author: Mr. Chief Justice Mitchell,

text:
    Liquid Carbonic Company v. Wallace, Appellants.

      Easements — Ways—Intention—Vendor and vendee.

    Where an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement in favor of another part, and then aliens either, the purchaser takes subject to the burden or the benefit, as the case may be.
    The intent which litis at the basis of the creation of a -servitude is not the grantor’s actual and perhaps undisclosed intent, but the mutual intent of the parties as gathered from their acts and the circumstances as well as from their words.
    These rules apply to a road laid out on a part of a tract of land. If the road is apparent on the ground and is the only road practicable to have access to the land, and there is nothing upon the ground to show that it was not intended to be permanent, the inference is that the road was intended to be permanent; and a grantee of another portion of the land is entitled to draw such inference without regard to the grantor’s actual but undisclosed intent.
    Argued Oct. 30, 1907.
    Appeal, No. 74, Oct. T., 1907, by defendants, from decree of C. P. No. 2, Allegheny Co., July T., 1906, No. 276, on bill in equity in case of Liquid Carbonic Company v. William T. Wallace and People’s National Bank.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Before Shafer, J.

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

      Error assigned was decree awarding an injunction.

      J. Roy Dickie, with him Wm. W. Wishart, for appellants.
    A servitude will not arise from a mere temporary convenience adopted by the owner in the enjoyment of his land: Phillips v. Phillips, 48 Pa. 178; Francies’s Appeal, 96 Pa. 200; Adams’s Appeal, 7 W. N. C. 86.
    That it may become a servitude, the quality or fact impressed upon the land by the owner of the whole must be of a permanent nature, notorious and plainly visible, and such that from its character it may be fairly presumed that the owner of the whole was desirous of and in tended its preservation permanently as a servitude: Phillips v. Phillips, 48 Pa. 178; Overdeer v. Updegraff, 69 Pa. 110; Cannon v. Boyd, 73 Pa. 179; Building Assn. v. Getty, 11 Phila. 305; Francies’s Appeal, 96 Pa. 200; Zell v. Universalist Society, 119 Pa. 390; Geible v. Smith, 146 Pa. 276; Grace M. E. Church v. Dobbins, 153 Pa. 294; Manbeck v. Jones, 190 Pa. 171.

      David A. Reed, of Reed, Smith, Shaw & Beal, with him Thomas S. Shultz, for appellee.
    The injunction was properly granted: Seibert v. Levan, 8 Pa. 383; Kieffer v. Imhoff, 26 Pa. 438; Phillips v. Phillips, 48 Pa. 178; Geible v. Smith, 146 Pa. 276; Grace M. E. Church v. Dobbins, 153 Pa. 294; Ormsby v. Pinkerton, 159 Pa. 458; Manbeck v. Jones, 190 Pa. 171; Overdeer v. Updegraff, 69 Pa. 110; Cannon v. Boyd, 73 Pa. 179; Zell v. Universalist Society, 119 Pa. 390.
    January 6, 1908:
   Opinion by

Mr. Chief Justice Mitchell,

The legal principle governing this case is thus expressed in Grace M. E. Church v. Dobbins, 153 Pa. 294, “Where an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement in favor of another part, and then aliens either, the purchaser takes subject to the burden or the benefit, as the case may be.” See also Manbeck v. Jones, 190 Pa. 171.

The facts are not in material dispute. In 1890 Wallace, one of appellants, became the owner of a large lot of ground in the twentieth ward of the city of Pittsburg. It was bounded by three streets and the Pennsylvania railroad, but being hilly and uneven, access to parts of it was difficult or very inconvenient. Wallace began to grade it, and in the course of so doing roads were worn here and there over the property by the hauling incident to grading, the principal road so worn or constructed being in substantially the same position as that over which the plaintiff now claims a right of way. In 1891, Wallace conveyed to the plaintiff a portion of said tract, bounded by the Pennsylvania railroad, two streets and other lands of Wallace afterwards conveyed to the Duquesne Reduction Company. At the time of sale by Wallace to plaintiff the said road was used upon the ground and appellants admit that stone quarried upon other land of Wallace and sold to the plaintiff was hauled down over it. Appellee used it in the erection of its buildings and claims that it was in general use by the owners of the adjacent properties for access, and it appeared that it had continued in such use until 1906 when appellants built a fence across it and plaintiff filed this bill.

The court found that it was the only wagon road on the lot, and that access from the streets by which the appellee’s lot was bounded was impracticable for loaded wagons at most points, and very inconvenient for any other purpose.

The learned court below refused to find the road a way of necessity, because there were other ways of access and egress however inconvenient, citing McDonald v. Lindall, 3 Rawle, 492.

The court, however, found that “ the road was apparent on the ground and there was nothing on the ground to indicate that it was not intended to be permanent.” He therefore found that the right to the use of the road passed by implication as an easement, appurtenant to the grant.

The argument of the appellant rests mainly on the view that the road having had its origin in temporary convenience to the owner of the larger lot was never intended to be permanent, and that the intention was an essential element in the creation of a servitude. The principle in general may be conceded, and so long as the ownership of the dominant and servient lands remains in the same party the application of the principle may be determined by his actual personal intent. But on a severance a question of conflicting rights arises and the intent which lies at the basis of the creation of a servitude is no longer the grantor’s actual and perhaps undisclosed intent, but the mutual intent of the parties as gathered from their acts and the circumstances, as well as from their words. This principle was well expressed in Hopewell Mills v. Savings Bank, 150 Mass. 519 (cited though in a different connection in Bank v. North, 160 Pa. 303). “ The intention to be sought is not the undisclosed purpose of the actor, but the intention implied and manifested by his act. It is an intention which settles, not merely his own rights, but the rights of others who have or may acquire interests in the property. They cannot know his secret purpose, and their rights depend, not upon that, but upon the inferences to be drawn from what is external and visible.”

The facts as found by the court in the present case were that Wallace was at the time of the sale “the owner of the land over which the way is claimed and of the land to which it is now claimed to be appurtenant. Before the grant, Wallace had laid out and opened upon the ground the road in question, and it was the only road by which it was practicable to have access to the land. The road was apparent on the ground, and there was nothing upon the ground to indicate that it was not intended to be permanent.” The natural inference from these facts would be that the road was intended to be permanent. That inference the grantee was entitled to draw without regard to the grantor’s actual but undisclosed intent, and it therefore became the law of the case.

Decree affirmed at the costs of appellant.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    State Council Junior Order of United American Mechanics of Pennsylvania, Appellant, v. Emery.

      Beneficial associations — Corporations—Subordinate lodges — Title to moneys — Side and funeral benefits.

    Funds raised by the members of a subordinate body of a beneficial association for sick and funeral benefits, belong to the subordinate association, and are to be distributed by it to the parties for whose use and benefit they were contributed. The revocation of the charter of a subordinate body by the supreme body cannot have the effect of confiscating the property owned absolutely by the local body. The Act of June 20, 1883, P. L. 132, does not change in any way the application of this principle in Pennsylvania.
    Where funds contributed by members of the subordinate body for sick and funeral benefits have been distributed to beneficiaries before a final decree of the court affirming the revocation of the charter of the subordinate body by the supreme body, the members of the subordinate body cannot be compelled by a court of equity to account to the supreme body for the fund in question; and this is especially so where it appears that the fund was in the hands of trustees, and had never in fact been in the hands of the members.
    Elkin, J., dissents.
    Argued Oct. 31, 1907.
    Appeal, No. 88, Oct. T., 1907, by plaintiff, from decree of C. P. No. 1, Allegheny Co., March T., 1905, No. 581-, dismissing bill in equity in case of State Council Junior Order of United American Mechanics of Pennsylvania v. William S. J. Emery et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an account. Before Oveb, J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      W. U. Hensel, with him A. D. Wilkin and Smith W. Bennett, for appellant.
    The corporation was created to carry out the general purposes of a beneficial society, which clearly in-elude the power to assume and to administer a trust, as here asserted, and as clearly do the general powers include the same: Derry Council v. State Council, 197 Pa. 413; Grand Lodge v. Germania Lodge, 56 N. J. Eq. 63 (38 Atl. Repr. 341).
    Majority of the members of the subordinate division of a beneficial organization, made up of numerous subordinate councils, cannot carry the division or its property over to another association, against the will of the minority: Gorman v. O’Connor, 155 Pa. 239; Kane v. Shields, 167 Mass. 392 (45 N. E. Repr. 758); Derry Council v. State Council, 197 Pa. 413; Union Benevolent Society v. Martin, 67 S. W. Repr. 38.
    Members seceding from an association, abandon their rights in the associate property to those who retain their membership in the, regular organization: Krecker v. Shirey, 163 Pa. 534; McGinnis v. Watson, 41 Pa. 9; Winebrenner v. Colder, 43 Pa. 244; Schnorr’s App., 67 Pa. 138; Roshi’s App., 69 Pa. 462; McAuley’s App., 77 Pa. 397; Gorman v. O’Connor, 155 Pa. 239; Bose v. Christ, 193 Pa. 13; Manning v. Shoemaker, 7 Pa. Superior Ct. 375; Washington v. White, 27 P. L. J. (N. S.) 338; Garrett v. Nace, 5 Pa. Superior Ct. 475; Kerr v. Trego, 47 Pa. 292; Presbyterian Congregation v. Johnston, 1 W. & S. 9; Sutter v. Trustees, 42 Pa. 503; Schubert Lodge v. Untersturzen Verein, 56 N. J. Eq. 78 (38 Atl. Repr. 347); Koerner Lodge v. Grand Lodge, 45 N. E. Repr. 1103; Kerm v. Arbeiter Verein, 102 N. W. Repr. 746.

