author: Mr. Justice Potter,

text:
    Morrow, Appellant, v. Highland Grove Traction Company.

      Deed — Plan of lots — Square—Park—Grove—Dedication.
    A sale oí lots according to a plan on ■which an open square is shown marked “Alliquippa Grove” colored in green, with serpentine paths through it, and an announcement to purchasers that the “grove” had been set apart as a public park, are sufficient to establish a dedication of the grove to public use as a public park. The fact that the word “grove” was used instead of the words “park” or “square” is immaterial. In such a case the lot owners have a standing to enjoin the use of the grove for any other than a public purpose, and they cannot be charged with laches because for a brief time they permitted it to be used for private purposes.
    Argued Nov. 12, 1907.
    Appeal, No. 164, Oct. T., 1907, by plaintiffs, from decree of C. P. No. 1, Allegheny Co., March Term, 1906, No. 356, dismissing bill in equity in case of George B. Morrow et al. v. Highland Grove Traction Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction.
    Before Brown, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Thomas Patterson, of Patterson, Sterrett & Acheson, with him I. L. Jones, for appellants.
    The plaintiffs show a complete and legal dedication of the land in controversy in this case, for public purposes: Ferguson’s App., 117 Pa. 426; McCall v. Davis, 56 Pa. 431; In re Opening of Pearl St., 111 Pa. 565; Com. v. Rush, 14 Pa. 186; Pittsburg v. Epping Carpenter Co., 194 Pa. 318; McKee v. Perchment, 69 Pa. 342; Trutt v. Spotts, 87 Pa. 339; Transue v. Sell, 105 Pa. 604; Parker v. Smith, 17 Mass. 413.
    A recorded plan may be conclusive evidence of an intention to dedicate, although there may be no formal words of dedication: Birmingham v. Anderson, 48 Pa. 253; Schenley v. Pittsburg, 104 Pa. 472; Hanson v. Eastman, 21 Minn. 509; Yates v. Judd, 18 Wis. 118.
    The word “ park ” written upon a block upon a map of city property indicates a public use; and conveyances made by the owners of the platted land, by reference to such map, may operate conclusively as a dedication of the block: Price v. Inhabitants of Plainfield, 40 N. J. L. 608; Maywood Co. v. Maywood, 118 Ill. 61 (6 N. E. Repr. 866); Doe v. Town of Attica, 7 Ind. 641.
    The rights of the public cannot be affected by a nonuser: Com. v. Moorehead, 118 Pa. 344; Com. v. McNaugher, 131 Pa. 55; Rowan v. Town of Portland, 8 B. Monroe, 232; Burbank v. Fay, 65 N. Y. 57; New Orleans v. U. S., 35 U. S. 662; Webb v. City of Demopolis, 95 Ala. 116 (13 So. Repr. 289); Witman v. Smeltzer, 16 Pa. Superior Ct. 285; Ermentrout v. Stitzel, 170 Pa. 540.

      T. C. Noble, for appellee.
    There was no sufficient dedication: Com. v. Royce, 152 Pa. 88; Seminary v. Washington Borough, 18 Pa. Superior Ct. 555; Gilkeson v. Thompson, 210 Pa. 355; Pittsburg Melting Co., Ltd., v. Reese, 118 Pa. 355; Stewart v. Huntindon Bank, 11 S. & R. 267; Johnston v. Elizabeth B. & L. Assn., 104 Pa. 394.
    No action lies for a public nuisance unless there be special damage to the plaintiff: Rhymer v. Fretz, 206 Pa. 230; Com. v. McDonald, 16 S. & R. 390; Com. v. Rush, 14 Pa. 186; Com. v. Alburger, 1 Wharton, 469; Com. v. Bowman, 3 Pa. 202; McCall v. Davis, 56 Pa. 431; Trutt v. Spotts, 87 Pa. 339; Transue v. Sell, 105 Pa. 604.
    Plaintiffs are guilty of laches: Lindeman v. Lindsey, 69 Pa. 93; Coward v. Llewellyn, 209 Pa. 582; Penna. R. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62; Hinnershitz v. United Traction Co., 206 Pa. 91; Heilman v. Lebanon Ry. Co., 175 Pa. 188; s. c., 180 Pa. 627; Messner v. Ry. Co., 13 Pa. Superior Ct. 429; Galliher v. Cadwell, 145 U. S. 368 (12 Sup. Ct. Repr. 873); Neely’s Appeal, 85 Pa. 38.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

