author: Mr. Justice Mestrezat,

text:
    Frank v. Guarantee Trust and Safe Deposit Company, Appellant.

      Ground rents — Merger—Extinguishment—Mortgage—Recording acts— Notice.

    Where an owner of a ground rent purchases the ground itself and subsequently executes a mortgage without indicating an intention in the mortgage to prevent a merger of the rent in the title to the land, and thereafter executes an assignment of the ground rents to another person, one who takes title under foreclosure of the mortgage takes the fee in the land with the ground rents extinguished, and the assignee of the ground rents takes nothing by his assignment.

      Ground rent — Merger—Intervening estate — Mortgage—Secret lien — Notice. A ground rent does not merge by the purchase of land out of which it issued by the owner of the rent where there is an intervening estate in, or charge on, the land, held by a third party, a stranger to the title to the fee; but this .does not apply to a secret trust or equity of which a subsequent purchaser has no notice.
    The fact that the sheriff sells land subject to ground z’ents does not prevent the subsequent merger of the ground rents, where the purchaser is the owner of the ground rents; nor is it notice to a subsequent mortgagee that they were subsisting encumbrances when he took his mortgage.
    Mitchell, C. J., and Fell, J., dissent.
    Argued March 21, 1906.
    Reargued May 2, 1906.
    Appeal, No. 386, Jan. T., 1906, by defendant, from decree of C. P. No. 2, Phila. Co., Dec. T., 1904, No. 2,711, on bill in equity in case of Philip Frank, Jr., v. Guarantee Trust and Safe Deposit Conv pany, Trustee under will of Mary C. Penrose, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ., on reargument.
    Affirmed.
    Bill in equity to declare ground rents extinguished.
    Sulzberger, P. J., filed the following opinion :
    Findings of Fact.
    The court finds the following facts:
    1. Lewis Stover, being the owner thereof, conveyed premises Nos. 2210 and 2212 Fitz'water street, Philadelphia, to Thomas Fellony in fee by two separate deeds dated July 11, 1874, and duly recorded, reserving thereout unto the said Lewis Stover and his heirs from each of the said premises a certain yearly ground rent of $180, and each deed being subject to certain building and drainage restrictions therein recited.
    2. By deed dated July 11, 1874, and duly recorded, Thomas Fellony conveyed the said premises Nos. 2210 and 2212 Fitzwater street, inter alia, unto Bridget Loughery in fee, under and subject to the above-mentioned ground rents and to building and drainage restrictions in said deed recited.
    3. Upon December 9,1874, Bridget Loughery executed her bond to the said Lewis Stover, conditioned for the payment of #5,000 one year from the date thereof, and secured by a mortgage of even date therewith, upon, inter alia, the said premises Nos. 2210 and 2212 Fitzwater street, which mortgage was recorded March 1, 1875, and was expressly made subject to the above-mentioned ground rents and building and drainage restrictions. Judgment was entered on said bond on September 24,1878, and execution issued thereon.
    4. At the suit of Christopher Dobson against, inter alia, Bridget Loughery, in court of common pleas of Philadelphia county, judgment was obtained by the said Dobson against the said Loughery upon March 8, 1879. Upon the same day the said judgment was marked to the use of Lewis Stover, who, in due course, upon January 17, 1880, issued a writ of venditioni exponas, commanding the sheriff to expose, inter alia, the said premises Nos. 2210 and 2212 Fitzwater street, as the properties of Bridget Loughery, at public sale, subject to the above-mentioned ground rents and building restrictions. At the sheriff’s sale the said Lewis Stover bought in the said premises and title thereto was vested in him by sheriff’s deed, duly acknowledged February 7, 1880, in said court, which deed was made subject to the above-mentioned ground rents and building restrictions.
    5. Upon June 1, 1880, Lewis Stover held legal title to the premises Nos. 2210 and 2212 Fitzwater street, and having never granted or assigned the ground rents thereout reserved by him in his deeds of the said premises to Thomas Fellony, dated July 10, 1874, in the first finding of fact mentioned, and having never assigned the mortgage given to him upon said premises December 9, 1874, by Bridget Loughery in the third finding of fact mentioned, the said Stover, upon the said June 1,1880, in addition to the legal title to the said premises, likewise held legal title to the said ground rents and was possessed of the said mortgage upon the said premises.
    6. Upon June 1, 1880, to secure the payment of the sum of #3,000, the said Lewis Stover executed his bond and mortgage to Philip Frank, dated June 1, 1880, which mortgage was recorded upon the same day wherein the said Stover expressly recited that he did “ grant, bargain, sell, alien and confirm ” unto the said Philip Frank the above-mentioned premises Nos. 2210 and 2212 Fitzwater street, “ under and subject to certain restrictions as to building and drainage.” The said mortgage contains no reference or mention of any sort or kind to or of the ground rents or mortgage mentioned above in the first and third findings of fact, but does refer to the deed poll above mentioned, in which the existence of the said ground rents was recited.
    7. By assignment dated and recorded December 8,1902, the said Lewis Stover did grant and assign the ground rents reserved by him out of Nos. 2210 and 2212 Fitzwater street in the first finding of fact mentioned, unto the Guarantee Trust and Safe Deposit Company, as trustee under the will of Mary C. Penrose.
    8. At the time the premises Nos. 2210 and 2212 Fitzwater street were mortgaged to Philip Frank, as above set forth, there was nothing in the public records to show that the said Stover held ground rents reserved by him out of the said premises in 1874 in trust for the said Mary C. Penrose, then Mary C. Farren, nor anything to show that she or any person other than the said Lewis Stover had any interest whatever in said ground rents. Any interest of any person other than the said Lewis Stover, or any trust in favor of any person, then existing in said ground rents was a secret interest or trust, of which the said Philip Frank had no notice or knowledge of any sort or kind whatsoever when he took the $3,000 mortgage upon the said premises upon June 1, 1880, as aforesaid.
    9. At the time the said Philip Frank took the mortgage upon the said premises, on June 1, 1880, there was nothing in the public records to show that the said Lewis Stover held the mortgage given to him upon said premises by Bridget Loughery upon December 9, 1874, as in the third finding of fact mentioned, for any but his own use, nor did the public records disclose that any other person than the said Stover had any interest of any sort or kind in the said mortgage, or that the said Stover held the said mortgage in trust for any person whatsoever. Any interest of any person other than the said Lewis Stover, or any trust in favor of any person, then existing in said mortgage was a secret interest or trust, of which the said Philip Frank had no notice or knowledge of any sort or kind whatsoever when he took the $3,000 mortgage upon the said premises upon June 1, 1880, as aforesaid.