      W. B. Rodgers, with him W. G. Negley, for appellee.
    — The jurisdiction or authority of a superior over a subordinate body in a patriotic, civic or fraternal benefit society, is limited to discipline and membership standing. The courts will not uphold any attempt on the part of the superior to interfere with the property rights of the subordinate: Austin v. Searing, 16 N. Y. 112; Carlton v. Southern Mutual Ins. Co., 72 Ga. 371; Birmingham v. Gallagher, 112 Mass. 190; Bauer v. Samson Lodge, 102 Ind. 262 (1 N. E. Repr. 571).
    A superior has no right to intermeddle with the funds of a subordinate body in which it has no interest: Independent Order of Foresters v. Donahue, 91 Ill. App. 585; Babb v. Reed, 5 Rawle, 151.
    When .a fund is created by voluntary contributions of the members of a subordinate body, a superior body cannot acquire an interest therein by forfeiture of the warrant of the subordinate body: Wicks v. Monihan, 130 N. Y. 232 (29 N. E. Repr. 139); Wells v. Monihan, 129 N. Y. 161 (29 N. E. Repr. 232); Merrill Lodge v. Ellsworth, 78 Cal. 166 (20 Pac. Repr. 399).
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

This was a bill in equity filed by the State Council Junior Order of United American Mechanics of Pennsylvania, a corporation, against William S. J. Emery and others, described as “ fourteen members of Duquesne Lodge, No. 110, Junior Order United American Mechanics of Pennsylvania, formerly an unincorporated beneficial society, and now pretending and assuming to act as such members and as officers of said Council.” There was no dispute as to the facts on which the suit was based.

It appears that a division in the state organization of the Junior Order of United American Mechanics arose in Pennsylvania during the year 1900, resulting in the formation of two factions. On October 2, 1900, Duquesne Lodge, No. 110, by formal resolution, declared its adherence to the faction of the state council, headed by S. B. Woods. The other faction recognized Wobensmith. Duquesne Council refused to pay to the state council organization, headed by Wobensmith, certain per capita taxes, and, for that reason, on August 22, 1901, the state council, acting in accordance with its constitution and by-laws, suspended the Duquesne council from the privileges of membership, and on January 6, 1903, revoked its charter for the same reason. On May 10, 1904, in quo warranto proceedings in court of common pleas, No. 4, of Philadelphia county, it was adjudged that the officers, headed by Wobensmith, were the legal officers of the state council, and that the Woods faction, to which the Duquesne council had given its adherence, was not entitled to the offices. This decree was not appealed from, and it is conceded that it has settled that controversy.

On November 29,1904, the state council, whose legality had been thus established, made demand upon defendants, as former members of the Duquesne council, for “ all the books, papers, charters, paraphernalia, funds and properties of whatsoever nature and kind” in their possession and control. Defendants tendered all the effects demanded except a sum of money contributed for sick and funeral benefits, and which was shown to have amounted on January 6, 1903, when the charter was revoked, to «$2,031.18. The present bill was filed to compel the defendants to account for and pay over this fund to the state council. While the prayers of the bill are drawn to cover all property and effects of the Duquesne council, the controversy between the parties is only as to the fund in question.

This fund was contributed by members of Duquesne council, prior to the date when its charter was revoked, under the following provisions in its constitution: “ The dues of this council shall be such sums as shall be prescribed by the bylaws, which shall in no case be less than ten cents per week, which shall constitute a fund for the relief of sick and disabled members, and such other purposes as the council may deem judicious and such further sums as the by-laws shall prescribe for funeral dues, or to sustain their treasury.”

“ Each council shall have power by their by-laws to credit the first money paid in by a member to his indebtedness for funeral and other charges, and the balance, if any, shall be credited to his dues.”

And the following by-laws : “ The regular weekly dues of each contributing member of this council shall be fifteen cents.”

“ The first money that a member pays into this council shall be credited on account of fines, funeral assessments, etc., he may owe, before any shall be credited for weekly dues.”

The court below found as its eleventh finding of fact, “that the funds of said council are a sick and funeral benefit fund, accumulated by voluntary contribution of the members thereof, and to which only members of said council have contributed, or can contribute, and of which only members, or their designated beneficiaries, are or can be beneficiaries, and are held by trustees elected by the contributors to it, and administered, since October 2, 1900, to the present time, by such trustees and their successors in office, according to the will and wish of the contributors and creators, for the purposes for which said funds were intended, and for the beneficiaries intended. And that said fund has not been held, used or employed or controlled by any person or body of persons except the" defendant council. And said fund is, under the laws of the said order, left to the control and discretionary management and disposition of said defendant council.”

The by-laws further provided that the funds of the council should be deposited in bank in the names of three trustees. This was done in the case of the fund in question. The court below further found as a fact that, after the notice of revocation on January 6, 1903, and before the decision of the Philadelphia court, May 10, 1904, “ the defendants, acting in good faith and believing that W oods and his associates were the legal officers of the state council, and that its relations with the national council had been dissolved by the resolution passed at the Lancaster meeting, operated under its charter until it was decided by the common pleas court of Philadelphia county that the resolution was void, and Woods and his associates were not officers, and paid out the trust fund in dispute, $2,037.18, to the persons and for the purposes for which it was contributed ; and, although the charter was revoked on January 6, 1903, the plaintiff made no protest or claim for the fund until almost two years thereafter.”

The claim of plaintiff is based on the following provisions in the charter of Duquesne council: “ And should the said Duquesne Council, No. 110, be dissolved by forfeiture or otherwise, then all books, papers, etc., the property of said council, shall become the property of the state council of Pennsylvania.” And on the following section from the laws of the national council: “ In the event of the disbanding of a council, the national or state council having jurisdiction shall collect its charter, private work, books and other property, which shall become, subject to a reorganization, the property of the national or a state council, as the case may be.”

It will be observed that no specific reference is made in these sections to any funds or money belonging to the subordinate council. The language would seem to apply only to such physical properties as the charter, books, lodge room accessories and paraphernalia appropriate to the use of the council as a subordinate body of the order. It can hardly be gathered from these provisions that it was the intention to take away funds contributed by the members of the local council for the benefit of their own members only, or to divert a sick and funeral benefit fund from the beneficiaries for whom it had been created and held in trust.

Appellants also laid claim to the fund in question under the Act of June 20, 1883, P. L. 132, requiring that upon the dissolution or expulsion of subordinate organizations such as this, the moneys, property and effects shall be delivered to the parent body, to be held for the same purposes and intents for which they were received by the subordinate association.

The conclusions of law reached by the court below were as follows:

1. The taxes levied by the national and state council of the Junior Order United American Mechanics of North America, which the defendants’ council refused to pay, were legally levied, and the charter of Duquesne Council, No. 110, was legally revoked.
“ 2. Although the trust fund was paid to persons who were not at the time of payment members of the plaintiff’s order, yet under the facts of the case the payments should be approved by a court of equity.
“ 3. As it does not appear that the trust fund, nor any part thereof, was paid to or received by the defendants, the plaintiff is not entitled to reliéf, and the bill must be dismissed at its costs.”

Upon the facts as found by the court below, we think its conclusions of law are sound. It does not appear that the state council had any plan or arrangement for the collection or payment of any sick or funeral benefits. All the beneficial features of that nature were left to the care of the local councils. This fund in question was made up entirely from the voluntary contributions of the members of the local council, placed in the hands of its trustees, to be disbursed by them for the benefit of the sick and the families of the dead of its members. With the control and administration of this fund the state council does not seem to have had anything to do. The authorities amply sustain the contention that funds raised by the members of subordinate bodies of this character, for sick and funeral benefits, belong to the subordinate association, and are to be distributed by them to the parties for whose use and benefit they were contributed. It is held that the revocation of the charter of a subordinate body by the supreme body cannot have the effect of confiscating the property owned absolutely by the local body.