It appears from the history of this case, that the plaintiffs are the owners of certain lots of ground, in' the Highland Grove Plan of lots in the eighth ward of the city of McKeesport. That they, or some of them at least, purchased lots from former owners of the ground by whom it had been laid out in a plan of several hundred building lots, and the plan of lots placed on record on August 9, ISIS, in the recorder’s office of Allegheny county. On said plan is an. open square marked “ Alliquippa Grove,” colored in green, with serpentine paths through it. In April, 1889, more than fifteen years after the plan was laid out and placed on record, and after a large number of lots had been sold, the remaining portion of the plan became vested in the Highland Land Company, Limited, and that concern, in March, 1893, proceeded to revise the plan, and changed the representation of the open square marked “ Alliquippa Grove ” to four large spaces shown as II, I, J and K, and changed also the arrangement of the lots, making certain rows to front on the open space, and laying out additional streets marked “ Park Way ” at each end of the open space.

The defendant, which is a street railway company, built in June, 1901, a car barn, sand shed and tracks upon portions of what had been, under the revised plan J and K, and which was originally part of the space known and marked as “ Alliquippa Grove.” The plaintiffs who had purchased lots at various times in both plans, filed this bill to enjoin the defendant company from interfering with the public use of said open square, and to obtain the removal of the obstructions placed thereon. The court below dismissed the bill upon the ground that there was not sufficient evidence of a dedication to public use, and because of laches on the part of plaintiffs. It appears from the testimony, that when the lots were sold it was represented that the ground marked “ Alliquippa Grove ” was set apart as a public park. It was so announced by the auctioneer at a public sale of the lots, and was so stated to various purchasers who bought at private sale, both before and after the title had been conveyed to the Highland Land Company. The management of the land company also, at one time, put a wire fence around the square to indicate it was a park, with stile openings at each corner of the square, and placed benches in it. The testimony was conflicting as to the extent of the use made of the ground by the public, but it was shown that it was frequently used for Sunday school, and other picnics, and also at times for religious meetings.

An inspection of the plan according to which the original sales of lots were made, clearly indicates to us that the ground marked i£ Alliquippa Grove ” ivas intended to be a public square. The other ground in the plan is divided into numbered lots, while this is not. Nor are the streets plotted as running through it, but instead, winding and curving walks lead to the streets, and the intervening spaces are colored green. The only fair inference which could be drawn by any intending purchaser who looked at this plan, would be that these winding walks, and colored spaces, were intended to indicate an open park, or breathing place, to be preserved for the use of purchasers of lots, and the public generally. Where the owner of real property lays out a town upon it, and divides the land into lots and .blocks, intersected by streets and alleys, and sells any of the lots with reference to such plan, ... he thereby dedicates the streets and alleys to the use of the public. . . . On the same principle, the owner will be held to have dedicated to the public use such pieces of land as are marked on the plat or map as squares, courts or parks. . . . Nor is the irrevocable character of the dedication affected by the fact that the property is not at once subjected to the uses designed:” 13 Cyc. L. & Pr. 158.