      ■ ■ 10. The' said Lewis Stover departed this life April 24, 1904.
    . 11. In November, 1904, the said Philip Frank instituted proceedings to foreclose his said mortgage upon the said premises in court of common pleas of Philadelphia county, and so proceeded therewith-that the said premises were sold under said foreclosure proceedings by the sheriff to Philip Frank, Jr., who • took' title thereto by deed poll from the sheriff, dated January 9, 1905, which deed was, upon January 10, 1905, duly acknowledged in said court.
    • 12. On June 1, 1876, the' said Lewis Stover had in his hands moneys of Mary O. Farren, a minor (who subsequently by marriage became Mary C. Penrose), to a considerable amount, probably about the sum of $20,000. How long before that date these moneys came into his hands does not appear from the testimony. He had then also in his hands the eight yearly ground rents mentioned in the first finding. He also had a -mortgage of $5,000 on a portion of the .premises out of which these ground rents were reserved. On February 7, 1880, he obtained title from the sheriff to Nos. 2210 and 2212 Fitzwater 'street (portion of said premises), subject to said 'ground rents.
    18. On June 1, 1880, he executed his bond and mortgage to the plaintiff on the premises Nos. 2210 and 2212 Fitzwater street;
    14. A. writing was produced as of the date of June 1, 1881, ■between Lewis Stover and Mary O. Farren, by which he'agreed that he would thereafter “ hold seven instead of eight of said -ground rents of the par value of $3,000, for the use of the said Mary E. Farren, and the said Lewis Stover doth hereby acknowledge that he holds seven of said ground rents for use, benefit and security of Mary C. Farren, and that he, the said Lewis Stover, will assign them to her upon demand.”
    15. At some time probably subsequent to the date of this agreement, the said Stover mortgaged the said ground rents as his own, and said mortgage or mortgages was or were, according to his own statement, unpaid as late as 1901. By 'December 8, 1902, he had paid off the mortgages and then assigned the ground rents to -the defendant.
    There-is no question of pure fact-in dispute. On June 1, 1880, Lewis Stover, the owner of record of premises Nos. 2210 and 2212 Fitzwater street, mortgaged the same to the plaintiff for $3,000. • ,.
    Besides- being the record owner of the premises, he was also the record owner of a ground rent of $3,000 on each of -the said lots, the same having been reserved by him in 1874.
    To the lots themselves, he took title on February 7, 1880.
    The only question for determination is whether the mortgagee took subject to the ground rent or free and clear of it.
    The general rule is that “ when a greater estate and less coincide and meet in one and the same person, without any intermediate estate, the less is immediately merged, that is, sunk or drowned, in the latter; but they must be in one and the same person, at one and the same time, in one and. the same right: ” Bouvier’s Law Diet.; 20 Am. & Eng. Ency. of Law (2d ed.), 588.
    All these requisites of a merger were present in this case. The estates in the land and in the rent were, according to the record, in Stover, in his own right, at the time of his mortgage to Frank.
    There are two contentions by the defendant:
    1. That there was an intermediate estate between the land and the rent, in one Albert Soley.
    2. That Stover held the rents in trust for Mary C.'Farren (Penrose).
    In support of the first contention, it is advanced that among Mr. Stover’s papers there was found a mortgage from Bridget Loughery to Lewis Stover and that on the back of this paper there were written in the handwriting of Stover, in pencil, the words : “ This mortgage is held for Albert Soley — Int. fr. Dec. 9/76.”
    This is all the evidence. We have no information as to who Albert Soley was, or, indeed, whether he ever existed. There is no light thrown upon any dealings that he ever had with Stover, and — what is still more singular — neither Albert Soley, nor anybody in his interest, comes forward to say that he has any claim whatever upon that mortgage, or ever had. •
    The contention, therefore, that there was an intermediate estate in the said Soley, must be overruled.
    The second contention presents greater difficulties. It is predicated on the notion that Stover had bought the ground rents with the money of Mary O. Farren (Penrose). The proof in support of this allegation is insufficient. Stover in fact owned these rents on July 11, 1874, and there is no real evidence that Mary C. Farren (Penrose) had anything to do with them before June 1, 1881, on which day Stover prepared a paper which was executed by him and Mary Farren. As this was a whole year after he made the Frank mortgage it was ineffective to disturb Frank’s status. It is thought, apparently, that the recitals in the agreement of June 1, 1881, furnish competent evidence of antecedent facts. This proposition cannot be maintained. Two persons cannot by agreement state facts so as retroactively to impair the estate of a third person not a party to the agreement, and who is ignorant, not only of the agreement, but of the facts therein set forth. Moreover, the agreement, on its face, presents abundant evidence of its untrustworthiness.
    It is as follows:
    “ Mem. of agreement made this first day of June, A. d. 1881, between Lewis Stover and Mary C. Farren, as follows:
    “Whereas Bernard N. Farren, guardian of the said Mary C. Farren, did place in the hands of the said Lewis Stover the sum of Twenty thousand dollars, which sum was invested in Ground Rents issuing out of Eight lots of ground, situate on Fitzwater Street between 22d and 23rd Sts. in the City of Philadelphia, of $3,000. Each, in the name of said Lewis Stover, to be assigned to the said Mary. C. Farren upon her request.
    “ And Whereas, the owner of said lots of ground has become insolvent and neglected to pay the accruing rent as the same became due, but the said Lewis Stover hath from time to time advanced and paid to the said Mary C. Farren since the first of June, 1876, the sum of $3,050.00 and some of the said houses have been sold at sheriff’s sale, and bought by the said Lewis Stover, in order to protect said arrears, and others wifi probably be sold in the same way;
    “Nowit is agreed that the said Lewis Stover shall allow and pay to the said Mary C. Farren the sum of Six per cent, on $20,000 from June 1, 1876, to June 1, 1881, amounting to $6,000, in lieu of all ground rent in arrear, and from this date, June 1, 1881, pay the ground rents on seven of said lots as they shall accrue, to wit, June and December of each year, according to the following settlement:
    “ June 1, 1876, Money advanced by B. H. Farren,
    guardian ....... $20,000
    “Int. to June 1, 1881 ..... 6,000
    $26,000
    “ Cash advanced by Lewis Stover. . . 3,050
    $22,950
    “ Cash this day advanced by Lewis Stover. . 1,950
    “ Balance remaining in ground rents . . $21,000
    “ And it is clearly understood that the said Lewis Stover shall hereafter hold seven instead of eight of said ground rents of the par value of $3,000.00 for the use of the said Mary E. Farren and the said Lewis Stover doth hereby acknowledge that he holds seven of said ground rents for use, benefit and security of Mary C. Farren, and that he the said Lewis Stover will assign them to her upon demand, and that the said Mary C. Farren doth hereby agree and acknowledge that one of her said eight ground rents has been paid out and settled by the said Lewis Stover and that she now has the right to demand of the said Lewis Stover seven ground rents of the par value of $3,000 each, instead of eight ground rents as heretofore admitted and acknowledged by the said Lewis Stover.”
    If this means anything, it means :
    1. That on June 1, 1876, Mary Farren became the owner of eight $3,000 ground rents for the sum of $20,000.
    2. That she was entitled to the rent thereon for five years from 1876 to 1881, half-yearly, in all (without interest) $7,200.
    3. That she had received on account thereof $5,000.
    4. That consequently she was now entitled to but seven of the ground rents.
    The real result of this statement is that on June 1, 1881, Mary Farren was entitled to have her eight ground rents and the sum of $2,200 in cash for arrears, whereas by the agreement it is stated to be that Mary loses, not only the arrears, but also one of her ground rents.

      ' But this is not all. The recital concerning the insolvency of the owner of said lots, is not confirmed by any testimony and would, in any event, be no reason for taking title in Stover’s name rather than in Mary Barren’s.
    Moreover, in order to overcome the calculation above made, the agreement expressly substitutes as Mary Farren’s claim, interest on $20,000 for the ground rent itself, thus viewing the $20,000 as a loan to Stover, which is settled as of the date of June 1, 1881, by giving her seven ground rents. Even these seven ground rents are not so described or specified as to be certainly identifiable. From the paper itself, we cannot tell on which side of the street is the land out of which they arise, nor the precise location thereof, on whichever side it may be.
    Such accounting as this must render the statements of the paper entirely too doubtful to be relied on.
    There is, of course, an alternative view. Stover may, at a time before June 1, 1881, have, in his mind, intended to put what may be called a kind of equitable or moral mortgage upon the ground rents as collateral security for the $20,000 he owed Mary Farren. In this way alone could the accounting be justified, but this would negative the antecedent trust for Mary Farren, which would at best date from June 1, 1881, a point of time too late to interfere with the plaintiff’s pre-existing rights.
    The general public policy is to uphold the recording acts. “ A purchaser for a valuable consideration without actual or constructive notice of the trust, holds the property discharged of the interest of the cestui que trust: Perry on Trusts, sec. 218.
    Such a one is entitled to priority in equity as well as at law, according to the well-known maxim that where equities are equal the law shall prevail: Perry on Trusts, sec. 218; Heilnerv. Imbrie, 6 S. & R 401; Mott v. Clark, 9 Pa. 399 ; Bracken v. Miller, 4W. & S. 102; Filby v. Miller, 25 Pa. 264 ; Kramer v.-Arthurs, 7 Pa. 165; Sergeant v. Ingersoll, 7 Pa. 340; 15 Pa. 343.
    These principles are not, it is believed, questioned in any of our cases. The strongest proposition that the defendant can put forward is that though at the time of his mortgage to Frank, Stover was the legal owner of the rent, yet Mary Farren was the equitable owner.
    We have already indicated that we cannot accept this as a fact; but even if we could, we should still be confronted with the condition that the plaintiff dealt in total ignorance of it, that Stover was put in the position of dealing with the property as his own, and that, moreover, from 1876, when the estate of Mary Farren is claimed to have accrued, down to 1902, nothing was done to give public notice of the true state of affairs.
    The policy of the commonwealth is clearly indicated in the “ Act for the greater certainty of title and more secure enjoyment of Real Estate,” approved April 22, 1856, P. L. 532. By the fourth section thereof, implied or constructive trusts are saved from the necessity of being in writing, but the sixth section limits proceedings to enforce any implied or resulting trust as to realty to five years after such trust accrued, unless the same shall have been acknowledged by writing to subsist by the party to be charged therewith within the said period : Provided, that as to anyone affected with a trust by reason of bis fraud, the said limitation shall begin to run only from the discovery thereof, or when by reasonable diligence tbe party defrauded might have discovered the same; but no bona fide purchaser from him shall be affected thereby or deprived of the protection of the said limitation.
    The meaning of this is plain. Recorded titles of bona fide purchasers must prevail even against undiscovered fraud, however plain be the right of the defrauded party to relief against the wrongdoer.
    In our case there is no allegation of fraud on the part of Stover. Careless dealing on both sides, no doubt, there was. But as early as June 1,1881, Mary Farren had a written paper which could protect her right either by recording it or by proceeding upon it, and yet for twenty-one years she remained supine and inactive.
    She certainly has no undiluted equity. The plaintiff, on the other hand, at the time of the mortgage dealt only with Stover, owner of the land and owner of the rent. It would have been not only inequitable, but absurd, for Stover to meet Frank by telling him that the latter’s mortgage was postponed to a rent which he owed himself. Under such circumstances merger is inevitable. A man cannot mortgage his land and then defeat the pledge by declaring that he has split-up the land into two estates, both his own, one of which is exempt from the pledge. Only a solid equity can prevent a merger under such circumstances.
    This we do not think existed either in Stover or in Mary Farren.
    We are of the opinion that the plaintiff is entitled to relief prayed for.
    The court entered the following decree:
    1. That ground rents upon premises Nos. 2210 and 2212 Fitzwater street, Philadelphia, reserved by Lewis Stover and conveyed by the said Stover to the defendant company are merged, extinguished and discharged and have no existence as estates in or encumbrances upon the said premises.
    2. That the defendant company deliver up the said assignment to the plaintiff to be.canceled, and that the said defendant company acknowledge, execute and deliver to plaintiff a deed of extinguishment of the said ground rents.

      Error assigned amongst others was the decree of the court.

      John Gr. Johnson, for appellant.
    The case presented at the trial in the court below, was one in which there was an outstanding mortgage, which prevented any merger: Cook v. Brightly, 46 Pa. 439 ; Peunock v. Eagles, 102 Pa. 295; Charnley v. Hansbury, 13 Pa. 16.