The principle is thus stated in Niblack on Benefit Societies, sec. 129, p. 255: “The terms of the laws of the supreme lodge or council of a society, providing that on suspension of one of the local organizations its property shall be forfeited and vest in the secretary of the supreme body, are void, in that they seek to confiscate without judicial process property held and owned absolutely by the local organization,” citing Wicks v. Monihan, 130 N. Y. 232; Wells v. Monihan, 129 N. Y. 161; Austin v. Searing, 16 N. Y. 112.

“ Whatever powers the higher lodges in such an organization as this may have to make rules or laws for the government of the subordinate lodges and the discipline of their members, we think it quite certain that the courts can never recognize as valid any rule or law so made, the effect of which is to confiscate property, or arbitrarily to take away property rights from one set of members and give them to another set; nor will the courts allow or recognize the enforcement of any such rule when its enforcement will accomplish, and is designed to accomplish, such a result:” Goodman v. Jedidjah Lodge, 67 Md. 117 (127).

Another text-writer thus sums up the prevailing view of the courts as to this matter : “ In regard to the jurisdiction of superior over inferior bodies in an order or society, the courts will not enforce a forfeiture of the property rights of the latter, but may even interfere to prevent it. In such cases considerations of public policy will always prevail. In mere matters of discipline, where no property right is involved, the decisions of the superior organization, if regularly rendered and not intentionally unjust, will be regarded as final. . . . Forfeiture of the conventional charter of a society incorporated by the state will not divest its property, nor can the property be affected by a secession of part of its members. Even if unincorporated, the majority of a society have generally the right to cut loose from a superior governing body, and the minority have no redress if the property is used for the general purpose for which it was acquired:” 1 Bacon on Benefit Societies (1904), sec. 116.

Does the Act of June 20, 1883, P. L. 132, change in any way the application of this principle in Pennsylvania? We think not. It does not attempt to divest any property rights, and if it did it would be unconstitutional. When properly construed, we think it is intended to provide for the disposal of such property as belonged to the subordinate lodge as a whole and which in case of dissolution of the association, would belong to no one, as it was held in common by the membership of the local body, while in existence. We see no indication that it was intended to reach a special trust fund, contributed for a special local purpose, and for the benefit only of the sick, and the families of deceased members of the local council. But be that as it may, and without expressly deciding that point, it is clear that the act does expressly provide that whatever property is transferred, shall be taken and held upon the same trusts, and for the same purpose and intents for which it was received and held by the subordinate association, so that in any event it would in this case have to be held for the purpose for which created.

• It must further be noted that the statute provides that where the money has been improperly paid out by the subordinate society, it may be recovered from those who receive it. As the learned trial judge says,, there is neither averment nor proof that any part of the fund was paid to any of these defendants, so the bill was properly dismissed for that reason. The action of the court below is also vindicated by another reason suggested in the opinion. That is, the fund has already been distributed to the parties for whom it was contributed, and who would ultimately be entitled to it. They cannot be paid a second time, and therefore to allow a recovery here, would be to divert the fund from the purposes of the trust, and this would not only be in violation of the terms of the act of 1883, but of the constitutional provisions as to property rights. The fund was created in good faith at a time when the subordinate council was in good standing, to be paid out as sick and funeral benefits to its own members; and as a fact it was paid out in good faith to the persons, and for the purposes for which it was contributed, prior to the decision of the court which determined that it was in allegiance to the wrong faction. It will not do to say that such payment was void. We agree with the court below, that under the facts of the case the payments so made should be approved by a court of equity. To hold otherwise would be to say that equity should do an inequitable thing.

The assignments of error are overruled, the decree of the court below is affirmed, and this appeal is dismissed at the cost of the appellant.

Elkin, J., dissents.


author: Mr. Justice Mestrezat,

text:
    Love, Appellant, v. Robinson.

      Cemeteries — Cemetery lots — Burial of the dead — Partition.
    The heirs at law of the grantee of a cemetery lot have no right to a partition of the lot where it appears that the grant of the lot was subject to the rules and regulations of the cemetery company, and that among the rules was the provision that: “The heirs at law have jointly a right to the disposal and use of the property; neither of them alone has the right to the disposal of it.”
    Argued Oct. 31, 1907.
    Appeal, No. 76, Oct. T., 1907, by plaintiff, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1906, No. 106, dismissing bill in equity in case of Mary A. Love v. John W. Robinson and Andrew L. Robinson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for partition.
    Over, J., specially presiding, filed the following opinion:
    This is a bill for partition of land, and the only disputed question is whether or not a cemetery lot is a subject of partition.
    FINDINGS of fact.
    1. The parties to this bill are the owners in fee simple as tenants in common of the different tracts of land described in the first paragraph of the bill as numbers one and five, and the ground rents therein described numbers two, three and four, the undivided one-half being owned by Mary A. Love, the plaintiff, and an undivided one-fourth each by John W. Robinson, and Andrew L. Robinson, the defendants.
    2. The cemetery lot described as number six in said bill was conveyed July 1, 1864 by the Allegheny Cemetery Company to Mary Ann Robinson “ her heirs and assigns forever, subject however to the rules, conditions and limitations, and with the privileges specified in the rules and regulations hereto annexed, and such others as may hereafter be adopted” for the sole and only purpose of a place of burial. That the said lot under the direction and with the consent of the said Mary Ann Robinson, was used as' a burial place for the mother, father and brothers of said Mary Ann Robinson; that there were interred therein prior to the death of Mary Ann Robinson, her father, mother and brothers and upon her death in the year 1892 she was interred therein, and after her death James D. Robinson, her brother, was also interred therein ; and the said lot of ground is and has been the family burial ground of the older generations of the Robinson family, of which family1 the said plaintiff and defendants hereto form part. That the said lot is filled with the bodies of the ancestors and relatives of this defendant and said plaintiff, except that there is now space only for two interments therein.
    Mary Ann Robinson having died intestate, the land described in the bill and this lot descended to the parties hereto as her heirs at law.
    3. That on February 9, 1872, the said Mary Ann Robinson purchased from said cemetery company an endowment certificate, paying therefor the sum of $200, the income from which was to be perpetually expended by said Allegheny Cemetery Company for the protection and improvement of the lot, which said certificate is now and has been in full force and effect.
    4. That said Allegheny Cemetery was incorporated by an act of the general assembly of the commonwealth of Pennsylvania, entitled “ An Act to incorporate the Allegheny Cemetery of Allegheny County,” approved April 24, 1844, P. L. 375, for the purpose of maintaining a place for the burial of the dead, and under the said act of assembly and the supplements thereto, and in pursuance of which the said lot of ground was conveyed, it is provided that said cemetery shall have power “ To sell and dispose of said plots and burial lots in fee simple or otherwise, for the purpose of sepulture, to individuals, societies or congregations, without distinction or regard to sect, under such conditions, rules and regulations as the said corporators or managers may establish for the government of lot holders, visitors to the cemetery, and burial of the dead: Provided, that the lots granted by said association for burial lots, shall not be used for any other purpose; and they shall be free from seizure, levy or sale under or by virtue of any execution against any grantee or grantees of said association, for such purpose.”
    5. That by the rules of said cemetery on the death of an owner of a lot who dies intestate, and without having made any disposition of the same by deed or otherwise, the lot descends to his heirs at law according to our intestate laws ; it being provided also that “ the heirs at law have jointly a right to the disposal and use of the lot, neither of them alone has the right to the disposal of it.”
    6. That one of these defendants, John W. Robinson, objects to the partition of the lot and prior to the filing of this bill filed an amended bill at No. 1,141, December Term, 1903, of this court against Mary A. Love, the plaintiff hereto, and one of these defendants, Andrew L. Robinson, praying for partition of the first, second, third, fourth and fifth tracts of land described and identified in this bill, the same comprising all of the land owned by said parties which is the subject of partition, unless the cemetery lot be so subject. That due service of said bill was had upon the said Mary A. Love and Andrew L. Robinson, and the said Mary A. Love, and the said Andrew L. Robinson filed their several answers to the said amended bill, to which answers a replication has been filed, and the same is now on the equity trial list of this court, and is still pending and undetermined.
    DISCUSSION.
    It is contended by plaintiff’s counsel that the cemetery lot is a subject of partition, and that as it was not included in the prior bill filed by John W. Robinson for partition, notwithstanding the pendency of. that bill, the plaintiff is entitled to a decree for partition here. It was suggested by defendants’ counsel upon the argument that this court acquired jurisdiction of the subject-matter by the filing of the prior bill, and that the question as to whether the cemetery lot is the subject of partition should be determined upon its hearing, and if so, that the bill could be amended to include the lot.
    If this had been done, and it could have no doubt if this plaintiff had consented, the complications, delay and expense occasioned by reason of three bills for partition being filed between the same parties, would have been avoided. It was optional, however, with the plaintiff to pursue this course, and if the cemetery lot is the subject of partition, as it is not included in the prior bill, its pendency is not a bar to the proceedings here, and a decree for partition must be made on this bill: Love v. Robinson, 213 Pa. 480. The plaintiff claims that title to the cemetery lot is vested in her and the defendants as tenants in common, and that, therefore, she is entitled to partition thereof, but there may be tenancy in common without the right of partition. Thus, in Latshaw’s Appeal, 122 Pa. 142, land was purchased by five congregations, composing a ministerial church in the Evangelical Lutheran church, for a parsonage for their joint benefit, and it was held that one congregation could not proceed for partition.of the land without the consent of the other congregation, Gobdon, O. J., saying, on page 152, that “ Where parties devoted land to a particular use, which use enters into the consideration of the contract creating it, one of the tenants in common cannot, without the consent of his cotenants, defeat the joint purpose by a writ of partition.” So it was held in Brown v. Lutheran Church, 23 Pa. 495, where a church and burial ground belonged to two distinct religious congregations as tenants in common under articles of association, in which it was recited that they had resolved to erect jointly a house for the worship of God on a lot which had been purchased by both congregations, and perpetuated for that purpose, and in which it was also, inter alia, provided that the members of both congregations shall have an equal right and interest in the church and land belonging to the same, that the land was not within the purview of our statutes relating to partition, and, therefore, neither of the congregations could avail itself of that right without the consent of the other.
    But it is doubtful if the parties to this bill are tenants in common, as under the rules of the cemetery company regulating the descent of the lot, the heirs have no right to its separate use or disposal, but have a joint right; and it is expressly provided that “ neither of them alone has the right to the disposal of it.” It is evident that none of the parties to this bill, without the consent of the others, could convey a good title of his interest, nor authorize the burial of a stranger in the lot: Lewis v. Walker, 165 Pa. 30. The purposes of the rule seem to be to prevent an heir from being deprived, without his consent, of the right of interment in a lot which descended to the heirs of the purchaser, and also to prevent it being used for any other purpose than a family burial plot without the consent of all of them. If it be subject to partition, however, and taken by one of the heirs, the others are deprived of its use, or if the partition results in a sale and it be purchased by a stranger, he would have the right of interment therein, and both these purposes would be defeated. It follows, therefore, that partition cannot be had of the cemetery lot described in the bill.
    It was suggested by plaintiff’s counsel that as there is room for but two interments and there are three heirs, partition should be had of the lot to prevent disputes which might arise as to interment therein. The cemetery company, however, has the power to make reasonable regulations which would avoid all disputes, and if it has not done so, no doubt will, if it becomes necessary. It seems to me that as between these heirs, prior necessity for interment should give prior right.
    CONCLUSIONS OF LAW.
    As one of the defendants objects to the partition of the cemetery lot described in the bill, it is not within the purview of our statutes relating to partition, and as there is a prior bill pending between the parties hereto for the partition of all the land in this state held by them as tenants in common subject to partition, this bill must be dismissed at plaintiff’s costs.