We do not attach any significance to the fact that the word “ grove ” is used on the plan, rather than the word “ park.” The intention of the owners to dedicate a breathing space, wrhen they prepared and recorded the plan, is manifest. It is common knowledge that a grove is the nucleus of a park or pleasure ground for the people. The Century Dictionary defines a grove as “ a group of trees of indefinite extent, but not large enough to constitute a forest; especially such a a group considered as furnishing shade for avenues and walks.” And the Standard Dictionary defines a park as ££ an open square or plaza, usually containing shade trees and seats.” In speaking of a park, the present chief justice said, in Laird v. Pittsburg, 205 Pa. 1 (p. 5): “ No doubt the idea of open air and space with the land kept in grass and trees, as if approximately in the state of nature, still inheres in the general understanding of the word, but it is no longer the dominating thought as it formerly was. . . . The trimming away of thickets and underbrush, the substitution of regular pathways paved and perhaps railed and artificially lighted, which would have been incongruous to our forefathers, now enter into the accepted idea of a park.” A natural grove, set apart and cared for as above indicated, becomes quickly, what to the common understanding is a park, which in a definition adopted by this court in Com. v. Hazen, 207 Pa. 52, is “ a piece of ground set apart and maintained for public use, and laid out in such a way as to afford pleasure to the eye as well as opportunity for open air recreation.” It is not necessary that the word park ” or public square bo stamped upon a plan of lots, in order to operate as a grant to the public. If the intention to dedicate to public use can be clearly discerned, whether from words to that effect, or from symbols, or from the position and relation of the open spaces upon the map or plan, it is sufficient, “ When, from the position and relations of any open space in the town, it is apparent that it was intended to be public property, or for the public use, the dedication of such space to the public, is as perfect as if the name or purpose were indicated by the written word; and, after the sale of lots, made under such dedication, it can neither be revoked nor limited in its extent, on the ground of a supposed excess of the dedication, beyond the requirements of the public. The proprietor will have lost all power over the subject, and the only power of the court, is to ascertain and establish the fact and extent of the dedication:” Rowan’s Ex’rs v. Portland, 8 B. Mon. (Ky.) 232.

And in the case of Pittsburg v. Epping-Carpenter Co., 194 Pa. 318, the trial judge said, in an opinion adopted by this court (p. 328): “ Property may be dedicated for public use by plans indicating that purpose. Such dedication becomes irrevocable when the interest of third persons is acquired by sale of lots or acceptance for the public by public use or municipal action. Acceptance by the public need not be immediate, but may be made when public necessity or convenience arises. As a corollary to this proposition it follows that it is not necessary that the public use the entire property dedicated. Any public use of part of the property, indicating a purpose to accept the gift, fixes the public right to the whole. When the public right has been acquired it cannot be lost by nonuser or by municipal action not expressly authorized by law. , Any occupation of the property inconsistent with the public right is a nuisance, and no length of time will legalize a public nuisance.”

The authorities seem to be uniform to the effect that the same principles apply to the dedication of public streets, and public squares or parks. In either case, the purpose may be gathered from the designation or marks given by the owner to the land, upon the map or plan. In Com. v. Connellsville Borough, 201 Pa. 154, we held that the words public square ” or “ public ground,” when used upon a plat of ground, established an unrestricted dedication to public use.

In the present case, the second or revised plan of lots adopted and recorded by the Highland Land Company, Limited, in 1894, is no less indicative of an intention to preserve the ground in question as a public square. The plan is not so ornamental, but the space is preserved and the arrangement of the adjoining lots is changed so as to front them upon it, and cross streets on each end are opened, and designated as “ Park Ways.” Surely, anyone buying lots under this plan would have the right to rely upon the intention plainly manifested to treat this ground as a public square. The very least that can be said of the recorded plans is that they were sufficient to put any intending purchaser upon notice that the ground in question had been dedicated to public use, and the testimony abundantly establishes the fact that any inquiry of the lot holders, such as complainants and others, would have shown that they purchased upon the faith of representations made to them at the time that the ground designated upon the plan as “ Alliquippa Grove” was to be preserved as a public park. The testimony is ample to sustain the claim that the owners of the ground, from the time the plan of lots was laid out, down. to 1903, always considered this ground in question as public ground. We see nothing in the permissive use of part of the ground for a few years by the German Turnverein which militates against this use. The right to give them any exclusive control, even for the purposes of public entertainment, was questionable, but such use was temporary and has long since been surrendered.