      Stanley Folz, with him Leon H. Folz, for appellee.
    As to Philip Frank, the mortgagee, the ground rents created by Stover in 1874 were merged and extinguished, inasmuch as they were held by Stover, the holder of the legal title to the properties, at the time he made the mortgage to Frank: Philips v. Clarkson, 3 Yeates, 124; Henderson v. Stryker,. 164 Pa. 170; Funk v. Voneida, 11 S. & R. 109; Shaffer v. Greer, 87 Pa. 370 ; Gratz v. Ewalt, 2 Binn. 95 ; Bosler v. Kuhn, 8 W. & S. 183; Ingersoll v. Sergeant, 1 Whart. 337; Coke on Littleton, 143b; James v. Johnson, 6 Johns. Ch. 417; Koons v. Hartman, 7 Watts, 20; Gardner v. Astor, 3 Johns. Ch. 53.
    The Pennsylvania cases recognize these rules. Where one who holds a charge upon land and title thereto, as well, conveys or mortgages the land, without expressly making conveyanee or mortgage subject to the charge, the charge is held to be merged and the grantee or mortgagee of the land takes clear thereof: Brown v. Simpson, 2 Watts, 233 ; Koons v. Hartman, 7 Watts, 20 ; Moore v. Bank, 8 Watts, 138; Richards v. Ayers, 1 W. & S. 485; Riegle v. Seiger, 2 P. & W. 340; Edwards v. Hoopes, 2 Whart. 420 ; Steckel v. Koons, 102 Pa. 493; Hollenberger v. Yaukey, 145 Pa. 179 ; Henderson v. Stryker, 164 Pa. 170 ; Vetter v. Vetter, 13 Pa. Superior Ct. 584; Updegrove v. Updegrove, 1 Pa. 136.
    June 27, 1906 :
    Frank, as a mortgagee, was a purchaser, and having no knowledge of any secret trust in the $5,000 mortgage, is not affected thereby: Brown v. Simpson, 2 Watts, 233; Logan v. Eva, 144 Pa. 312.
    There are four cases in óur reports in which intervening encumbrances exist where a merger of a prior encumbrance held by the owner of the fee was the question in issue. These cases are: Helmbold v. Man, 4 Wharton, 410 ; Moore v. Bank, 8 Watts, 138; Richards v. Ayers, 1 W. & S. 485; Cook v. Brightly, 46 Pa. 439:
    No other cases in point can be found by appellee in our reports. The facts of the four cases are of the same type, and similar to the facts of Cook v. Brightly, 46 Pa. 439.
    From these cases, two propositions may be laid down.
    1. Encumbrances intervening between a prior encumbrance and the acquisition by the holder of that prior encumbrance of title to the fee, prevent a merger when the intervening encumbrances are outstanding encumbrances held by some third party a stranger to the title to the fee.
    2. The merger of the prior encumbrance in such cases is prevented only as against the holders of the junior intervening outstanding encumbrances.
   Opinion by

Mr. Justice Mestrezat,

In the adjudication, the learned trial judge has found and stated at length the facts of the case and given sufficient reasons to sustain the decree which was entered by the court below. As said by him, the only question for determination is whether the mortgagee took subject to the ground rents or free and clear of them. We think that the rents were merged in the fee when Frank acquired his mortgage from Stover in 1880. The defendant denies the merger because, as it alleges, (a) there was an intermediate estate between the title to the land and the rents in one Albert Soley; and (b) Stover held the rents in trust for Mary C. Farren, subsequently Mrs. Mary C. Penrose, now deceased.

It is settled that a ground rent does not merge by the purchase of land out of which it issues by the owner of the rent where there is an intervening estate in, or charge on, the land held by a third party, a stranger to the title to the fee. The alleged intermediate estate in Soley was a mortgage created by a former owner of the title to the ground in favor of Stover. After the latter’s death the mortgage was found in his possession and on the back of it was written in bis handwriting, in pencil, the words : “ This mortgage is held for Albert Soley' — ■ Int. fr. Dec. 9 /76.” For the reasons stated by him, the learned trial judge held that the title to the mortgage was not shown to be out of Stover, the mortgagee, or in Soley, and that “ any interest of any person other than the said Lewis Stover, or any trust in favor of any person, then existing in said ground rents was a secret interest or trust, of which the said Philip Frank had no notice or knowledge of any sort or kind whatsoever when he took the $3,000 mortgage upon the said premises upon June 1, 1880, as aforesaid.” This language properly characterizes the title of Soley or any person other than Stover to the mortgage. Whatever may be the rights of Stover and Soley to the mortgage as between themselves, it is certain that it cannot avail the defendant as an intermediate charge or estate to defeat or impair the title of the plaintiff to the property in dispute. Neither he nor Frank, the mortgagee, through whose title he claims, had notice, actual or constructive, of the title to the Loughery mortgage being in a person other than Stover. A mortgagee is a purchaser, and, as said by Mr. Justice McCollum in Logan v. Eva, 144 Pa. 312, “it is well settled that a purchaser of land is unaffected by a secret trust or equity unknown to him, and that he may pass title thereto, untrammeled by the trust, to a person who has notice of it.” “ Secret liens or trusts,” says Kennedy, J., in Brown v. Simpson, 2 Watts, 233, “ are not to be encouraged upon any species of property whatever; but in no case can such a thing prevail as to real estate against an innocent purchaser of it for a full and valuable consideration without notice, unless our recording acts are to be overturned and set aside.”

The facts of the case negative the defendant’s theory that Stover regarded himself as holding the Loughery mortgage in trust for Soley, and show that the mortgage was apparently worthless. Two years after his interest in the mortgage is supposed to have passed to Soley, Stover entered judgment in his own name on the bond accompanying the mortgage and issued execution thereon, which was stayed by the court on the allegation that the mortgage and bond were given without consideration. Soley was not a party to or known in these proceedings.

We think that under the facts disclosed here, Stover was the owner of the mortgage, the estate intermediate between the ground rents and the title in fee to the land acquired by him, and that consequently it did not prevent the merger of the rents in the fee. '

Stover was the owner of the ground rents in 1874 and there was nothing of record to show that he did not own them in June, 1880, when Frank took from him the mortgage on which the property was sold and conveyed by the sheriff to the plaintiff. The first written evidence of Mary C. Farren’s interest in the rents is the agreement of June 1, 1881, a year after Stover had mortgaged the land to Frank. There is no allegation that Frank had any knowledge of the ownership of the rents other than what the record disclosed, which was that the title was in Stover. When Frank took the mortgage on the land from Stover in 1880, with full covenants and without excepting therefrom the ground rents, the record owner of both the land and the rents was Stover. This under all the authorities was an extinguishment of the rents, or a merger of them in the title to the land held by Stover. The two estates had united in Stover and his act in conveying the title in fee was a declaration of his intention to extinguish the rents, and, as to him, it was irrevocable: Ames v. Miller (Neb.), 91 N. W. Repr. 250. There was, therefore, a merger of the rents in the title to the ground, and of this a grantee of the rents was required to take notice so far as third persons without notice were affected. He could occupy no higher ground than Stover himself. The record showed that the titles to the two estates were in Stover at the same time and that he then conveyed without exception or reservation the title to the land in fee to Frank. This disclosed record notice that the ground rents had by the act of Stover, the owner thereof, been merged in the title to the land which he had conveyed to another, and therefore that the rents could not, in 1881, be conveyed by him to Miss Farren. She is presumed to know the law, and the facts appearing from the record, she is charged with notice of their legal effect. When, therefore, on June 1, 1881, she accepted Stover’s written declaration that he would hold the ground rents for the use of Miss Farren, she is presumed to have known that the rents were extinguished, or “ sunk or drowned,” in the title to the' land, and had passed with it beyond his control and ownership.

The fact that the sheriff sold the land subject to the ground rents did not prevent their subsequent merger, nor was it notice to Frank, the mortgagee, that they were subsisting encumbrances when he took his mortgage. The judgment on which the sale was made was a lien on Mrs. Loughery’s title to the land which was subject to the rents, and the sale made by the sheriff on the execution was necessarily subject to the rents, and Stover, the purchaser, took the fee thus encumbered. Prior to the time the fee was thus vested in him, there was no merger, but when it was vested in him by the sheriff’s sale, he being the owner of the rents, the two estates coalesced or united in him, and thereafter he could convey them to separate parties, or merge them and convey the fee, as he did, to one party. A judgment creditor would have a lien on the merged estates or fee, and a sale on execution would pass the whole title: Kreamer v. Fleming, 191 Pa. 534; s. c., 200 Pa. 414. In this case, the widow purchased from her children the fee in real estate, in which she had a dower interest. In speaking of the effect of the widow’s purchase on her dower estate, the present Chief Justice delivering the opinion in the case says : “ When she purchased the children’s estate she purchased the fee they had, and her own life interest merged in it. It might be that as between the parties no merger was intended, though it is not apparent what interest they had to support such intention, but as to third parties no such intent could control the legal effect and operation of their acts. A conveyance by appellant (the widow) without express reservation of dower would have carried a clear fee, and she could not have set up against it the intention of the parties in the conveyance to her. So a levy and sale by a creditor on a judgment against her would have been of the fee. . . . There was no question of a discharge of dower or the sale of a life estate. The dotyer had merged, the sale was by a creditor on a judgment, and was of the fee vested in the judgment debtor.”

The learned judge was clearly right in holding that the trust in fee of Miss Farren in the ground rents was, as to the plaintiff, effective only from June 1, 1881, the date of the written declaration executed by Stover, and that the declaration was not competent evidence of the antecedent facts which it stated. It is indeed a singular proposition that two parties may, by a written agreement executed by them, make a statement of alleged facts therein contained evidence to defeat the title to real estate of a third party who had no knowledge of the agreement or its contents. The fallacy of the proposition is so apparent that it needs no discussion.

On June 1, 1880, when Stover conveyed the land in mortgage to Frank, the former was the record owner of the title to the land and to the ground rents, as well as the holder of the Loughery mortgage. There was therefore no intermediate estate or charge held by a third party between the rents and the fee, and there was nothing in the mortgage to indicate Stover’s intention to prevent a merger of the rents in the title to the land. It follows that the rents were extinguished, and that the fee in the land passed by the mortgage to Frank discharged of them, and is now held by the plaintiff by virtue of the sale made by the sheriff on a writ issued on the judgment obtained on the mortgage.

The decree is affirmed.

Mitchell, G. J., and Fell, J., dissent.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Fulton, Appellant, v. Walters.

      Contract — Sale of land — Compensation—Principal and agent — Fraud.
    Where an owner of land agrees to pay to another person as compensation for securing a purchaser for the land all above a minimum sum per acre, and a fixed sum in addition, and such person sells the land for an amount above the minimum, the fact that he refuses to tell the owner for how much he sold the land, or states to him that he sold it at the minimum, will not deprive him of his right to recover the additional fixed sum agreed upon. In such a case there is no such relation of trust and confidence between the parties as will require a disclosure to the owner of the terms of the sale.
    There is no principle of law that obliges one who has made an honest contract with another, to communicate to that other anything subsequently happening that might be an inducement to that other to repudiate his contract.
    Everhart v. Searle, 71 Pa. 256, distinguished.
    Argued May 7, 1906.
    June 27, 1906:
    Appeal, No. 289, Jan. T., 1906, by plaintiff, from judgment of Superior Court, April T., 1905, No. 1, reversing judgment of C. P. Fayette Co., Dec. T., 1900, No. 253, on verdict for plaintiff in ease of E. D. Fulton v. Allen S. Walters.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Reversed.
    Appeal from Superior Court.
    The facts appear by the opinion of the Supreme Court, and by the report of the case in 28 Pa. Superior Ct. 269.