      Let a decree be drawn accordingly.

      Error assigned was the decree dismissing the bill.

      Thomas James Meagher, with him Robert S. Bright and Robert T. McElroy, for appellant.

      John P. Hunter, of Lyon, Hunter & Burke, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Mestrezat,

The single question in this case is, as stated by the learned judge below, whether or not a cemetery lot is a subject of partition. In the opinion filed by the. court it has fully found the facts, and clearly demonstrated that reason and precedent alike deny the right to such partition. The decree entered below is affirmed on the opinion.

We think it clear that the title held to the cemetery lot in question by the plaintiff and the defendants, who took it by inheritance from Mary Ann Robinson, deceased, is not a subject of partition. Aside from any question of decency or sentiment, which the very idea of partition offends, the charter of the cemetery and the deed made to Mary Ann Robinson, the purchaser of the lot, and the regulations, which are a part of and included in the deed, show conclusively that the heirs of the purchaser of a lot cannot compel a partition of it. The charter act of the cemetery authorized it to sell burial lots, and provided that they should not be used for any other purpose, and shall be free from seizure, levy or sale under or by virtue of any execution against any grantee or grantees of said association, for such purpose.” The deed conveying the lot to the purchaser provided that it should be held “ subject to the rules, conditions and limitations, and with the privileges specified in the rules and regulations hereto annexed, and such others as may hereafter be adopted.” Among the rules and regulations, subject to which the purchaser held the lot, are the following : (a) “ The heirs at law have jointly a right to the disposal and use of the property; neither of them alone has the right to the disposal of it.” (b) “ The wife of the intestate has the same -interest in the lot as she has in other real estate of the intestate ; but her interest, so far as the cemetery is concerned, is nominal; she can neither dispose of it or order interments to be made therein.”

It will be observed, therefore, that the title of the purchaser of a burial lot in this cemetery is not an absolute, fee .simple title. He acquires the lot simply for burial purposes, and therein he and the members of his family may be buried. The regulations forbid the burial of any other person in the lot, except upon special permission in writing obtained at the office of the corporation. It is true that the owner may dispose of it by will, but the devisee will hold it subject to the rules and regulations of the cemetery. The parties to this litigation, however, do not hold the lot under a devise from the purchaser, but by inheritance, and the rules and regulations, as we have seen, further limit the rights of such heirs in the property. The plaintiff is the sister and the defendants are the brothers of the purchaser of the lot in question, and they inherited the lot from her. The rule provides that they may jointly dispose of and use the lot, but explicitly says that “ neither of them alone has the right to the disposal of it.” The lot is held subject to this rule, and hence it is apparent that it will require joint action on their part either to use it for burial purposes or to sell or otherwise dispose of it. The widow of an intestate may be buried in a lot of her deceased husband, but she cannot dispose of it or authorize interments to be made in it. The purchaser of the lot took out an endowment certificate as authorized by the Act of March 6, 1860, P. L. 108, and by the income from the fund has provided for the perpetual care of the lot as a place of burial for her dead.

It appears, therefore, that the plaintiff and the defendants in this action hold the lot in question simply for burial purposes, and do not have a fee simple title* to it. The rights in the lot are limited and circumscribed to such an extent, as appears by the title, as to make it manifest that the property cannot be divided or sold under proceedings in partition at the instance of either of the parties. A partition of the lot would defeat the purpose for which it was conveyed to the purchaser, and would be in disregard of the rules and regulations subject to which it was conveyed to her. To permit either party to institute and carry to a conclusion partition proceedings would in effect be permitting him to dispose of the property without the consent of the other interested parties, in direct violation of one of the express rules of the cemetery. Such a proceeding would result in a sale of the property or a division, and either would violate a condition upon which the purchaser acquired the property and under which the parties to this litigation hold it. This controversy clearly discloses an imperative reason for the regulations and rules under which lots in this cemetery are held, and the court should enforce these rules and regulations, not only in the interest of the cemetery,.but to prevent such unseemly, uncalled-for and indecent contests over the ground in which lie the • ashes of the dead. Here the plaintiff, against the protests of the defendants, her brothers, is invoking the aid of the law to compel a division or sale of the property in which lie buried her father, her mother, her brothers, her sister. Fortunately the law erects a barrier which prevents her from desecrating the tombs of her dead.

"When these parties were here before on a bill for the partition of part of the real estate described in this bill, Love v. Robinson, 213 Pa. 480, the delay in the division of the property between the interested parties was pointed out, and it was suggested that the court should facilitate a speedy disposition of the then pending bills for partition. Before the present bill was filed one of the defendants in this bill had filed an amended bill for the partition of all the property owned by the parties, except the cemetery lot, and answers had been filed by the defendants. The cause was at issue. The opinion of the court below in this case shows that the failure to partition the property on the former bill was because the plaintiff in this suit declined to have the question whether the cemetery lot is the subject of partition determined on that bill. Under these circumstances we are not inclined to re-' verse the court below because it did not make partition in this proceeding of the real estate held in common by the parties. Either party can speed the pending bill, filed at No. 1,141, December Term, 1903, and the court below should permit no further delay in disposing of it.

The decree of the court below is affirmed at the costs of the appellant.


author: Per Curiam,

text:
    Cunningham v. Standard Sewing Machine Company, Appellant.