It is also contended that the complainants here cannot maintain their bill because the right to the use of the park is in the public, and, further, because they have been guilty of laches. But the principle contended lor here by the appellee, in both of these respects, was considered and decided adversely to the claim now made by it, in the late case of Garvey v. Refractories Co., 213 Pa. 177, where, in an ample opinion by our Brother Mestbezat, the right of an individual lot holder in a plan of lots to prevent the obstruction of a street is fully maintained. It is there also clearly pointed out that in such cases the law does not afford an adequate remedy, and the lot owner is entitled to a remedy in equity that will restore him to the enjoyment of his rights. It has long been settled that obstructions upon public highways or public ground are nuisances, and are of the class of cases in which the equitable remedy by injunction maybe sought: Hacke’s Appeal, 101 Pa. 245. In the present case we are unable to agree with the conclusion reached by the court below. We think the evidence from the face of the plans, and the declarations and continuous conduct of the owners of the ground in their dealings with purchasers of lots, all point unmistakably to the fact of dedication of the ground known and marked as “Alliquippa Grove” to public use, as an open square or park. We can see no justification whatever for the attempt on the part of the defendant company to seize and appropriate to its own use this property which belongs to the public.

The plaintiffs were entitled to the relief prayed for in the bill, and the defendant company should be required to remove its car barn, tracks and other property from the public ground.

The decree of the court below dismissing the plaintiffs’ bill is reversed and the bill is reinstated, and it is ordered that the record be remitted to the court below for further proceedings in accordance with this opinion.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Stevenson, Appellant, v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.

      Negligence — Railroads—Station—Slippery steps — Hand rail — Contributory negligence.

    In an action against a railroad company to recover damages for personal injuries sustained by falling on slippery steps descending to a railroad station, the plaintiff is not entitled to recover where the evidence shows that the defendant company had provided a hand rail along the steps for the convenience and safety of the public, that the plaintiff had at first used this hand rail, but because his glove had caught on some knobs or projections on the rail, he took the middle of the steps, although he knew of their slippery condition, and fell and was injured.
    Argued Nov. 12, 1907.
    Appeal, No. 179, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June Term, 1904, No. 134, on verdict for defendant in case of William E. Stevenson v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Macfarlane, J.
    At the trial the court gave binding instructions for defendant, charging in part as follows: The point that I think is a bar to the plaintiff’s case is this: He admits that when he reached the top of this stairway he saw that it was very icy; he recognized the danger, and on account of that danger took hold of the railing. The photographs in this case show a railing. According to the testimony it was up away from the step nine inches, the amount of projection of the cement wall. It was easily reached, and was put there for the purpose of protecting people from falling from the steps, and also a hand rail. The plaintiff recognized that and took hold of it. He gives no good excuse why he let go of it, why he did not continue to protect himself by that rail. He stepped to the middle and walked down until he was within four or five steps of the first landing when the very thing happened to him which he feared, and which he had every reason to expect. In that he was, to my mind, plainly guilty of negligence. The only excuse he gives was that he could not continue to hold the rail on account of the spikes which he said projected half an inch above the rail. They are shown on these various pictures, and shown to be far enough apart to take hold, but he does not say that there was anything dangerous about them, simply that they caught his glove; he does not say they prevented him from taking hold, or even taking hold of the grill work below the rail.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      David S. McCann, for appellant.

      William S. Dalzell, of Dalzell, Fisher & Hawkins, for appellee.
    January 6, 1908:
   Per Curiam,

The plaintiff, coming to the stairway leading to tho station, found a hand rail plainly intended for the convenience and safety of persons descending. He recognized the purpose and the usefulness of the rail by taking hold of it at first, but then, finding his glove caught in some projecting points or knobs on the rail, he let go of it and took the middle of the steps although he knew they were slippery with ice. Thus, to avoid what was, at most, an inconvenience, he voluntarily encountered a manifest danger. He thus took upon himself the risk.

Judgment affirmed.


text:
    Schneeweiss’s Estate.