      Brror assigned was the judgment of the Superior Court.

      H. S. Dumbauld, of Sterling, Higbee, Dumbauld & Brown, with him A. D. Boyd, for appellant.

      H. L. Robinson, of Robinson & McKean, for appellee.
   Opinion by

Mr. Justice Stewart,

The facts of this case differ so materially from those in Everhart v. Searle, 71 Pa. 256, that the doctrine of the latter is without application here. A brief recital will make this obvious.

In Everhart v. Searle, the fact that Searle was agent for both buyer and seller was admitted. He had a separate written contract with each. He was to receive from Flagg as his compensation for making sale of the land, all above $125 per acre; he was to receive from Everhart $500 for his services in assisting him in the purchase. Flagg knew nothing of the contract with Everhart, and Everhart knew nothing of the contract with Flagg. As stated by Thompson, C. J., who delivered the opinion, that case as presented involved “ the question whether the same person may be an agent in a private transaction for both parties without the consent of both, so as to entitle him to compensation from both or either.” A negative answer to this proposition necessarily determined the case adversely to Searle. No such question arises here. The verdict of the jury in the present case was a distinct finding that the agreement between Fulton and Walters was that if the former would find a purchaser for the land before Walters lost control of it by expiration of his option on part, he should have all in excess of $275 per acre, and that Walters would pay him $500 in addition for his services. There is no suggestion anywhere that Fulton was employed by Martin, the purchaser, or that he stood in any relation of trust and confidence toward him. His attitude with respect to Martin was exactly that of Walters. Between Fulton and Martin there was a plain and palpable antagonism of interest, as much so as there would have been between Walters and Martin had not Fulton intervened. It was the interest of Fulton to obtain the largest possible price for the land — the larger the price the larger his compensation; it was the interest of Martin to secure the land at the least possible price. Manifestly this was not a case of divided allegiance, and it is impossible to bring Fulton’s claim for $500 compensation under condemnation of that principle which defeated the claim of Searle. If it is to be disallowed it must be for some other reason than that Fulton had engaged to serve two masters, for he had not. With the reasonableness of his contract with Martin we have nothing to do. It was a contract between parties competent to make it, and it offends against no rule of law. What he received by way of excess in price obtained over the $275, required by Walters, is not to be considered. He is entitled to recover in addition his $500, unless he has forfeited his right to it by some fraudulent practice, or what would be its equivalent, failure in some duty he owed to Walters. The latter is that the appellee would derive from the transaction, because of the fact that Fulton refused to disclose to Walters how much in excess of $275 per acre Martin was paying for the land; or, to put it somewhat stronger, and adopting the statement of Walters in regard to the matter, because he represented to Walters that he was not getting anything out of the transaction. Whether it was concealment or misrepresentation is immaterial. We are not dealing with questions of casuistry, but with legal effect and consequence. The reasoning that would forfeit Fulton’s right to compensation on this account, assumes that Fulton was Martin’s agent in the transaction. If agency existed, it was such a qualified and restricted one that to apply to it the strict rule which governs that relation ordinarily, would be unreasonable and work unjust results. It may dignify the employment to call it an agency, but it lacks every essential feature and characteristic of agency as that relation is understood in law. Agency means delegated authoritj-, and always implies some trust or confidence in the exercise of that authority. What authority was delegated to Fulton ? Absolutely none that was not given to all others in the same measure. He was without authority to make a binding contract for Walters with respect to the land, or to obligate him for a penny on any account; he was not authorized to do or receive anything in his name or on his behalf for which there could be an accounting. Nor was Walters bound to wait on Fulton. He could have sold all the land to anyone meanwhile without regard to Fulton, to whom he had given no exclusive privilege. Had Walters announced a public sale of his land, the man who posted his advertisements would have been quite as much his agent as Fulton was under the arrangement that existed. What duty did Fulton owe to Walters ? The answer must be the same — none. How could any duty arise when Fulton, by nothing he could do, could disappoint, or compromise, or prejudice, or obligate Walters ? Had it been an agency pure and simple, of course it would have been Fulton’s duty to acquaint his principal with the price at which Martin was getting the land; but under their agreement Fulton was to get, and was allowed to retain, all in excess pf $275 per acre. It was no concern of Walters, however interesting it might have been to him, to know what Boulton was making out of it. He was not prejudiced by having the information withheld. It is replied to this, that prejudice is not a consideration in such.matters ; that public policy condemns such conduct as that of Fulton; but this again is based on the assumption that the relation of trust and confidence existed, whereas there was nothing of the kind. It is said that good faith required full disclosure by Fulton, so that Walters, being apprised of the real value of his land, might have the opportunity of declining to sell it if he so desired. The argument in effect is, that good faith required Fulton to supply Walters with the occasion, opportunity and inducement to practice bad faith with him. We know of no principle of law that obliges one who has made an honest contract with another, to communicate to that other anything subsequently happening that might be an inducement to that other to repudiate his contract.

Good faith certainly did not require Fulton to substitute for the advantage he would derive under his contract, if kept and fulfilled by Walters, a claim in damages for a breach of that contract. A careful review of the case upon the law and the evidence, leaves us entirely satisfied that the judgment of the court below in overruling the motion for judgment for defendant non obstante veredicto was correct.

The judgment of the Superior Court is reversed and the judgment of the court below is reinstated and affirmed.


author: Mr. Justice Brown,

text:
    Hetzel, Appellant, v. Lincoln.

      Husband and wife — Estate by entireties — Deed—Judgment.
    Where land is conveyed to a man and woman by name, “jointly,” who are in fact husband and wife, and subsequently a judgment is entered against the husband, after which he conveys all his interest in the land, described as “the undivided one-half,” to his wife, and thereafter a judgment of revival is entered against the husband with notice to the wife as terre-tenant, the wife after the death of the husband is entitled to the land free from the lien of the judgment.
    The Act of June 8,1893, P. L. 344, has no application to such a case.
    Argued May 7, 1906.
    Appeal, No. 362, Jan. T., 1905, by plaintiff, from judgment of C. P. Union Co., Jan. T., 1903, No. 45, on verdict for defendant in case of Hiram H. Hetzel, Administrator of the Estate of Mary A. Hetzel, deceased, v. John W. Lincoln, Administrator of the Estate of Richard Y. B. Lincoln, deceased, with notice to Anna M. Lincoln, Terretenant.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Scire facias to revive a judgment. Before McClure, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Plaintiff presented the following points :
    1. That the evidence raises the fair presumption that it was the intent of Richard V. B. Lincoln and Anna M. Lincoln to hold the lands conveyed to' them by Robert Reed and wife, by deed dated March 31, 1874, not as an estate by entireties, but in equal undivided interests as tenants in common; and that under the laws of Pennsylvania effect will be given to such intent, and the title be regarded as held by them accordingly; and that the undivided interest which passed from Richard V. B. Lincoln to Anna M. Lincoln by the deed of June 25, 1894, was subject to the lien of the judgment of Mary A. Hetzel v. Richard V. B. Lincoln, No. 94, of March Term, 1893, revived to No. 42, of March Term, 1898, with notice to said Anna M. Lincoln as terre-tenant, and now sought to be revived in the present proceeding. -Answer: Refused. [1]
    2. That if the law makes the estate conveyed by Robert Reed and wife to Richard Y. B. Lincoln and Anna M. Lincoln an estate by tbe entireties, the deed of Richard V. B. Lincoln of June 25, 1894, to Anna M. Lincoln and its acceptance by her; her subsequent dealing with the land so conveyed; and her allowing said judgment No. 94, March Term, 1898, to be revived against her as terre-tenant, show an intent to sever said estate by entireties, and an arrangement between Richard V. B. Lincoln and herself to hold said lands in undivided interests; and that, if the jury believe that there was such an arrangement, then said arrangement amounted to a partition ; and when in pursuance of said arrangement Anna M. Lincoln received from Richard Y. B. Lincoln a conveyance of his undivided one-half of said lands, she took the same subject to the lien of the Hetzel judgment, now sought to be revived. Answer: Refused. [2]
    3. That Anna M. Lincoln was bound to defend against the revival of the judgment No. 94, March Term, 1893, when she was served as terre-tenant with adversary process, if she had any defense thereto; but having alloweda judgment of revival to be entered against her on March 19, 1898, to No. 42, March Term, 1898, it became conclusive, and she will not be allowed to convert the lien of said judgment against the undivided half interest in the lands conveyed to her by the deed of June 25, 1894, by said Richard Y. B. Lincoln, but judgment of revival must be entered against her as terre-tenant in the proceeding now pending. Answer : Refused. [3]
    4. Under all the evidence the verdict must be for the plaintiff. Answer: Refused. [4]
    The court gave binding instructions for defendant. [5]
    Plaintiff appealed.

      Errors assigned were (1-5) above instructions, quoting them.