      Practice, C. P. — Affidavit of defense — Contract—Corporation.
    I21 an action by a member of a limited partnership to recover his share of the purchase money of the assets of the partnership sold to the defendant, a corporation, the plaintiff’s statement showed a contract of sale in writing signed by the president, and an agreement to pay the plaintiff his share. The statement also showed that the defendant had received the assets, and paid the debts of the limited partnership provided by the contract, and for nine years had paid interest to the plaintiff on his share. An affidavit of defense was filed by a person who stated that he was secretary and treasurer of the defendant, to the effect, that neither the defendant nor its officers, naming certain officers, but not the president, had any knowledge of the transaction, except what was shown in defendant’s books, and that they had no knowledge of, nor did they authorize the written contract of sale. The affidavit denied that defendant had entered into said contract, and that the president executed it on behalf of the defendant. There was no allegation, however, as to when the officers named had become officers of the company; there was no specific denial that the plaintiff was paid interest; and no denial that a reasonable time had elapsed within which to make payment. Held, that the affidavit of defense was insufficient to prevent judgment.
    Argued Oct. 31, 1907.
    Appeal, No. 165, Oct. T., 1907, by defendant, from order of C. P. No. 4, Allegheny Co., July T., 1907, No. 16, making absolute rule for judgment for want of a sufficient affidavit of defense in case of S. W. Cunningham v. Standard Sewing Machine Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for balance of purchase money.
    Hule for judgment for want of a sufficient affidavit of defense.
    Swearingen, P. J., filed the following opinion:
    In April, 1895, the Standard Plaiter Company, Ltd., a limited partnership, was doing business in Pittsburg, Pennsylvania. Charles C. Emmons was the chairman. The plaintiff was one of the limited partners, or shareholders in said company. '
    The Standard Sewing Machine Company, defendant, was then and still is a corporation of the state of Ohio, doing business in the city of Cleveland. The said Charles C. Emmons was in April, 1895, the president of defendant company, and it was admitted upon the argument that he has been ever since, and still is, the president.
    In April, 1895, the defendant purchased, or took over, certain assets of said Standard Plaiter Company, Ltd. The"plaintiff avers that the defendant was to pay for these assets the sum of '$16,900, in accordance with a written agreement which was executed by the stockholders of the Standard Plaiter Company, Ltd., and by the Standard Sewing Machine Company, April 29, 1895, a copy of which is exhibit “A,” attached to and made part of plaintiff’s statement. By the terms of this agreement the defendant was to pay for said assets the said sum of $16,900, with interest thereon semiannually, and it further undertook to make diligent efforts to sell said assets, “and as fast as the same shall be sold it shall pay over an amount equal to the purchase money of the goods and stock so to be sold, without deduction for expenses of sale or time given to purchasers.”
    The sum of $5,690, being the indebtedness of the Standard Plaiter Company, Ltd., was to be paid out of the first moneys available. The balance of $11,210 was to be credited to the shareholders of said Standard Plaiter Company, Ltd., and “ as fast as sales of merchandise or stock on hand shall be made, said party of the second part (defendant) shall pay over either to all of such share or stockholders in proportion to their holdings or to one or more of them, as shall be agreed among themselves, until such shareholders shall have received in full their proportionate parts of the said sum of $11,210 and interest.”
    This paper was signed by stockholders of the Standard Plaiter Company, Ltd., and also “ The Standard Sewing Machine Company, Charles C. Emmons, president.” Within a very few weeks after the date of this paper, all of said assets were delivered to and received by the Standard Sewing Machine Company, the defendant.

      The plaintiff also avers, and this is not denied, that about May 9, 1895, the defendant was duly directed to pay the first available moneys that should come into its hands to said Standard Plaiter Company, Ltd., for the liquidation of its debts (about 15,690), “ and the next available moneys that so came into its hands unto the said plaintiff, upon his claim aforesaid, and other moneys in a specified order.” And the plaintiff then states that this appears upon the defendant’s books, a copy of which is exhibit “ 0,” attached to plaintiff’s statement. This statement is as follows :
    “ Exhibit £C.’
    Plaiter account................. $20,000.00
    “ To sundries. .
    Standard Plaiter Company, Ltd........- 5,123.75
    S. W. Cunningham............... 3,449.33
    Sallie Briney................... 995.00
    L. F. Wyatt................... 398.00
    Chas. C. Emmons................ 10,033.92
    ££ Accounts to draw interest at 6 per cent semiannually until paid.
    “ The above entry to make transfer to our books of purchase of plaiting machines, merchandise, patents, models, patterns, tools and fixtures belonging to Standard Plaiter Company, Ltd., of patents belonging to C. C. Emmons personally, made as of April 29th, 1895, under agreement between C. C. Emmons as chairman of said Company, and for himself personally, and J. E. French, C. A. Otis and II. W. Corning (also acting for W. J. Corning) for The Sewing Machine Company. Above accounts are to be paid as rapidly as Plaiter merchandise is sold, irrespective of expenses of selling, commencing with Standard Plaiter Company account, and thereafter in order named, unless otherwise hereafter designated.”
    The plaintiff finally avers that he was paid interest semiannually upon his said claim of $3,449.33 by the defendant, for the period of nine years from April 29, 1895; and this is not specifically denied.
    The defendant has filed a paper called “Defendant’s Answer and Statement of Defense.” This paper was not prepared by the learned counsel who represented the defendant upon the argument* and is not strictly in accordance with our statutes and rules of court. But we are not disposed to be technical, and we have treated this paper, as indeed the plaintiff seems to have, as an affidavit of defense.
    It will be observed that this paper is not signed or sworn to by Charles C. Emmons, president of the defendant company, and the man who, more than any other in the defendant company, knew all about the paper exhibit “ A ” and the allegations set forth in plaintiff’s statement. But the affidavit is made by Henry W. Corning, who states that he is secretary and treasurer of defendant company, but he does not state when he became secretary and treasurer, nor does he state that he has any personal knowledge of the averments made on behalf of the defendant. No question, however, has been raised as to the sufficiency of the affidavit to the answer.
    The answer states that neither the defendant nor its officers, Warren IT. Corning, C. A. Otis, Sr., J. E.' French or Henry W. Corning had any knowledge of said transaction other than what is shown upon its said journal and ledger ; nor had they any knowledge of, nor did they authorize, the written contract, exhibit “ A ” ; and it is finally denied that defendant entered into said contract, and that Emmons executed said contract on behalf of the defendant, and that said assets were delivered pursuant thereto.
    Whilst it is denied in this answer that said officers had any knowledge of said agreement (exhibit “ A ”), yet it is not stated what offices these parties held, or when they became officers. And it is not denied that Charles C. Emmons was at that time president of the defendant; it is not denied that he signed the contract, just as it is signed ; it is not denied that defendant received said assets; it is not denied that defendant was to pay $16,900 with interest for them; it is admitted that exhibit “ C ” is correctly taken from defendant’s books; it is admitted that defendant has sold said assets to the extent of $9,802.27; that it has paid $5,123.75 to the Standard Plaiter Company, Ltd., for liquidation of its debts, and there is no averment that there are any of its debts unpaid ; and, finally, there is no specific denial that the defendant has paid plaintiff interest, semiannually, upon his claim of $3,449.33, since the date of said contract, April 29, 1895, until April 29, 1904.
    In view of these admissions and of these failures to deny what becomes of the naked averments that the defendant did not enter into the contract (exhibit “A”), that certain of its officers knew nothing about the agreement — especially twelve years after the defendant obtained the property % It seems to us that if all the material averments of the answer were proven there would be no question of fact to be submitted to a jury, and that there would remain nothing but an interpretation of writings, which is for the court.
    If we assume that it sufficiently appears from the answer that the writing (exhibit “ A ”), was the contract, and that the defendant was directed to pay the plaintiff second in order, what is the meaning of that instrument ?
    Undoubtedly it was a contract of sale. By no possible construction of the language used can it be hold that the defendant was merely the agent of the plaintiff and his associates to sell said assets and then account for the proceeds. It is true no time is fixed for payment, but then the law adds that payment shall be made “ within a reasonable time under all circumstances,” and there is no denial of the plaintiff’s averment that a reasonable time has elapsed. The plain meaning is that it was a sale, and payment was to be made within a reasonable time ; but, if the assets were sooner converted, then payment was to be sooner made, and the defendant thereby relieved from further payments of interest.
    But what substantial difference is there between exhibit “ A ” and exhibit “ C,” which latter is admitted by the defendant ? None that we can discover. That paper (a transcript of defendant’s books), sets forth that the entry is “ to make transfer to our books of purchase of plaiting machines,” etc., belonging to the Standard Plaiter Company, Ltd., and of patents belonging to C. O. Emmons personally, “ made as of April 27, 1895,” which is the date of the agreement, exhibit “ A.” The paper further states that, “ Above accounts are to be paid as rapidly as Plaiter merchandise is sold, irrespective of expense of selling, commencing with Standard Plaiter Company account, and thereafter in order named.” This is the order of payment, which it is not denied was designated by the stockholders of the Standard Plaiter Company, Ltd., shortly after the paper, exhibit “ A,” was signed. It is evident that the party who made the above entry upon defendant’s book had before him the contract, exhibit “ A,” and also the designation of the order of payment. Whilst there are some differences in the amounts due some of the parties, yet there is no difference in the amount due the plaintiff, and there is no denial that the amount of his claim is $3,449.33.
    The difference between $20,000 and $16,900, the amount to be paid for these assets, or $3,100, is probably what was to be paid Emmons for his patents, as named in exhibit “ C.” The difference between $5,690, debts of the Standard Plaiter Company, Ltd., and $5,123.75, the amount actually paid, or $566.25, is probably discounts upon these debts. It will be observed that two of the stockholders, mentioned in exhibit “A,” to wit: Mrs. J. M. Emmons, $995, and L. M. Peed, $663.35, have dropped out of exhibit “ C.” Probably they transferred their claims to Charles C. Emmons. If all the aforesaid amounts are added to the amount stated in exhibit “ A ” as due Charles O. Emmons, $4,709.32, the aggregate will be $10,033.92, the amount stated to be due him in exhibit “.C.”
    Whether or not this is the explanation is not material. But the important facts are, that there is no denial of the amount of plaintiff’s claim, that the papers show the contract was one of sale and not of agency, and that there is no denial that a reasonable time has elapsed within which to make payment. We think that exhibit “ C ” and the admissions referred to amount to a ratification on the part of defendant of the contract, exhibit “ A.”
    The defendant admits that it has collected $9,802.27; it does not deny that plaintiff was to be paid next after the debts of the Standard Plaiter Company, Ltd., were paid, and it claims to have paid these debts, amounting to $5,123.75. So that defendant has in its hands, irrespective of the question of its liability for these claims, even though the assets had not been sold, $4,678.52, which is applicable to the plaintiff’s claims.
    We are of opinion that the affidavit of defense is not sufficient. It is therefore ordered that judgment be entered in favor of the plaintiff and against the defendant for the amount of his claim, to wit: $3,449.33, with interest thereon from April 29, 1904, to be liquidated by tbe prothonotary.

