor in title in 1810 gave him an easement in the following language: “Together with the free use and privilege of the said alley for free ingress .... in common with the owners, tenants and occupiers of the adjoining lot to the westward and of. a water course therein, reserving to the owner of said adjoining lot to the westward the right of building over the said alley at the same height and of the same depth as the same is now built over. . . .” In a deed of the same date in the defendant’s chain of title it is recited that a former owner had left open the easternmost two feet and eleven inches of his lot as an alleyway for the common use of his lot and the adjoining lot to the eastward, and there was excepted and reserved out of the grant to and for the use of the owners of the adjoining lot to the eastward the free use of the alley, the grantee to have the right and privilege of building over the alley of the depth of the building then erected.

It is not controverted that the owner of land who grants a right of way over it conveys nothing but the right of passage and reserves all the other incidents of ownership, and may build over the way provided he does not materially impair the use of the easement by obstructing the way and shutting off the light necessary for its reasonable and convenient use. It is, however, contended that the stipulation in the deed of 1810 that the grantee of premises No. 611 South street and his assigns should have the right to build over the alley to the same extent that it was then built over, created by implication a restriction against building beyond the limit prescribed. The plaintiffs’ case rests upon this proposition.

The grant of a fee subject to an easement carries with it the right to make any use of the servient soil that does not interfere with the easement, and this right cannot be abridged by words used in the granting clause unless the intention to limit the estate is clearly expressed or is a necessary implication from the words used. A restriction cannot be imposed upon a clear grant by merely naming one of its incidents. The rule that a deed or grant will be construed most strongly against the grantor applies with especial force to the restriction in a deed: Klaer v. Ridgway, 86 Pa. 529.

The judgment is affirmed.


text:
    Manning v. Bader, Appellant.

      Will — Life estate — Devise—Children.
    1. Prima facie the word “ children ” is a word of purchase and not of limitation, and standing alone without qualification it must be given its ordinary meaning. It will not be construed as a word of limitation unless there is found in the will an intention so to use it. That the first taker had no children when the will was made or when it went into effect does not warrant such a construction where the gift to the children is not immediate but by way of remainder.
    2. A devise of land to the widow of a deceased son, and after her death to her children, vests only a life estate in the widow, although she had no children when the will was made, or when it went into effect.
    Argued Feb. 1, 1909.
    Appeal, No. 164, Jan. T., 1908, by defendants, from judgment of C. P. Lehigh Co., Sept. T., 1907, No. 48, for plaintiff on case stated in suit of Almeda Manning v. Caroline Bader and Amanda Bader.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      May 10, 1909:
    Case stated in ejectment for land in the city of Allentown. Before Trexler, P. J.
    The opinion of the Supreme Court states the case.

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

      Arthur G. Dewalt, for appellants.

      Marcus C. L. Kline, with him Edwin K. Kline, for appellee.
   Per Curiam,

The devise was “to Cecilia Hittle, the wife of my deceased son, Elias Keiper, the lot where I am now living. . . . After the death of Cecilia, the above described lot shall go to her children.” Prima facie the word “ children ” is a word of purchase and not of limitation, and standing alone without qualification it must be given its ordinary meaning. It will not be construed as a word of limitation unless there is found in the will an intention so to use it. That the first taker had no children when the will was made or when it went into effect does not warrant such a construction where the gift to the children is not immediate but by way of remainder: Cote v. VonBonnhorst, 41 Pa. 243; Curtis v. Longstreth, 44 Pa. 297; Keim’s Appeal, 125 Pa. 480; Lancaster v. Flowers, 198 Pa. 614.

We find nothing in the other parts of the will that indicates an intention to use the word “children” as a word of limitation.

The judgment is affirmed.


text:
    United States Circle Swing Company v. Reynolds, Appellant.

      Replevin — Parties—Intervention—Trial—Pleading.
    1. Where in an action of replevin by a corporation against two defendants, a third person intervenes, first claiming all of the property replevied, but subsequently claiming only a small portion which is conceded, and the defendants file only a plea to the effect that plaintiff is not a corporation, the trial court commits no error in directing the jury to be sworn as to the intervenor only, and in instructing the jury that no question of title is involved, and that their duty is simply to determine the value of the goods replevied. In such a case the plea filed by defendants was a plea in bar, and the case was therefore at issue only between the plaintiff and the intervenor. There was no verdict or judgment against the defendants and they had no standing to appeal.

      Corporations — Foreign corporations — Registration—Replevin—Act of April 22, 1874, P. L. 108.
    2. A foreign corporation need not be registered under the Act of April 22, 1874, P. L. 108, to enable it to maintain an action of replevin in this state to recover personal property which had been taken from it by one who had no contractual relation with the company.

      Practice, C. P. — Objectionable remarks of counsel — Discretion of court.