      Alfred Hayes and Andrew A. Leiser, for appellant.
    As shown by all the authorities the estate by entireties, in the case of a conveyance to a husband and wife, is created because “ they are but one person in law, and it is founded upon the nature of marriage and the rights and incapacities which it establishes. But the reason gone, the rule should be likewise: ” Merritt v. Whitlock, 200 Pa. 50.
    Even if Richard Y. B. Lincoln and Anna M, Lincoln held originally by entireties, there was a severance and parol partition : Ebert v. Wood, 1 Binney, 216; Enyeart v. Kepler, 118 Ind. 84 (20 N. E. Repr. 539) ; Thornburg v. Wiggins, 135 Ind. 178 (34 N. E. Repr. 999).
    June 27, 1906 :
    It is respectfully submitted that holding as terre-tenant and permitting judgment to be recovered against her as terre-tenant, she was bound by the judgment so entered, and she is now estopped to deny such tenancy, and the court was clearly in error in directing a verdict for her : Colborn v. Trimpey, 36 Pa. 463; Colwell v. Easley, 83 Pa. 31; Hulett v. Mut. Life Ins. Co., 114 Pa. 142; Cardesa v. Humes, 5 S. & R. 65; Blythe v. Richards, 10 S. & R. 261; Davidson v. Thornton, 7 Pa. 128; Pittsburg, Cin. & St. L. Ry. Co. v. Marshall, 85 Pa. 187; Dowling v. McGregor, 91 Pa. 410; Campbell’s App., 118 Pa. 128; Trader v. Lawrence, 182 Pa. 233.

      Horace P. Glover, with him David L. Glover,

    for appellee, cited : Stuckey v. Keefe, 26 Pa. 397 ; Diver v. Diver, 56 Pa. 106 ; Bramberry’s Estate, 156 Pa. 628; Gillan v. Dixon, 65 Pa. 395; Fleek v. Zillhaver, 117 Pa. 213; Haak’s App., 100 Pa. 59; Coyle v. Reynolds, 7 S. & R. 328; Sankey v. Reed, 12 Pa. 95; Colwell v. Casley, 83 Pa. 31.
   Opinion by

Mr. Justice Brown,

The land against which the appellant insists the judgment of his decedent is alien was conveyed to Richard Y. B. Lincoln and Anna M. Lincoln “ jointly,” by deed from Robert Reed, dated March 31,1874. At that time the grantees were husband and wife. On February 22, 1893, Mary A. Hetzel obtained a judgment against the husband for $2,000. On June 25, 1894, the husband conveyed all of his interest in the land to his wife, the appellee, calling it “ the undivided one-half.” Within five years from the entry of the Hetzel judgment a writ of scire facias was issued to revive it against Richard Y. B. Lincoln, the defendant, with notice to his wife as terre-tenant, and judgment of revival was entered March 19,1898, for want of an appearance. Lincoln died June 18, 1901, and this scire facias was issued November 7, 1902, against his administrator, with notice to the appellee as terre-tenant. On the trial a verdict was directed in her favor.

That the appellee and her husband took and held the land by entireties under the Reed deed cannot be questioned; but it is contended that, as the husband conveyed his interest to his wife as “ the undivided one-half,” and they subsequently executed a mortgage on the land, in which there is a reference to the conveyance by the husband, there is evidence of an intention that they held as tenants in common, and ought, therefore, to be regarded as such. Whatever may have been the intention of the husband, the right of the wife was fixed by the deed from Reed. By it each held by an entirety, and upon the death of either the estate would vest absolutely in the other as the survivor. The husband conveyed nothing to the wife that she would not have enjoyed if she survived him, as she did, and how his interest in the land, which was not liable for the payment of the Hetzel judgment unless he survived her, instantly became bound by the same as an enforceable lien against it by her acceptance of a deed for the unbound interest, is incomprehensible. But as this is the position taken by the appellant, it is our duty to notice it, though in doing so we cannot say more of it than that we do not understand it, because we cannot understand how an interest in land unbound by a judgment becomes bound by the same the moment the owner of that interest conveys it to another. In merely parting with the defeasible interest in the land the character of the lien upon it was not changed.

Another contention of counsel for appellant is, that in view of the Act of June 8, 1893, P. L. 344, Mrs. Lincoln ought to be regarded as a tenant in common with her husband. As already stated, her interest in the land was just what the Reed deed gave her, and this is what she is asserting. In that deed there is no evidence of any intention on the part of the grantor that the grantees should take any other estate than that arising from tenancy by husband and wife, and that estate was not changed by a statute passed nearly twenty years afterwards, giving to a married woman, as to her separate and independent estate, the same rights and powers as are possessed by an unmarried person. What the effect of the act of 1893 may be upon estates created since its passage is not the question now before us. At the time of the Reed conveyance the common-law rule as to tenancy by a husband and wife had. not been affected by our legislation. Seven years before, in Diver v. Diver, 66 Pa. 106, this court held that the act of 1848 did not convert an estate granted to husband and wife into a tenancy in common, and it was said of that act, “ To hold it as operating upon the deed conveying land to a wife, making such deed assure a different estate from what it would have assured without the act, is to lose sight of the legislative purpose. Were we to do so, it would become in many cases a means of divesting her of her property, instead of an instrument of protection. In the present case, if it has converted the estate granted to Diver and his wife into a tenancy in common, it has taken from her her ownership and enjoyment of the entirety during her husband’s life and her right of survivorship to the whole. On this subject the remarks of Chief Justice Lewis in Stuckey v. Keefe’s Executors, 26 Pa. 397, are worthy of attention. We hold then that no such effect is to be given to the act of '1848, or any of its cognate acts. The legal unity of husband and wife still remains, and consequently Mrs. Diver, on the death of her husband, succeeded to the whole estate granted by the deed.” And so here, Mrs. Lincoln, on the death of her husband, took the whole estate granted by the Reed deed.

In 1898, when the appellee passively permitted the judgment against her husband to be revived, with notice to her as terretenant, she could not have done anything else. The judgment was a lien upon the defeasible estate of the husband. The wife could have made no defense in that scire facias that would have prevented the lien from becoming absolute if the defeasible estate of the defendant in the land should become absolute by her death. She was as likely to die first as he. When, by his death, she came into the enjoyment and possession of the whole estate under the deed from Reed she could, as terre-tenant, say that with the disappearance of the husband’s estate, the lien of the judgment against him disappeared with it. The opportunity to say this came to her in the present proceeding, and the judgment of the court below, sustaining her, is affirmed.


author: Mb,. Justice Mestrezat,

text:
    Marshall v. Sonneman, Appellant.

      Promissory notes — Protest—Notice.
    In order that an indorser of a promissory note may be made liable for its payment after the note has been dishonored, notice of the nonpayment must come from the holder himself, or some one who was a party, and the notice must assert that the holder intends to stand on his legal right, and to resort to the indorser for payment. Mere knowledge of the nonpayment on the part of the indorser is not sufficient to charge him with liability.
    A notice of protest signed by a notary public, and personally delivered by him to the indorser is not sufficient to charge the latter, where it appears that the notice was addressed to another person than the indorser, and stated that the holder looked to such person for the payment of the note.
    Argued May 14, 1906.
    Appeal, No. 150, Jan. T., 1906, by defendant, from judgment of C. P. York Co., Jan. T., 1905, No. 27, on verdict for plaintiff in case of L. A. Marshall v. August Sonneman.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Assumpsit on a promissory note. Before Bitteng-er, P. J.
    At the trial it appeared that the note in suit was as follows :
    “•$4000 York, Pa., Nov. 2,1903
    “ One hundred twenty days after date I promise to pay to the order of A. Sonneman at L. A. Marshall
    & Co., Bankers, York, Penna.
    Four thousand Dollars without defalcation for
    value received, waiving the benefit of the Exemption and Stay laws.
    “No. Post Office
    “ Due March 29, Feb. 29 24099 M. Fink
    Mar. 1.
    “ Endorsers. A. Sonneman „ “L. A. Marshall.”
    Other facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,756.14. Defendant appealed.

      Hrror assigned amongst others was (2) in rejecting the notice of the protest offered in evidence by the defendant.

      June 27, 1906 :

      Henry C. Niles, with, him George E. Neff, for appellant.
    Mere knowledge of nonpayment is not sufficient notice to hold the indorser: First Nat. Bank of Lancaster v. Shreiner, 110 Pa. 188; Remer v. Downer, 23 Wendell, 620; Etting v. Schuylkill Bank, 2 Pa. 355 ; Paine v. Edsell, 19 Pa. 178.
    The certificate of the notary may be contradicted: Stewart v. Allison, 6 S. & R. 324.

      John A. Hoober, with him James G. Glessner and Allen C. Wiest, for appellee.
    The notice contains a most precise description of the note, a statement that payment was demanded and refused and that the note was protested for nonpayment. It is entitled in large letters “ notice of protest.” The description of the note is so full that it cannot be read without at once having attention directed to the note in suit and being informed that it was dishonored. It is therefore entirely within the requirements of the negotiable instruments law : Tobey v. Lennig, 14 Pa. 483; Stephenson v. Dickson, 24 Pa. 148; Natl. Bank of Stewartstown v. Day, 15 York Leg. Rec. 21.
    To relieve Sonneman he must have proven not only that he received no notice of the protest, but also that no notice was given or due diligence used to apprise him of the default of the maker: Tradesmen’s Bank of Vineland v. Tillyer, 12 Pa. C. C. Rep. 452; Braneher v. Beltz, 2 Leg. Rec. 394; McGee v. Northumberland Bank, 5 Watts, 32.
   Opinion by

Mb,. Justice Mestrezat,

This is an action by an inddrsee against an indorser to recover the balance due on a promissory note. One of the defenses interposed at the trial was an alleged failure to give the defendant notice of the dishonor of the note. The. plaintiff proved the execution of the note by the maker and introduced testimony to show that the defendant had indorsed it. A notary public was .then called and he testified that he liad protested the note at maturity for nonpayment and that on the same day he had delivered notices of protest personally to both the plaintiff and the defendant, who were the indorsers. He said he gave but one notice to the defendant. The certificate of protest was offered in evidence, by which it appears that the note was protested on the day it bécame due and that the notary had notified the indorsers “by notices of protest personally delivered to ” the plaintiff and defendant. A copy of the notice was not produced at the trial by the plaintiff.

The defendant denied that he had received notice of the dishonor of the note. He testified that the notary delivered to him an envelope addressed to L. A. Marshall, the plaintiff, which contained the following notice:

“Notice of Protest.
“York, Pa., March 1, 1904.
“ L. A. Marshall.
“ Please take notice that the note of M. Fink for four thousand dollars in favor of A. Sonaman dated York, Pa. Nov. 2, 1903, payable March 1, at L. A. Marshall & Co., Bankers, York, Penna. and by you endorsed, (being due this day, payment having been demanded and refused,) is protested for non-payment, and that the holders look to you for the payment thereof.
“ Respectfully yours,
“ Henry K. Kraber,
“Notary Public.”