      Error assigned was the order of the court.

      Francis J. Wing, with him Sachs & Hirschfield, for appellant.

      S. W. Cunningham, with him J. W. Kinnear, for appellee.
    January 6, 1908:
   Per Curiam,

The judgment is affirmed by a majority of the court on the opinion of the court below.


author: Mr. Justice Fell,

text:
    Latta, Appellant, v. Hax.

      Equity — Specific performance — Vendar and vendee — Damages.
    A decree of specific performance will not be made against a vendor when the circumstances would make it unconscionable to enforce the contract.
    It is only when the vendor’s inability to convey was unknown at the time of filing a bill for specific performance that the court will retain the bill for the purpose of assessing damages.
    On a bill in equity for specific performance it appeared that the land in question had been mortgaged to a building and loan association. After the charter of the association had expired the mortgage was foreclosed in the name of the association, and the land bought in by the association at a sheriff’s sale. Subsequently the defendant’s grantor took title by deed executed by the last elected officers of the association. The purchase money was properly applied by the officers. The plaintiff objected to the title on the ground that the foreclosure had' been after the expiration of the charter, and the sale did not divest title in the mortgagor. The defendant then procured from the mortgagor a quitclaim deed, and tendered it to the plaintiff. The plaintiff further objected that the mortgage had not been divested, and the bill was filed to require the satisfaction of the mortgage. Held, that the bill was properly dismissed.
    Argued Oct. 31, 1907.
    Appeal, No. 81, Oct. T., 1907, by plaintiff, from decree of C. P. No. 1, Allegheny Co., Dec. T., 1906, No. 5, dismissing bill in equity in case of William Latta v. C. C. Hax.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for specific performance.
    The opinion of the Supreme Court states the case.

      Error assigned was decree of the court.

      Wm. C. Boyd, with him M. H. Stevenson, for appellant.
    Where a vendor’s title is incumbered, the vendee is entitled to withhold the purchase money until the lien is removed: Winton’s Appeal, 97 Pa. 385; Burk’s Appeal, 75 Pa. 141; Stoddart v. Smith, 5 Binn. 355; Gans v. Renshaw, 2 Pa. 34; Schoonover v. Ralston, 25 Pa. Superior Ct. 375; Dalzell v. Crawford, 1 Pars. Eq. Cases, 37; Stephens v. Black, 77 Pa. 138.
    The foreclosure did not divest the lien. It is well settled that, after the expiration of its charter, a corporation has no capacity to sue: Building Assn. v. Anderson, 7 Phila. 106.
    The decisions are uniform that a vendee will not be compelled to accept a doubtful title: Dalzell v. Crawford, 1 Pars. Eq. Cases, 37; Anshutz v. Miller, 81 Pa. 212; Doebler’s App., 64 Pa. 9; Swayne v. Lyon, 67 Pa. 436; Herman v. Somers, 158 Pa. 424; Reighard’s Estate, 192 Pa. 108.

      J. Rodgers McCreery, with him Charles A. Locke, for appellee.
    The title is marketable: Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411; Hartman v. Ogborn, 54 Pa. 120; Shryock v. Buckman, 121 Pa. 248; Kennedy v. Baker, 159 Pa. 146; Pennock v. Freeman, 1 Watts, 401.
    January 6, 1908:
   Opinion by

Mr. Justice Fell,

The bill in this case was by the vendee for the specific performance of a contract for the sale of land. The defendant agreed in writing to sell the plaintiff a lot in Allegheny City, clear of all incumbrances, for $2,250. In 1891 the lot was owned by Margaret Lenaghan, who mortgaged it to a building association. She died in 1896 and the title to the lot became vested under her will in her husband," Peter Lenaghan. The charter of the building association expired in 1896 and was not extended. In 1897 judgment was obtained in a proceeding on the mortgage, in the name of the association, for $2,037 and the lot was sold by the sheriff .and purchased by it. In 1897 it sold, and by deed executed by its last elected officers, conveyed the lot to the defendant’s grantor for $2,600. The purchase money received was properly applied by these officers, who had continued to act for it in the liquidation of its affairs.

Exception was made by the plaintiff to the title on the ground that the foreclosure of the mortgage was after the expiration of the charter of the building association and the sale did not divest the title of Peter Lenaghan. The defendant then procured from Lenaghan a quitclaim deed and tendered it to the plaintiff. He was then met with the further objection that the lien of the mortgage had not been divested and with the demand that he should procure its satisfaction of record. The avowed object of this bill is to require the satisfaction of the mortgage. It was found by the court that the defendant believed his title was good and unincumbered when he agreed to convey it and that he had procured the quitclaim deed to satisfy the plaintiff. The bill was dismissed for the reason, among others, that since a decree would not have been made compelling the defendant to perfect the title, it would be inequitable to require him to have the mortgage satisfied.

When a vendor’s covenant is broken, the vendee may rescind the contract, or at his election bring an action at law for damages, or institute a proceeding in equity to enforce specific performance as far as the vendor can perform and have an abatement out of the purchase money for any deficiency of title or quantity or other matters touching the estate: Erwin v. Myers, 46 Pa. 96; Notes to Seton v. Slade, Lead. Cases in Equity, vol. 2, part 2, *513. On the principle that when the vendor cannot make title to all that he has agreed to convey, he will, at the option of the vendee, be required to convey as far as he can convey, a court of equity may direct that a part of the purchase money be retained to discharge liens when the contract was to convey clear of incumbrances. It is, however, clear that this can be done only in cases where the amount of the liens .is fixed or readily ascertainable.

In this case, if the mortgage is a valid incumbrance that justified the plaintiff’s refusal of the conveyance tendered, its discharge would require the payment of a sum larger than the purchase money; if there is a doubt as to its lien that affects the marketability of the title, the defendant should not be required to institute proceedings to remove it. A decree of specific performance will not be made against a vendor when the circumstances would make it unconscionable to enforce the contract: Mitchell v. Steinmetz, 97 Pa. 251.

The bill was properly dismissed. It is only when the vendor’s inability to convey was unknown at the time of filing the bill for specific performance that the court will retain the bill for the purpose of assessing damages.

The decree is affirmed at the cost of the appellant.


text:
    Hogg’s Estate.

      Partnership — Trusts and trustees — Assets—Assignment of partner’s interest to other partner.

    Where one partner sells his interest to another in consideration of an engagement by the latter to pay the partnership debts, the engagement to pay them is but a personal contract. It creates no lien on the property.
    Where a partnership consisting of two persons is insolvent, and one of the partners who was insolvent sells his interest to the other who was solvent, and the latter takes over the assets and expends more than the value of them in paying partnership debts, his estate cannot be held liable as a trustee for a judgment recovered in Massachusetts after his death against his former partner individually, on a suit originally begun against both partners, but which under the Massachusetts law had abated as to the decedent upon his death.
    Argued Oct. 31, 1907.
    Appeal, No. 78, Oct. T., 1907, by The Tremont Nail Company, from decree of O. C. Allegheny Co., Jan. T., 1903, No. 116, dismissing petition for citation in Estate of Nathaniel B. Hogg, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for citation.