    3. A judgment will not be reversed because of alleged objectionable remarks of counsel, where it appears that the trial judge instructed the jury to disregard such remarks, and in his opinion refusing a new trial, states that he believes the jury were not influenced as to the amount of the verdict by the alleged offensive remarks.
    Argued Feb. 24, 1909.
    Appeal, No. 7, Jan. T., 1909, by-defendants, from judgment of C. P. Lackawanna Co., Sept. T., 1906, No. 196, on verdict for plaintiffs in case of United States Circle Swing Company v. Annette Reynolds and Arthur Frothingham, trading as the Rocky Glen Park Company, and W. B. Reynolds.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Replevin to recover an apparatus known as a- circle swing. Before Edwards, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Verdict and judgment for plaintiffs for $3,350. Defendants appealed.

      Errors assigned among others were as follows:
    1. The learned court erred in not continuing the case and striking same from list; the motion, order and exception being as follows:
    Now, October 2, 1908, come the defendants and move the court to strike the said case from the list for the reason that the said case was not at issue and settled for trial before the venire issued for the jury now in court, as required by the Act of April 14,1834, P. L. 333, sec. 96.
    Motion refused. Exception noted.
    2. The learned court erred in directing the jury to be sworn • as to William B. Reynolds only, the order and exceptions being as follows:
    Now, October 2,1908, on motion of attorneys for defendants an exception is noted and bill sealed to the action of the court in directing the jury to be sworn as to William B. Reynolds only, as defendant in this case, and not as to any other defendant.
    3. The learned trial judge erred in allowing the jury to be sworn under the pleadings, the motion, order of court and exception being as follows:
    Now, October 2, 1908, defendants object to the swearing of a jury in this case, for the reason that the case is not at issue as to all the parties of record; and further, that no replication has been filed to the plea of abatement filed by defendants, and no affidavit or defense or plea by the other defendants.
    15. The learned court erred in its charge to the jury as follows, to wit:
    This case, so far as your connection with it is concerned, is a very simple one; you have only to pass on one question of fact, and that is the value of the property described in the writ of replevin in this case.
    18. The learned court erred in refusing the third point presented by the defendants.
    The pleadings and the evidence in this case showing that the plaintiff company was at one time a foreign corporation, and while being such foreign corporation did engage in business in the state of Pennsylvania and conducted and carried on said business for a period of a year or thereabouts in the operation, management and control of the property now sought to be replevied without having registered as required by the Act of April 22, 1874, P. L. 108, it is incapable of instituting or maintaining a suit in the state of Pennsylvania and cannot recover in this action. Answer: Refused.
    22. The learned court erred in refusing to withdraw a juror and continue the case on motion of counsel for defendants based upon an affidavit of improper remarks by counsel for the plaintiffs to the jury, the affidavit, motion and ruling being'as follows:
    M. J. Martin, being duly sworn according to law, deposes and says that he is counsel for the defendants and that Clarence Balentine is counsel for the plaintiffs, and that while said Clarence Balentine was arguing the case to the jury he referred to the defendants’ witnesses, Arthur Frothingham and Annette Reynolds, and stated to the'jury that they “are a pair of unmitigated pirates.”
    There is no evidence in the case to warrant any such remark.
    The defendants upon filing within affidavit move that a juror be withdrawn and the case continued on account of improper remarks by counsel to the jury.
    Now, October 3, 1908, motion refused, exception noted.

      A. A. Vosburg, and M. J. Martin, with them C. W. Dawson, for appellants. —
    The plea in abatement was properly filed, and was a preliminary matter to be passed upon: Seibert v. McHenry, 6 Watts, 301; Freeland v. Ins. Co., 49 Pa. 504.
    In ejectment defendants may plead in abatement that the plaintiff is a fictitious person: Campbell v. Galbreath, 5 Watts, 423.
    A plea in abatement was not abolished by the procedure act of 1887: Virtue v. Ioka Tribe, 5 Pa. Dist. Rep. 634; Sheetz v. Ry. Co., 25 Pa. C. C. Rep. 177.

      May 10, 1909:
    TÍie eighteenth assignment of error questions the ruling of the court as to the right of the plaintiffs, as a foreign corporation, to enforce a contract in this state without having registered under the provisions of the Act of April 22, 1874, P. L. 108.
    Such registration is a condition precedent to the lawful transaction of business in this commonwealth, and a foreign corporation must show, as a part of its case, that it has complied with the act: Phœnix Silk Mfg. Co. v. Reilly, 187 Pa. 526; Travellers’ Ins. Co. v. Heath, 95 Pa. 333; Lasher v. Stimson, 145 Pa. 30.
    We contend that the abusive and unwarranted remarks of counsel for plaintiffs, in his closing address to the jury, were of such a nature that a continuance should have been at once directed by the court: Holden v. Penna. R. R. Co., 169 Pa. 1.