The defendant further testified that the notary gave him no other notice, paper or envelope. Pie then offered in evidence the notice which, on objection by the plaintiff, the trial judge excluded, stating the reason for his ruling as follows: “ I think there is sufficient notice there to hold him under the law. If this was addressed through the post office it would not be evidence, because he would not have received it; but it was delivered to him at his place of business and he could not help but have notice. We do not think it shows want of notice, but on the other-hand it shows sufficient notice although it was improperly addressed.” This is the subject of the second assignment of error.

The correctness of the ruling of the learned court depends upon the sufficiency of this notice. If it was sufficient notice to the defendant of the dishonor of the note, he was not injured by the exclusion of the offer. He admits he received the notice from the notary on the day the note was protested. If, however, the notice was insufficient to charge the defendant with liability on the note, it was error to exclude the offer. In that view it became a question for the jury to determine under the evidence whether legal notice of dishonor had been given, and as bearing on that question, it is apparent that this notice was competent evidence. The notary testified that he delivered only one notice to the defendant, but he denied that the notice excluded was the one he gave the defendant. The defendant testified that he received but one notice from the plaintiff, and that the paper in question was that notice. It is true that the certificate of protest showed that a notice had been delivered to the defendant, but that was only prima facia evidence of the fact and the party could contradict it by other evidence. It was therefore a question of fact for the jury what, if any, notice of protest was given the defendant; and if they had found that the only notice given him was the paper produced by him on the trial it would have been the duty of the court to determine the legal effect of the paper, and if that had been against its sufficiency as a notice, the verdict should have been for the defendant. The controlling question in the case, therefore, was the sufficiency of the notice.

If the holder of negotiable paper desires to charge antecedent parties with its payment it is incumbent on him to give them notice of its dishonor. He may notify either or all of the prior indorsers, but he can compel payment only from those who have received notice of the maker’s default. The notice may be either written or verbal, or it may be partly written 'and partly verbal. “All that is necessary,” says the learned author of Byles on Bills, *276, “is to apprise the party liable of the dishonor of the bill in question, and to intimate that he is expected to pay it. And an announcement of the dishonor will (at least if it come from the holder) amount to a sufficient intimation to the indorser that he is liable.” It is sufficient if under ail the circumstances the language of the notice imports that the indorser is looked to for payment, and it would seem not unfair to imply such intention from the very fact of sending notice of dishonor: 7 Cyclopedia of Law and Procedure, 1109. The weight of authority is that a notice of dishonor is sufficient to charge an indorser if it comes from the holder or his agent and notifies the indorser that the note was presented and payment was refused. Notice of nonpayment, however, is not sufficient; nor is mere knowledge of protest all that is required to charge the indorser. Says the author above quoted (p. 276) : “ Notice does not mean mere knowledge, but an actual notification. For a man who can be clearly shown to have known beforehand that the bill would be dishonored is, nevertheless, entitled to notice.” In Tindal v. Brown, 1 Term Rep. 167, Ashhurst, J., says : “ Notice means something more than knowledge, because it is competent to the holder to give credit to the maker. It is not enough to say that the maker does not intend to pay, but that the holder does not intend to give credit to such maker: the party ought to know whether the holder intends to give credit to the maker or to resort to him.” And in the same case Bxjller, J., observes: “ The notice ought to purport that the holder looks to the party for payment, and a notice from another party cannot be sufficient ; it must come from the holder.” This case and many other English authorities are cited on the subject in the opinion of this court in Juniata Bank v. Hale, 16 S. & R. 157, where it is said (p. 160) : “ That knowledge of nonpayment is not notice, is very clear; for the notice must come from the holder himself, or someone who is a party; for the notice must assert that the holder intends to stand on his legal rights, and to resort to the indorser for payment; and, therefore, where the drawer had notice before the bill was due that the acceptor had failed, and gave another person money to pay the bill, and the holder neglected to give notice of its dishonor, it was held that the drawer was discharged.”

We are of opinion that the written notice which the defendant alleges was delivered to him was not sufficient to charge him with the dishonor of the note. It was in proper form, signed by a notary, and was delivered in due time. But on its i'ace, it clearly discloses the fact that it was not intended for the defendant. It was directed to L. A. Marshall, the plaintiff, and the envelope containing it bore the same address. Marshall, like the defendant, was also an indorser of the note, and if the holder intended to impose liability on him it was necessary that he should have notice of dishonor. It is therefore apparent that this notice was intended for Marshall and was, of course, for the purpose of apprising him of the dishonor of the note and was prepared by the notary with that intention. The notary does not testify that at the time he delivered the.envelope containing the notice he told the defendant what it contained or said anything to him concerning its contents. He did not apprise the defendant that the note had been dishonored or that the notice was intended for him. He gave the defendant no verbal notice whatever, and hence all the information the latter had of the dishonor of the note and the intention of the holder to guard his rights and to avoid responsibility by fixjng liability on antecedent parties was what was contained in the envelope addressed to Marshall. This, as we have observed, was a notice to Marshall that the note “ by you indorsed ” was protested for nonpayment, “ and that the holders look to you for the payment thereof.” Why should the defendant accept this as a notice of dishonor to him and take care of the note ? There is no intimation in the paper that the holder intended to look to him for payment. On the contrary, the notice is that the holder will look to Marshall, his immediate prior indorser, for payment. This he had a legal right to do, and was not compelled to notify the defendant or any other indorser or to demand payment of him. If Marshall desired to hold the defendant responsible as a prior indorser, it was incumbent upon him to give the latter notice of dishonor. The defendant was justified in treating the paper delivered to him by the notary as a notice to Marshall, as the address on the envelope and notice disclosed, and that the purpose was to notify Marshall of dishonor for the purpose of charging him with payment of the note. If either the envelope or the notice had been addressed to the defendant, or if neither had been addressed to him, the plaintiff’s contention that the notice was for the defendant would have some ground for its support. If, when he delivered the paper, the notary had notified the defendant verbally that the note had been dishonored or that the written notice was for him, there would be sufficient to charge the defendant with notice of dishonor. But none of these facts can be found in the case. Assuming that the defendant opened the envelope and read its contents, he simply obtained the knowledge that the note was dishonored and that the holder would look to Marshall, the last indorser, for payment. This, as we have seen, is not sufficient under the cases to fix the defendant, as an indorser, for the payment of the note.

For the reasons above stated, the second assignment of error is sustained, and the judgment is reversed with a venire facias de novo.


text:
    Commonwealth v. Shoener, Appellant.

      Criminal law — Public officers — Demand for payment of public funds— Statute of limitations — Act of March 31, 1860, P. L. 382.
    A public officer cannot be convicted of failing to pay over public moneys on proper demand, as provided by the Act of March 31, 1860, sec. 65, P. L. 382, until an actual and not a constructive demand has been made by the proper officer or person authorized to demand and receive the money. Until such demand is made no offense has been committed. The statute of limitations begins to run, therefore, only from the date of the demand.

      Criminal law — Pleading—Former acquittal — Public officer.

    On a demurrer to a plea in bar the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled thereto. If the plea is former acquittal, the question whether the former acquittal was for the same offense depends upon the record pleaded, and not on the arguments or inferences deduced therefrom.
    The true test whether the plea autrefois acquit be a good bar, is whether the evidence necessary to suppoi't the second indictment would have been sufficient to have secured a legal conviction on the first.
    Where a public officer has been convicted of failing to pay over public moneys after demand made upon him, and the conviction has been reversed by the Supreme Court on the ground that no proper demand was or could have been made upon the defendant pending the determination in a civil proceeding of his right to hold the money, such a reversal cannot be pleaded as a former acquittal to a subsequent indictment for failing to pay over the moneys, where it appears that the civil proceedings were concluded against the defendant, and that a demand was made thereafter by the proper officer.
    Argued May 15, 1906.
    Appeal, No. 131, Jan. T., 1906, by defendant, from judgment of Superior Court, Oct. T., 1905, No. 211, affirming judgment of Q. S. Schuylkill Co., Sept. T., 1905, No. 905, on verdict of guilty in case of Commonwealth v. John T. Shoener.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.