      Over, J., filed the following opinion:
    The Tremont Hail Company, a Massachusetts corporation, in 1882 instituted a proceeding by attachment against Robert C. Totten and H. B. Hogg, this decedent, both of Pittsburg, partners doing business as Totten & Company, in the Massachusetts courts for the purpose of recovering $16,000 damages for an alleged breach of a contract. The defendants appeared by counsel. The cause was continued from time to time until June 8, 1897, when it was dismissed: on June 14, 1897, was reinstated and again dismissed on May 31, 1900; was again reinstated on itarch 15, 1901, and on September 4, 1901, defendant Totten suggested the death of defendant Hogg which occurred July 21, 1901. Then on January 11, 1904, defendant’s counsel withdrew his appearance, and on February 10, 1904, Totten was called to come into court and did not appear and the cause was continued for the assessment of damages, and on June 21, 1904, the plaintiff amended his writ and declaration by leave of court, “ by changing the ad damnum from $16,000 to $50,000,” and on July 5, 1904, the following decree was made:
    “ It is considered by the court that said Tremont Hail Company, plaintiff as aforesaid recover against said Robert C. Totten, defendant as aforesaid, the sum of $37,455.18 damages and costs of suit taxed at $272.04. And execution is awarded for the same sums against the goods, effects and credits of said defendant in his own hands, and in the hands and possession of said Edmund M. Wood and Martial F. II. Wood, trustees of said defendant.”
    The partnership existing between Totten and Hogg was dissolved in 1889, Hogg being the only solvent partner and the partnership assets were assigned to him, he expending more than their value in the payment of partnership debts. He subsequently organized a corporation under the name of Totten and Hogg Iron and Steel Foundry Company, with 3,000 shares of capital stock at par value of $50.00, and turned over to it the property which had been assigned to him by the firm at the valuation of $135,000, receiving therefor 2,960 shares of said capital stock. He having died July 21, 1901, testate, letters were issued on his estate to his executors, George A. and William A. Hogg, who sold the 2,960 shares of stock of said corporation belonging to the estate for $98,656 and accounted for same in their first and final account filed September 4, 1902, at No. 116, January Term, 1903. It Avas duly advertised and confirmed absolutely on January 15,1903, and came up for audit January 2T, 1903, ivhen W. A. Hogg, one of the executors testified, inter alia, as folloivs:
    “We have paid all the debts of my uncle except one claim which is in litigation in Boston. That claim the executors do not admit. It has been pending since 1882 and no judgment has been recovered. Our counsel there advises that it' is the best thing to do to let it go a little while until it is dropped. We don’t recognize it as a claim’ against the estate.”
    On March 6, 1903, a decree was made confirming payments previously made by the executors on account of distribution, and distributing the amount in their hands to the widow and legatees, which amounts the executors have paid. W. A. Hogg, one of the executors, died in 1905, and the surviving executor, G. A. Hogg, was discharged by decree of court on September 23, 1905.
    The Tremont Nail Company filed its petition on February 21, 1906, alleging, inter alia, that Bobert C. Totten is unable to satisfy the judgment obtained against him by it or any part thereof, praying the decree discharging G. A. Hogg, surviving executor, be set aside, that the decree of distribution be opened and its claim on the judgment against Totten be allowed as a valid claim against the estate and the distributees refund to the executor a sufficient amount to pay said claim.
    Citation was issued on this petition on all the distributees and answers have been filed by them, denying the petitioner’s right to the relief prayed for. The cause was heard upon petition and answer.
    The petitioner is not entitled to the relief prayed for unless it appears that the estate is legally liable for its claim, and also that the decree confirming payments previously made by the executors and distributing the funds in their hands, with which they have complied, is not conclusive.
    Under the Massachusetts statutes, the action brought there against Totten and Hogg abated as to the latter by his death: New Haven, etc. v. Hayden, 119 Mass. 361. It was then prosecuted against Totten alone and the judgment was recovered against him individually. If the petitioner had appeared at the audit of the account as it had not recovered a judgment against the decedent and the action against him had abated, its claim would have- been founded only on an alleged breach of contract occurring in 1881 and would have been barred by the statute of limitation.
    This much is conceded by counsel for the petitioner; but it is contended that decedent having taken over the firm assets of Totten & Company, assumed a trust relation to the petitioner as to them, and that, therefore, his estate is liable to it for the amount of the judgment recovered against Totten individually. We cannot assent to this proposition. In Baker’s Appeal, 21 Pa. 76-82, it was held that:
    “ Where one partner sells his interest to another in consideration of an engagement by the latter to pay the partnership debts, the engagement to pay them is but a personal contract. It creates no lien on the property.”
    And “ the parties may by mutual agreement as by the sale of one partner’s interest to his copartners convert the partnership property into individual property: ” Shumaker on Partnership, 225. The effect of the transfer by Totten to Hogg of the former’s interest in the firm assets was to convert them into the individual property of the latter, and if he did covenant with Totten to pay the firm’s debts, which, however, is not admitted in the answers, no trust was created; but it was only a personal covenant which could be enforced by Totten alone. Moreover, it appears that when the assets of the firm were assigned to the decedent that both Totten and the firm were insolvent, and that the decedent expended more than their value in the payment of the firm’s debts; the partnership was then dissolved, and as its assets were applied to the payment of its debts, there never were any in the executors’ hands to be applied to the payment of the petitioner’s judgment, if it be valid as against firm assets.
    If, however, there was a trust, it was constructive, and could only be in force within six years from its creation, and as it originated in 1889, any claim under it is barred: Ashhurst’s Appeal, 60 Pa. 290.
    As we think the decedent’s estate is not liable for the petitioner’s claim, it is not necessary to consider whether the decree of the court aud distribution thereunder was conclusive; and the petition must be dismissed.

      Error assigned was decree dismissing the bill.

      John P. Hunter, of Lyon, Hunter & Burke, for appellant.

      Wm. M. Hall, with him Shiras & Dickey, and O. P. Metcalf, for appellees.
    January 6, 1908:
   Per Curiam,

The decree is affirmed on the opinion of the court below.


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    McKee, Appellant, v. Smith.

      Debtor and creditor — Sale of collateral — Fictitious sale.

    Where a creditor sells, at the stock exchange, stock held by him as collateral for a debt, and by a secret arrangement with his nephew, the latter bids in the stock at a sum much smaller than the debt, but in reality pays for it a sum much larger than the debt, the debtor has a right to recover the difference, and it is no answer to his claim that the creditor paid back to his nephew a part of the secret purchase price.
    Argued Oct. 31, 1907.
    Appeal, No. 85, Oct. T., 1907, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1902, No. 615, refusing to take off nonsuit in case of C. I. McKee v. L. H. Smith.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Be versed.
    Assumpsit to recover money had and received for the defendant.
    Before Collier, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order to take off nonsuit.

      Levi Bird Duff, for appellant.
    The holder of collateral securities, with power to sell them for his debt, is not bound to obtain the highest possible price for them, but he is bound to the exercise of common prudence and good faith in his management and conversion of them: Bank v. Baeder Glue Co., 164 Pa. 1; Dwight v. Singer, 27 Pa. Superior Ct. 119; Sparhawk v. Drexel, 12 N. B. R. 450; Pauly v. State Loan & Trust Co., 165 U. S. 606 (17 Sup. Ct. Repr. 465); Bank v. Rafferty, 207 Pa. 238.

      Homer L. Castle, with him S. W. Cunningham and Sion B. Smith, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Fell,

This action was brought to recover the difference between the amount for which shares of stock held as a collateral security for the payment of the plaintiff’s note were sold and the amount of the debt they were pledged to secure. The plaintiff gave his note to the defendant for $2,395.86, payable one year after date, and deposited with him as collateral security thirty shares of the stock of L. H. Smith Wooden Ware Company. The note contained a power to sell the collateral on nonpayment at maturity, and gave the payee the right to purchase at his sale. After the maturity of the note, and demand and refusal to pay, the defendant caused the stock to be sold at the Pittsburg Stock Exchange and it was purchased by his nephew, who was in his employ, for $300: The plaintiff

alleged in his statement of claim that the sale was prearranged and fictitious; that the price was grossly inadequate; that the defendant did not transfer the stock to the pretended purchaser, but retained the control and ownership of it until the company was merged with another company which issued to him its stock which he sold for $4,500; and that he in fact realized this amount from the sale of the stock pledged.