      Clarence Ballentine, with him John P. Kelly, for appellees.
   Opinion by

Mr. Justice Potter,

This was an action of replevin for an amusement device known as a circle swing. The suit was brought by the United States Circle Swing Company against Annette Reynolds and Arthur Frothingham, trading as the Rocky Glen Park Company, a partnership. On June 8, 1906, Annette Reynolds, as the agent of her brother, William B. Reynolds, filed an affidavit that the property replevied belonged to him; and upon this petition, sworn to by Annette Reynolds, the said William B. Reynolds was permitted to intervene as party defendant. Thereafter he filed an affidavit of defense in which he claimed to have bought the property replevied at a landlord’s sale, and that he was at that time the owner of the said property by virtue of the title so acquired. When the case was called for trial William B. Reynolds, by Annette Reynolds, his attorney in fact, presented a petition, asking leave to amend his former affidavit of defense so as to limit his ownership to a small portion of the apparatus, consisting of six cars. His claim to this much was conceded by the plaintiffs. Upon the trial the court directed the jury to be sworn as to William B. Reynolds alone as a defendant; and took the position that under the pleadings there was no question of ownership of the property at issue, and instructed the jury that the only fact to be determined by them was the value of the goods replevied. The verdict was for the plaintiffs for all the property described in the writ of replevin, except the six cars, and was for the defendants, as to them. This appeal has apparently been taken by Annette Reynolds and Arthur Frothingham, but as there was no judgment against them, they have no standing to appeal; and as William B. Reynolds obtained judgment for all that he claimed at the trial, his ground of appeal is not clear. We see no error in the refusal of the court to strike the case from the list, or in directing the jury to be sworn as to William B. Reynolds. The case was at issue as to him alone. The record does not show whether the objection to the swearing of the jury as to William B. Reynolds alone was made on behalf of all the defendants or not. If it was on behalf of Annette Reynolds and Arthur Frothingham, they have no reason to complain; for there is no verdict or judgment against either of them. If the objection was made on behalf of William B. Reynolds, it is apparent that he was not prejudiced in any way by the trial. In the affidavit of defense which he first filed, he claimed all of the property in suit, and set forth that he acquired it at constable's sale, and by assignment from the other defendants. This claim was inconsistent with the existence of any right of property whatever on the part of the other defendants. For some reason, before the trial he withdrew his claim to the greater part, of the property, but the case was still at ’issue as to him, and the plaintiff was entitled to have the case tried.

It is also contended that the court below erred in permitting the jury to be sworn as to William B. Reynolds alone, for the reason that Annette Reynolds and Arthur Frothingham, the original defendants, had filed what was alleged to be a plea in abatement, in which they averred that the suit was brought in the name of a fictitious person, and that there was no such corporation as the United States Circle Swing Company. This was not a plea in abatement, for its effect would be, not merely to abate this particular suit, but to destroy the right of action itself. It does not pretend to give the plaintiffs a better writ, or point out a mistake which might be avoided by the plaintiffs in forming their new writ. This requirement has often been made the test by which to distinguish whether a given matter should be pleaded in abatement or in bar. The effect of the matter here set out was to impugn the right of action altogether. It was therefore a plea in bar, and not in abatement. The defendants Annette Reynolds and Arthur Frothingham filed no response to the writ of replevin, except this alleged plea in abatement, but which was as we have pointed out, really a plea in bar. William B. Reynolds had intervened, and given a counter bond and filed an affidavit of defense, claiming to own the property. The case was therefore at issue between the plaintiffs and the intervening defendant alone. When the case went to trial it was unnecessary for the plaintiffs to offer any evidence of its title because, as the record then stood, the declaration of the plaintiffs was uncontradicted by any of the pleadings in the case, except as to the ownership of the six small cars. We think the trial judge was clearly right in his view that the only question left for the consideration of the jury was the value of the property.

In the eighteenth assignment of error, complaint is made of the ruling of the court below as to the right of the plaintiffs to bring this action, without being properly registered under the Act of April 22, 1874, P. L. 108. But the question does not seem to have been raised in the affidavit of defense, and was not apparently an issue in the case. But in so far as the facts of this case go, they disclose nothing which would forbid the plaintiff, as a foreign corporation, to maintain an action in the courts of Pennsylvania, to recover its personal property. William B. Reynolds who claimed and retained the property, had no contract relations with the plaintiffs, and he would therefore have no standing to object that the plaintiff corporation was doing business in this state, without having complied with the registration act. This principle is clearly set forth in King Optical Co. v. Royal Insurance Co., 24 Pa. Superior Ct. 527.

It is further contended that objectionable remarks made by counsel for plaintiffs in his address to the jury were of such a nature that the court erred in refusing to withdraw a juror and continue the case. The trial judge instructed the jury to disregard any remarks made by counsel outside of the evidence, and in his opinion refusing a new trial, he states that he believes the jury were not influenced as to the amount of the verdict, by the alleged offensive remarks of counsel. We see no reason for doubting the correctness of his conclusion in this respect. Nor do we see any merit in any of the questions raised by the assignments of error. They are overruled, and the judgment is affirmed.