      Will — Undue influence — Issue devisavit vel non — Evidence.
    An issue devisavit vel non on the ground of undue influence is properly refused where it appears that the will was in favor of the testator’s wife, and the contestant was a stepson, a beneficiary under a former will; that the stepson had given testator grounds for dislike; that the alleged acts of undue influence were supported only by the hostile testimony of the contestant and by hearsay evidence, and that such acts were contradicted by the testator’s widow and several witnesses, and that acts of intimidation by the wife against her husband, if they did exist, in no way influenced testator in the making of his will.
    Argued Nov. 6, 1907.
    Appeal, No. 133, Oct. T., 1907, by John Schneeweiss, from decree of O. C. Allegheny Co., May T., 1007, No. 156, sustaining appeal from register of wills in Estate of William Adolph Schneeweiss, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Appeal from register of wills.
    Hawkins, P. J., filed an opinion, which was, in part, as follows :
    This case involves a question of undue influence in the making of the will propounded here. John Snowwhite, the contestant, was the stepson of Mr. Schneeweiss claiming under a prior will. Mr. Schneeweiss had married his mother in 1869, when he was six months old, took him home and treated him as a son, and when John became able he assisted in the work of the farm. When, in 1903, Mrs. Schneeweiss died, and Mr. Schneeweiss had no known heirs, a will was drawn in John’s favor, but never signed. In the meantime John had married and was living in Mr. Schneeweiss’s house, but when he found that Mr. Schneeweiss had arranged a remarriage moved out of the house. The principal evidence adduced as showing undue influence consists of alleged declarations of Mr. Schneeweiss of intimidation by his wife by threats of personal violence. In illustration of this was Schneeweiss’s apprehension that his wife would find out he had become surety in $2,000 for a saloonkeeper, and, in fact, she afterward compelled the cancellation of the bond. But the main witnesses are John Snowwhite and his wife, whose hostility is apparent and whose evidence falls far short of the measure required by law. On the night of the wedding, when stones came crashing through a window, Mr. Schneeweiss looked out and said, that is John’s wedding present; and there is strong reason for the suspicion that John had a part in the circulation of unfounded stories affecting Mrs. Schneeweiss’s character. They are contradicted by several witnesses in material matters, and an analysis of their testimony does not inspire confidence. John’s denial that he was near the house on the night of the wedding is flatly contradicted by a disinterested witness. The statement that Mrs. Schneeweiss had, in a passion, hit her husband on the head with a club and knocked him down is mere hearsay. Mrs. Schneeweiss positively denies that any intimidation existed or that there was any reason for its existence. If intimidation did exist, as contestant avers, there is no evidence that it was used to influence Mr. Schneeweiss in making a will. Ilis wife knew nothing of the will in question, and the fact that Mr. Schneeweiss had wills drawn both before and after the one in question, in which John was a large beneficiary, negatives undue influence. If Mr. Schneeweiss made the declarations attributed to him at all, they meant nothing, for he had always been in the habit of complaining and finding fault without apparent reason. . . .
    The court therefore finds that the evidence adduced by contestant is not such as will justify submission to a jury, and the decision of the register must be reversed.

      Error assigned was decree refusing an issue.

      Wm. T. Tredway, for appellant.

      Henry A. Davis, for appellee.
    January 6, 1908:
   Per Curiam,

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


author: Mr. Justice Brown,

text:
    Laughlin v. Laughlin.

      Trust and trustees — Husband and wife — Wife’s property in husband’s name — Evidence—Laches.
    Where a wife claims as her own, securities standing in the name of her deceased husband, she cannot establish a trust in such securities for herself as against her husband’s creditors, unless she shows by clear and satisfactory evidence that when they were purchased by him, she had a separate estate, that it was used by him in purchasing them, and that he purchased them for her. In such a case witnesses for the wife may testify as to what the husband had stated to them as to his trusteeship for his wife, and what he actually did and wanted done in connection with his management of her estate.
    A wife cannot be charged with laches in delaying for eleven months to file a bill in equity to have a trust declared in her favor as to certain securities standing in her husband's name, but claimed to have been bought with her money, where it appears that such securities, with others standing in her own name, were in a box to which she had the key, and in this box was a statement in the handwriting of her husband headed “ List of stocks and notes'' of the wife, naming her, and naming himself as “ trustee of ” the wife, and it also appears that the wife was old, blind, had been bedridden for years, and was of frail mind.
    Argued Nov. 12, 1907.
    Appeals, Nos. 185 and 190, Oct. T., 1907, by W. C. Stewart and Margaret B. Laughlin, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1906, No. 102, on bill in equity in case of Margaret B. Laughlin v. H. M. Laughlin, Administrator, et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to declare a trust in securities.
    Before Miller, J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a decree declaring that certain stocks enumerated were the sole and separate property of the plaintiff, and directing the defendant administrator to execute proper assignments thereof to the plaintiff; and also adjudging that certain other shares were the property of the estate of P. B. Laughlin, and directing the plaintiff to deliver the certificates for such shares to the defendant.