      Appeal from Superior Court.
    The opinion of the Superior Court, 80 Pa. Superior Ct. 821, was as follows:
    The first specification alleges that the court below erred “ in overruling the third paragraph of defendant’s demurrer, which paragraph is as follows : That the offense charged in said indictment is barred by the statute of limitations, the same having been found more than two years after the moneys alleged to have been received by the defendant, and which he failed to pay over, came into his hands.” The indictment charged in apt language that the defendant had been duly elected and qualified as clerlr of the court of quarter sessions of the peace for the county of Schuylkill, and exercised the duties, powers, rights and privileges of said office from the first Monday of January, 1900, until January 5, 1903; and that he had by virtue of his office collected and received from applicants for license to sell liquor in said county fees amounting to the sum of $7,243.28 and upwards, for and in the name of and on account of the county of Schuylkill; and that F. J. Noonan, the treasurer of said county of Schuylkill, did on June 30, 1905, demand and require him, the said John T. Shoener, to pay over to him, the said treasurer, the said sum of money, and the said John T. Shoener did unlawfully fail to pay over the said sum unto the said treasurer when thereunto lawfully required, by said treasurer, he, the said F. J. Noonan, being the proper officer authorized to demand and receive the same.
    The indictment was drawn under the provisions of the 65th section of the Act of March 31, 1860, P. L. 382, which provides that: “ If any state, county, township or municipal officer .... shall convert to his own use, in any way whatsoever, or shall use, by way of investment in any kind of property or merchandise, any portion of the public money intrusted to him for collection, safe-keeping, transfer or disbursement, or shall prove a defaulter, or fail to pay over the same when thereunto legally required by the state, county or township treasurer, or other officer or person authorized to demand and receive the same, every such act shall be deemed and adjudged to be an embezzlement of so much of said money as shall be thus taken, converted, invested, used or unaccounted for, which is hereby declared a misdemeanor.” The present Chief Justice construed this section of the statute in Commonwealth v. Mentzer, 162 Pa. 646, and there said: “ The section clearly specifies four distinct and separate facts with reference to public money, which shall constitute the offense of embezzlement, to Avit, conversion to the officer’s own use, investment in property or merchandise, becoming a defaulter, or failing to pay over on proper demand. These are clearly enumerated in the disjunctive, and it is further declared ‘ that every such act ’ shall be deemed and adjudged an embezzlement. Each of these acts, therefore, though of very Aarying character and degree of moral turpitude, is of equal legal import, and by itself constitutes the full statutory offense.
    “ Prima facie, therefore, each of such acts charged is a separate crime, and where such is the fact no two can be charged in the same count. But .... where .... two or more of the enumerated acts are in truth only successive steps in one appropriation or embezzlement of the same money, it would be contrary to the fundamental principles of our criminal jurisprudence to hold that they had not merged and become but one offense.” This indictment charged the defendant with only one of the acts by the statute made a misdemeanor: the failure to pay over the money when thereunto legally required by the county treasurer, the proper officer authorized to demand and receive the same. This statute did not make it a misdemeanor for a county officer to fail to pay over public money as soon as he received it, nor as soon as it became his official duty to pay it over; under its provisions it is only after the official who has collected the money has been legally required to pay by the county treasurer or other proper officer or person authorized to demand and receive the same, that a failure, to make the payment becomes a misdemeanor. That a demand must be made before this offense can be committed; that the demand must be an actual one, and that no constructive demand will meet the requirements of this statute, has been definitely settled by the decision of the Supreme Court in Commonwealth v. Shoener, 212 Pa. 527. This indictment averred that the demand by the treasurer was made on June 30, 1905. If the other averments of the indictment were true the defendant was still civilly liable to the county for the money, and the treasurer had the lawful right to make the demand; bad the defendant then paid the money he would never, so far as the averments of this indictment are concerned, have been guilty of the offense with which he is now charged. It was only his failure to pay when the demand was made upon him that brought him within the operation of this statute; the right of the commonwealth to prosecute then arose, and from the date of the demand the statute of limitations began to run. The first specification of error is dismissed.
    The defendant raised in various forms the question as to when the statute of limitations, as to this offense, began to run, by his first, second, third and fourth written requests for instructions to the jury. These points presented but one question in different forms, and by them the court was requested to instruct the jury: that the Act of March 31,1876, P. L. 13, made it the official duty of the defendant to pay into the county treasury on the first Monday of each month during his term, and the first Monday of the month next after the expiration of his term, all fees received by him during the preceding month, and that the defendant was required by law to pay the $7,243.28 mentioned in the indictment into the county treasury on the first Monday of January, 1903; and if the jury found that he had failed to do so, “ the offense of failure to pay over under this indictment was then complete,” and it immediately became the duty of the county treasurer to demand payment of said money, and the commonwealth was bound to bring the indictment within two years from the time when the county treasurer could have so legally demanded payment of said money: that the failure of the treasurer to make that demand could not stop the running of. the statute of limitations, and that the indictment not having been found within two years, the verdict must be not guilty. The fourth point added “ That any agreement or stipulation entered into between the county of Schuylkill and the defendant for the purpose of legally determining the legal ownership of said money or any part thereof in a civil proceeding in the courts of the state did not arrest the running of the statute in favor of the defendant, but the statute became a bar to this indictment in two years after the first Monday of January, 1903, when defendant’s term of office expired and he failed to pay over.” The defendant was not indicted under the provisions of the act of 1876. It cannot be seriously contended that the act of 1876 repealed the 65th section of the act of March 31, 1860. The third section of the act first mentioned does, it is true, provide penalties for violation of some of its provisions, but it expressly provides that such penalties shall be “in addition to the other penalties for such offenses.” We must, for the reason so clearly stated by Mr. Justice Bkown in Commonwealth v. Shoener, 212 Pa. 527, hold that in order to complete and render liable to indictment the crime witli which this defendant stands charged, there must be an actual demand made upon him by a proper officer, and “ a failure to pay that which, at the time the demand is made, clearly belongs to the county making the demand.” The offense had no existence until after a lawful demand within the meaning of the statute was made, and from the date of that demand the statute of limitations began to run. Had the defendant produced evidence that some officer having authority to do so had, at a time when the defendant was legally liable to have such demand made upon him, actually demanded that the defendant pay the money to the county treasurer, -that evidence would have raised a question of fact as to the time when the first regular and lawful demand was made and the statute of limitations would begin to run from that date. No such evidence was offered. The question attempted to be raised by the fourth point was not involved in this case; the agreement referred to did not arrest the running of the statute of limitations after it had once commenced to run, but that agreement having been made before the defendant had received the money involved in this proceeding, he had the right from the moment he received it to hold it until the question of the ownership of the fees was determined by the final judgment of the Supreme Court, and it was not until after that final judicial determination that the county treasurer had any right to demand payment of the money. This was expressly ruled in Commonwealth v. Shoener, 212 Pa. 527.
    The fifth and sixth specifications of error may be properly considered together. The defendant interposed a special plea in bar, setting forth at length the record of the proceedings in the case of the Commonwealth v. John T. Shoener, No. 75, March Term, 1903, of the court of quarter sessions of the county of Schuylkill, and the review thereof by the Supreme Court of Pennsylvania, on appeal to No. 286, January Term, 1904, reported. 212 Pa. 527, and upon the record so pleaded prayed judgment of the court if he ought to be put further to answer the present indictment. The commonwealth demurred to the plea and the court sustained the demurrer, which ruling is the subject of the fifth specification of error. The defendant then entered a general plea of autrefois acquit and not guilty. The only evidence offered under the plea autrefois acquit was the same record which had been specially pleaded in bar, there being no dispute that the defendant was the person charged in the former indictment; and upon that issue the jury, under the instructions of the court, rendered a verdict in favor of the commonwealth. The instruction of the court directing the jury to find for the commonwealth on that issue is the subject of the sixth specification of error. On demurrer to a plea in bar the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled thereto. If the plea is former acquittal, the question whether the former acquittal was for the same offense depends upon the record pleaded, and not on the arguments or inferences deduced therefrom : Murphy v. Richards, 5 W. & S. 279 ; Heilces v. Commonwealth, 26 Pa. 513. The record pleaded in bar showed a prosecution for embezzlement commenced on January 3, 1903, an indictment found on November 14, 1903, containing thirteen counts, a trial which resulted in the acquittal of the defendant on the first, second, third, fifth, sixth, seventh, ninth, tenth, eleventh and thirteenth counts, and a verdict of guilty on the fourth, eighth and twelfth counts, a judgment of the court of quarter sessions upon the eighth and twelfth counts, and a reversal of that judgment, and discharge of the defendant from his recognizance by the Supreme Court. Upon the trial of the issue formed by the record pleaded in bar the burden was upon the commonwealth to prove that prior to the commencement of that prosecution a proper officer had made demand upon the defendant that he pay to the county treasurer money which, at the time the demand was made, it was the legal duty of the defendant to so pay, and that the defendant had failed to pay upon such demand. No evidence of a demand made after the finding of that former indictment -would, upon the trial thereof, have been admissible. In the present indictment it was necessary for the commonwealth to prove that there had been a demand made by the county treasurer on June 30, 1905, that the defendant pay, to said treasurer, money belonging to the county at that time in the bands of the defendant and which the treasurer at that time had the lawful right to require him to pay.
    The true test to ascertain whether the plea of autrefois acquit be a good bar is whether the evidence necessary to support the second indictment would have been sufficient to secure a legal conviction on the first: Commonwealth v. Tadrick, 1 Pa. Superior Ct. 555 ; Commonwealth v. Rockafellow, 3 Pa. Superior Ct. 588 ; Commonwealth v. Montross, 8 Pa. Superior Ct. 237 ; Commonwealth v. Hazlett, 14 Pa. Superior Ct. 352; s. C., 16 Pa. Superior Ct. 534; Hilands v. Commonwealth, 114 Pa. 372. The plea averred the offenses to have been the same, but the effect of this was to change the record, and the record must stand: Commonwealth v. Trimmer, 84 Pa. 65. There was no error in the judgment of the court upon the demurrer to the special plea in bar. The instruction of the court to the jury to find for the commonwealth upon the issue raised by the defendant’s plea of autrefois acquit might he sustained upon the same grounds alone, but as the facts, although absolutely undisputed, are somewhat involved it may be well to briefly state them. The defendant offered in evidence the record of the indictment and proceedings thereunder against him above referred to, and in immediate connection therewith the record of the case of the County of Schuylkill v. John T. Shoener, No. 61, January Term, 1902, of the court of common pleas of Schuylkill county; No. 6, January Term, 1903, of'the Supreme Court of Pennsylvania, and especially the agreement in the nature of the case stated between the county and Shoener, included in the latter record. These two records, taken together, establish all the facts considered by the Supreme Court in Commonwealth v. Shoener, 212 Pa. 527.
    The verdict of the jury at the former trial found the defendant not guilty upon ten counts of the indictment and guilty upon three counts.
    The verdict as to the counts upon which the defendant was acquitted established that he had not prior to that time converted the money to his own. use, or invested it in property of merchandise. These are offenses distinct from the mere failure to pay over on proper demand, and the acquittal as to them would not shield the defendant against the present prosecution: Commonwealth v. Mentzer, 162 Pa. 646. The three counts upon which the defendant was found guilty were the fourth, eighth and twelfth. The fourth count charged him with failure to pay over upon demand the moneys received by him as license fees on January 7,1901; the eighth count charged a like offense with regard to money received on January 6, 1902, and the twelfth count charged him with failure to pay on demand moneys received by him on January 5, 1903 ; the failure to pay over on demand the money received by the defendant for license fees in the month of December in each year of his term as shown by his report filed on the first Monday of January following, being laid in a separate count. The court of quarter sessions did not sentence the defendant upon the fourth count of the indictment, which charged the failure to pay over the fees received in January, 1901. The court did sentence the defendant on the eighth and twelfth counts, which respectively charged the failure to pay over on demand the fees included in his official reports for January, 1902, and January, 1903. That judgment was reversed by the Supreme Court, without a new venire (Commonwealth v. Shoener, 212 Pa. 527), for the reason that because of the then pending civil proceeding and the agreement in the case stated to which the county and the defendant were patties, the defendant had the right to retain all these license fees; that they did not become payable to the county and neither the county nor any of its officers had a right to demand that the defendant should pay them to the county treasurer, until after the question of the ownership of the fees had been determined by the Supreme Court, which final determination was not had until May 4,1903, in the decision reported in Schuylkill County v. Shoener, 205 Pa. 592. In reversing the judgment of this court and of the court of quarter sessions, the Supreme Court, who spoke by Mr. Justice Brown, in reference to the failure of the defendant to pay, said : “ In refusing to comply with the notice to pay, he was standing on his right not to do so until it was determined that the county was entitled to receive the money.”
    The record offered in evidence did not show an adjudication that the defendant had not received the money, nor that, having received it, he had paid it over. It did show an adjudication by the court of last resort that the defendant had the right to retain this money and could not legally be required to pay it over until May 4,1903. The agreement in the nature of a case stated, which was thus conclusively determined to vest in the defendant the right to retain these fees until the question of their ownership was determined by the Supreme Court, was made, executed and filed of record in the court of common pleas of Schuylkill county of November 21,.1901. The fees involved in the present indictment were not received by the defendant until after that date, a part of them within two months and the remaining portion over a year after the agreement had been filed of record. The agreement was in force at the time the defendant received the fees. There never was a time when a lawful demand could have been made upon the defendant to pay these fees, until after the question of their ownership was determined by the Supreme Court on May 4, 1903. This was distinctly held with regard to the twelfth count of the indictment in the former proceedings, which distinctly charged the receipt of the fees to have been in January, 1903, and which was supported by evidence that the money was actually received by the defendant in December, 1902, and that he acknowledged said receipt in his official return on the first Monday of January, 1903.
    The defendant had received the money in question by virtue of his office. When the question of its ownership was determined by the decision of the Supreme Court on May 4,1903, it became his duty to pay the money to the county treasurer, but his failure to pay it did not, under the provisions of the 65th section of the act of March 31, 1860, become criminal until after the county treasurer had made demand. When the treasurer did make such demand, the offense was complete. The instruction of the court below to the jury to render a verdict in favor of the commonwealth upon the issue raised by the plea of autrefois acquit was, under the records and evidence presented, correct: Solliday v. Commonwealth, 28 Pa. 13, and the cases hereinbefore cited. In this view of the case we do not deem it necessary to consider the question of the constitutionality of the Act of June 12, 1878, P. L. 196, section 6, nor ■whether the period of limitation of prosecutions in cases of this character is by that statute extended to four years. All the assignments of error are dismissed.
    June 27, 1906:
    The judgment is affirmed, and it is ordered that the defendant appear in the court of quarter sessions of Schuylkill county and by that court be committed until such part of the sentence as bad not been performed when this appeal , was made a supersedeas, be complied with.