It appeared from the testimony that after the sale at the stock exchange the defendant opened an account with his nephew in which he charged him with $3,000 for this stock and credited him with $300 cash paid; and the defendant, who was called as a witness by the plaintiff, testified that he afterwards received from his nephew $2,700 for the stock, $800 of which he subsequently refunded. The failure to show irregularity in the sale or such gross inadequacy of price as would indicate a want of good faith, did not defeat the plaintiff’s action if, in fact, the price obtained exceeded the amount due on the note.' In adjusting the account between, them the plaintiff was entitled to credit for the full amount received from the sale of the stock and he was not precluded from an inquiry as to this because the bid at the stock exchange was only $300. If the defendant had bought for that amount and afterwards sold for a greater amount, the profit would have been his; but if, at the time of the sale, there was an understanding that he was to receive $3,000, without regard to the amount of the bid, there was a sale at that price; that there was this understanding might be inferred from the testimony of the defendant. The argument .that the plaintiff should be credited with only $2,200 because $800 of the price was refunded, and that - there could be no recovery because a credit of this amount would not pay the note, is without force. If the defendant refunded a part of the price received, he, is not the less answerable for the whole.

The judgment is reversed with a procedendo.


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    Saxton v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Infant—Duty of parent.

    In an action against a street railway company to recover damages for personal injuries to a boy five years old, it appeared that at the time of the accident the boy got on a step of the platform of a car standing at a crossing. The platform was entirely closed by wooden doors with glass windows in the upper panels. He took hold of a horizontal' bar fástened to • the woodwork of the door a few inches below the glass. He testified that after the car was in motion the motorman looked through the glass, and saw him and shook the door and caused him to fall. This testimony was denied by the motorman: who testified that he did not see the boy nor shake the door. Held,, that on the conflicting testimony, -the case, was for the jury.
    In such a case it appeared that the boy had gone almost daily to the home of his aunt near by, and had on a few occasions' gone with his cousin, a boy sixteen; years old, to deliver papers in the street. His parents knew that he had done this once or twice, but did not know that he was in the habit of doing it, and on the occasion of his injury they did not know that he had left his aunt’s house, or was likely to do so. Held, that the father of the boy under the circumstances was not precluded from recovering because he permitted his son to go on the street in a business part of the city unattended.

      Negligence — Street railways — Improper remarks of counsel.

    In a negligence case against a street railway a judgment and verdict for the plaintiff will be reversed, where the counsel for the plaintiff in his address to the jury states, without any foundation in fact, that there had been a suppression of evidence and further says to the jury: “I ask you in money to make this company, with its earnings, and out of its earnings, out of its millions, for which it is in this business— it is not a charity, it is not a benevolence, it is a business just as hard and cold as any that can be estimated in dollars and cents — 1 ask you to make this company out of its millions to put on that stump a foot as good as the original. ... It is idle for them to cry for justice. Give it to him, that is what we want and that is what we ask. Give it to him, whatever we ask, five thousand, ten thousand, fifteen or twenty thousand dollars, whatever it is make them pay it, and give them the justice they want.”
    Argued Nov. 1, 1907.
    Appeals, Nos. 95 and 96, Oct. T., 1907, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1905, No. 824, in case of B. H. Saxton, suing in his own right and as next friend of B. H. Saxton, Jr., v. Pittsburg Railways Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    Before Kennedy, P. J.
    The opinion of the Supreme Court states the facts of the case.
    Verdict and judgment for B. II. Saxton, Jr., for $3,000 and for B. II. Saxton, $1,500. Defendant appealed.

      Errors assigned were (1, 2) in submitting the case to the jury, and (3-6) in refusing to withdraw a juror and continue the case because of the remarks of counsel quoted in the opinion of the Supreme Court.

      William A. Challener, with him Clarence Burleigh and James C. Gray, for appellant,
    cited as to remarks of plaintiff’s counsel in addressing the jury: Wagner v. Hazle Twp., 215 Pa. 219; Walsh v. Wilkes-Barre, 215 Pa. 226.

      F. C. McGirr, with him John Marron, for appellee.
    — A judgment on a verdict will not be reversed because of alleged improper and injurious remarks of counsel, where it appears that the verdict was modest in amount, and that the court instructed the jury to disregard the objectionable remarks of counsel: Moore v. Neubert, 21 Pa. Superior Ct. 144.
    January 6, 1908:
   Opinion by

Mr. Justice Fell,

The first two assignments of error relate to the right of the plaintiffs to recover. They cannot be sustained. The boy injured was five years and three weeks of age. While the defendant’s car was standing at a crossing, he got on a step of the front platform. The platform was entirely closed by wooden doors with glass windows in the upper panels. He took hold of a horizontal bar fastened to the woodwork of the door a few inches below the glass. He testified that after the car was in motion the motorman looked through the glass and saw him and shook the door and caused him to fall. This testimony was denied by the motorman who testified that he did not see the boy or shake the door, and there was testimony that tended to show that the motorman could not have seen him because the wooden part of the door was several inches higher than the boy’s head and that the boy while standing on the step was two or three feet back of the position occupied by the motorman. It was not, however, shown that it was impossible that the motorman by change of position or by leaning over could have seen, and the positive testimony of the boy that he did see him took the case to the jury on the ground of negligence in shaking the door when the boy was in a place of danger: Levin v. Traction Co., 194 Pa. 156. The father of the boy was not precluded from recovering because he permitted his son to go on the street in a business part of the city unattended. The boy had gone almost daily to the home of his aunt nearby and had on a few occasions gone with his cousin, a boy sixteen years old, to deliver papers in the street. His parents knew that he had done this once or twice, but did not know that he was in the habit of doing it, and on the occasion of his injury they did not know that he had left his aunt’s house or was likely to do so.

The remaining assignments of error may be considered together. They charge misconduct of counsel in addressing the jury. The remarks objected to as being improper are: “ Now this is what I charge frankly and plainly in this case a suppression of evidence, and by that I ask you twelve men to determine this ease, if you have any hesitancy about the conclusion upon the evidence in the case. I ask you in money to make this company, with its earnings, and out of its earnings, out of its millions, for which it is in this business — it is not a charity, it is not a benevolence, it is a business just as hard and cold as any that can be estimated in dollars and cents — I ask you to make this company out of its millions to put on that stump a foot as good as the original. It is idle for them to cry for justice. Give it to him, that is what we want and that is what we ask. Give it to him, whatever we ask, five thousand, ten thousand, fifteen or twenty thousand dollars, whatever it is make them pay it, and give them the justice they want.” These remarks were objected to at the time and were taken down by the official stenographer and by leave of court filed as a part of the record. Motions were made to withdraw a juror and continue the case. The overruling of these motions is assigned for error.

There was not the slightest foundation in the testimony nor in the circumstances connected with the case to support the statement of counsel that there had been a suppression of evidence and the jury were so instructed by the court in answer to points presented by defendant’s counsel. This instruction did not cure the error of counsel. The effect of the statement on the minds of the jury is as manifest as was its purpose. The other statements were intemperate appeals to the prejudices of the jury and invitations to find a verdict on false grounds.

No verdict that may have been obtained by such means should be allowed to stand and the effective remedy is to withdraw a juror and continue the case. If courts are to continue to be places where justice is judicially administered, causes must be fairly presented and fairly defended, and the duty of counsel in this regard is not less important nor less imperative than that of the judge. A cause is not well tried unless fairly tried and a verdict obtained by incorrect statements or unfair argument or by an appeal to passion or prejudice stands on but little higher ground than one obtained by false testimony. It is not founded on the truth of the cause. In sustaining an assignment based on improper comments of counsel, it was said in the opinion in Holden v. Railroad Co., 169 Pa. 1, that the only efficacious remedy in such a case was to withdraw a juror, and that the practice of doing so which obtained in some courts should be widely extended as an admonition to counsel. In the recent case of Wagner v. Hazle Township, 215 Pa. 219, an offer of testimony was made with the intention to bring to the attention of the jury an irrelevant fact. In reversing the judgment it was said by our Brother Mestbezat : “ When an attorney in the trial of a cause willfully and intentionally makes an offer of wholly irrelevant and incompetent evidence, or makes improper statements as to the facts in his address to the jury, clearly unsupported by any evidence, which are prejudicial and harmful to the opposite party, it is the plain duty of the trial judge, of his own motion, to act promptly and effectively by reprimanding counsel and withdrawing a juror and continuing the case at the costs of the client. In no other way can justice be administered and the rights of the injured party be protected. The imposition of the costs will remind the client that he has an attorney unfaithful to him as well as to the court. The obligation of fidelity to the court which an attorney assumes on his admission to the bar is ever thereafter with him, and when he attempts to defeat the. justice of a cause by interjecting into the trial wholly foreign and irrelevant matter for the manifest purpose of misleading the ■jury, he fails to observe the duty required of him as an attorney and his conduct should receive the condemnation of the court. This condemnation can and should be made effective.”

The judgment is reversed with a venire facias de novo.