      Error assigned, by William C. Stewart, was portion of the decree declaring a trust in favor of the plaintiff.

      Error assigned, by Margaret B. Laughlin, was the portion of the decree requiring her to deliver certain certificates to the defendant.

      R. H. Hawkins, of Dalzell, Fisher & Hawkins, for W. C. Stewart.
    Property of a husband is not to be covered up or withheld from creditors upon equivocal suspicions or doubtful evidence of a wife’s right to it: Rhinesmith’s Case, 25 Pa. Superior Ct. 300; Byers v. Ferner, 216 Pa. 233; Dice’s Estate, 180 Pa. 647; Dalley’s Est., 200 Pa. 140; Martin’s Est., 181 Pa. 378.
    All the stocks in controversy were bought by Mr. Laughlin and the certificates issued in his name more than five years before the bill was filed, except the crucible steel stock and the wool company stock. The trust was barred: Campbell v. Boggs, 48 Pa. 524; Fleming v. Culbert, 46 Pa. 498; Byers v. Ferner, 216 Pa. 233; McKendry v. McKendry, 131 Pa. 24.

      George B. Gordon, with him Wm. Watson Smith, for Margaret B. Laughlin.
    The ownership of the wife of the property, the existence of the trust, may be proved by any sort of competent evidence; it may be proved by the declarations of the husband: Wormley’s Estate, 137 Pa. 101; Byers v. Ferner, 216 Pa. 233; Harrisburg Bank v. Tyler, 3 W. & S. 373; Nichols v. Nichols, 149 Pa. 172; Lloyd v. Woods, 176 Pa. 63; Farrell v. Lloyd, 69 Pa. 239; DeRoy v. Richards, 8 Pa. Superior Ct. 119.
    The testimony as to Laughlin’s financial condition, the improbability, nay impossibility, of his buying the stock is very persuasive of the truth of our contention: Hamill’s Appeal, 88 Pa. 363; Wadlinger v. First Natl. Bank, 209 Pa. 197; Shattuck v. American Cement Co., 205 Pa. 197.
    January 6, 1908:
   Opinion by

Mr. Justice Brown,

This bill was filed by Margaret B. Laughlin, the widow of F. B. Laughlin, to have a trust declared in him for her at the time of his death in certain stocks, the certificates for which stood in his name. Some of them had been issued to him as trustee, without naming the cestui que trust. An answer was filed by his administrator, demanding proof of the allegations of the bill and refusing to assign and transfer the stocks to the complainant until her ownership of them was established. F. B. Laughlin died insolvent. W. O. Stewart, one of his creditors, was permitted to intervene as a defendant and filed an answer, averring that the certificates of stock claimed by the appellee were assets of her husband’s estate, primarily subject to the claims of creditors, including his own. Upon hearing there was a finding that F. B. Laughlin held at the time of his death, as trustee for his wife, 792 of the 852 shares of stock mentioned in the bill, and a decree was made directing H. M. Laughlin, his administrator, to assign them to her. From this Stewart has appealed, and from the refusal to award her the remaining 60 shares the complainant has appealed.

The ownership of the 792 shares of stock was a pure question of fact. To establish it as against the creditors of the insolvent estate of her husband the burden was upon the appellee to show by clear and satisfactory evidence that, when the the securities were purchased by him, she had a separate estate, that it was used by him in purchasing them and that he purchased them for her. The proof of her ownership was of the degree required by the law, and, under it, there could not have been a finding that the stocks awarded to her belonged to her husband. It was not only clear and satisfactory, but consistent, and the appellant offered nothing to impeach it. A recital of the evidence is not needed in this opinion. The facts are of interest only to the parties concerned in the controversy, and it is sufficient for us to say that, standing unchallenged -by any proof offered by the appellant, they made out a complete case for the appellee.