      Error assigned was the judgment of the Superior Court.

      Wm. Wilhelm and James B. Reilly, with them Joseph W. Moyer, for appellant.

      Guy E. Farquhar and C. E. Berger, with them John F. Wharten and J. A. Reed, district attorney, for appellee.
   Opinion by

Mr. Justice Brown,

But little need be said in affirming this judgment. The learned and careful trial judge correctly disposed of the questions raised by the appellant, and, in doing.so, understood what was said in Commonwealth v. Shoener, 212 Pa. 527, just as Ave intended it should be understood. The same is true of the Superior Court, and to its clear opinion affirming the judgment below nothing can be profitably added.

In support of his plea of autrefois acquit, the appellant relies upon our reversal of the former judgment against him. The jury on the trial of the first indictment found him guilty of having failed to pay over the license fees in his hands after demand had been made upon him to do so. Our reversal of the judgment on that verdict did not acquit him of the offense charged against him in the present indictment. All that we decided was, that, as the county of Schuylkill could not, at the time the prosecution was instituted, have made a legal demand upon the appellant for the payment of the fees in his hands, the statutory offense of failing to pay over had not been committed. • He was discharged from his recognizance simply because the prosecution against him had been instituted before the offense charged against him was or could have been committed under the admitted facts in the case. He was, therefore, never in jeopardy. If, after his conviction, the court below had arrested judgment on the verdict, he would have been in the same situation in which our reversal of it placed him, but he could not have pleaded the arrest of the judgment as a bar to a new indictment against him for an offense subsequently committed, for he never was in peril. As to this the authorities are without number. Equally unavailing is the plea of the statute of limitations. It was admittedly the duty of the appellant to pay over the moneys in his hands, when he learned, on May 4, 1903, that they belonged to the county; but his failure to perform that duty was not a crime, and, as long as he retained the moneys without a demand from the county that he pay them over, he was not committing the statutory offense for which he was prosecuted in the present proceeding. Failure to pay over was not an offense; failure to pay over on demand was. The county, for any reason, might have indulged him, and, having done so, its indulgence, which kept him from committing crime, cannot, under the plea of the statute of limitations, be now turned into a shield by him to protect him from the consequences of his crime after his commission of it. When he was still legally liable to pay to the county the fees which he had collected, demand was made upon him to pay them over. When he failed to comply with that demand, he, for the first time, committed the offense charged against him in the present indictment, and from the time of his refusal to pay over, June' 30, 1905, and from that time only, could the statute of limitations begin to run.

The judgment of the Superior Court affirming that of the court of quarter sessions is affirmed.


author: Pee Curiam,

text:
    Commonwealth v. Combs, Appellant.

      Criminal law — Murder—Degree—Presumption—Charge of court.

    On the trial of an indictment for murder, the court charged as follows: “So when you come to measure it up, the question is, whether the degree of guilt here rises above second degree. There is no presumption at the start that it is higher than that, unless in this case from the circumstances, the use of a deadly weapon at a vital part, with the presumption that the party using it knew the consequences of his act, that he acted wilfully, deliberately and premeditatedly; if the evidence all shows wilful, deliberate and premeditated killing under those circumstances, with the intent to take life, then your verdict should be murder in the first degree. Otherwise, if there is a reasonable doubt as to that grade, it should be murder of the second degree.” Held, that the portion of the charge quoted could not be construed as an instruction to the jury that there was a presumption of murder of the first degree.

      Criminal law — Murder—Evidence. ■

    On the trial of an indictment for murder testimony was admitted to the effect that the prisoner had been arrested and convicted of disorderly conduct at the instance of the deceased. This was subsequently stricken put on the ground that the record of the conviction, which was the best evidence of it, had not been produced. The court in striking out the testimony said that there still remained, in the case considerable testimony as to the arrest of the prisoner at the instance of the deceased, from which the jury might determine that there was some ill feeling between them. Held, that the remark of the court was not error.
    Submitted May 21, 1906.
    Appeal, No. 93, Oct. T., 1906, by defendant, from judgment of O. & T. Allegheny Co., March T., 1905, No. 41, on verdict of guilty of murder of the first degree in the case of Commonwealth v. Cornelius Combs.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Brown, J.
    At the trial it appeared that the prisoner was indicted for the killing of Mary Elizabeth Dickerson by shooting her on February 8, 1905.
    The court charged in part as follows : ,
    [So, when you come to measure it up, the question is, whether the degree of guilt here rises above second degree, because it is clear that it is at least second degree. There is no presumption at the start that it is higher than that, unless in this ease from the circumstances, the use of a deadly weapon at a vital part, with the presumption that the party using it knew the consequences of his act, that he acted wilfully, deliberately and premeditatedly ; if the evidence all shows wilful, deliberate and premeditated killing under those circumstances, with the intent to take life, then your verdict should be murder of the first degree. Otherwise, if there is a reasonable doubt as to that grade, it should be murder of the second degree.] [1]
    June 27, 1906 :
    Verdict of guilty of murder of the first degree.

      Errors assigned were (1) above instruction, quoting it; (2, 3) rulings on evidence referred to in the opinion of the Supreme Court,

      Joseph F. Mayhugh and W. F. Petty, for appellant.

      Robert E. Stewart, district attorney, for appellee, filed no printed brief.
   Pee Curiam,

That portion of the charge which is the subject of the first assignment of error, whether standing alone or taken in' connection with the rest of it, cannot be construed as an instruction to the jury that there was a presumption of murder of the first degree in this case. They were instructed in another portion of the charge that, “ under the law of this state the presumption against the accused rises no higher than murder of the second degree, which results where there was no malicious intent to kill, but an attempt only to do great bodily harm. To establish murder of the first degree the burden of proof is upon the commonwealth ; that is, to raise the degree of guilt from second degree to the higher one of first degree, the burden of proof is upon the commonwealth.” The second point submitted by the defendant was : “ The degree of murder cannot rise higher than second degree, unless it was shown beyond a reasonable doubt that at the time of the homicide the defendant was possessed of that self-determining power which, in a sane mind, renders it fully conscious of the real nature of its own purpose, and capable of resisting wrong impulses.” This was affirmed. What the jury must have understood the learned trial judge as saying in the language complained of, was that, though the presumption at the start was that the degree of guilt was not higher than murder of the second degree, such presumption might be overcome from the very beginning of the commonwealth’s presentation of its case in the narration of the circumstances attending the commission of the crime; and this was correct.

The purpose of asking about the conviction of the prisoner of disorderly conduct before the mayor on the complaint of the deceased was to show ill feeling between them. The testimony was objected to apparently for the reason that the record of the conviction, which was the best evidence of it, had not been produced. The testimony as to the conviction was stricken out, with the remark by the court that there still remained in the case considerable testimony as to the arrest of the prisoner at the instance of Mrs. Dickerson, from which the jury might determine that there was some ill feeling between them. In this there was no error. The three assignments are dismissed.

The judgment is affirmed and the record remitted for the purpose of execution.