By his 7th, 14th, 15th and 16th assignments, the intervening defendant alleges error in admitting the testimony of S. M. McElroy and Samuel Bailey, Jr., as to alleged declarations by the decedent on the subject of his trusteeship for his wife. When the appellee sold her Penn avenue property in March, 1900, the vendee drew his check to her order for $90,500, which was the amount coming to her after the real estate agent’s commissions had been paid. This check, the proceeds of which were found by the court to have been used for the purchase of nearly all the stocks awarded to the appellee, was handed to F. B. Laughlin, her husband, and by him indorsed, “ M. B. Laughlin, F. B. Laughlin, Trustee,” and deposited to his credit as trustee in the Citizens’ E ational Bank of Pitts-burg on March 3, 1900. When he made the deposit he consulted with McElroy, the cashier of the bank, stating that he wanted to take care of this money for his wife. McElroy testified : “ Mr. Laughlin explained to me the transaction, the sale of the property, and explained further that he wanted to take care of this business for Mrs. Laughlin, and asked advice as to how that account should be opened. 1 told him the proper way to open it would be to put it in Margaret B. Laughlin’s name, he having a power of attorney to sign checks for her, or he could put it in the name of F. B. Laughlin, trustee, which would take it from any personal account, and it was not necessary to have a declaration of trust to be made for her for us, but I would advise one to be made outside. Whether he made one or not I do not know.” Among the stocks found to have been purchased for Mrs. Laughlin are 75 shares of the McGraw Wool Company. A few days before his death Laughlin spoke to Bailey, a director of that company, about this stock. Bailey’s testimony, the admission of which is also assigned as error, was : “ A few days preceding the death of Mr. Laughlin he spoke to me about the stock, and said he held it as trustee for his wife, and that he wanted the stock transferred and a new certificate issued direct to her, that it ought to have been that way in the first place. I told him that Mr. Bickel, the secretary and treasurer of the company, was out of the city, and wouldn’t return for a week. He said, There is no great hurry; I will give the certificate — have my son Harry bring the certificate to the office and have it transferred.’ That conversation took place in Mr. Laughlin’s room at the Hotel Kenmawr, on Sunday afternoon vffien I called on him.” It is urged that the testimony of these two witnesses ought not to have been received, because the declarations of the husband were not competent evidence to show that the fund which came into his hands from the sale of his wife’s real estate was in the nature of a trust to be administered by him for her. Mere loose declarations of a husband are not the proof required to establish a trust in him for his wife when his creditors contest it. In Gamber v. Gamber, 18 Pa. 363, on which the appellant seems to chiefly rely, it was said by Black, C. J.: Declarations of an insolvent husband cannot, under any circumstances, be evidence for the wife.” But it must be remembered that this was said at a time when a husband could not testify for his wife, and could not, therefore, indirectly become a witness for her by having his declarations in her favor repeated by those to whom he had made them. It was, therefore, with this in view that it was further said: “ The relation of husband and wife is so intimate, and the identity of their interests so absolute, that even the oath of one is not and ought not to be taken in favor of the other. A multo fortiori the naked declaration should be rejected.” What McElroy and Bailey testified to was not merely what Laughlin had stated to them, but what he actually did and wanted done in connection with his management of his wife’s estate, and their testimony was clearly admissible as proof of her present claim. For the refusal to receive proof of the declarations of a deceased husband that real estate belonged to his wife, in an action of ejectment brought by one claiming under her, we reversed in Nichols v. Nichols, 133 Pa. 438; and in Light v. Zeller, 144 Pa. 510, in a controversy between the wife and the sheriff’s vendee of property sold as her husband’s, the assignment of error was overruled which complained of the admission of the husband’s declaration that the property in controversy belonged to his wife.

The decedent did not get the purchase money of his wife’s property until March, 1900. lie died in August, 1905, and this proceeding was instituted July 13, 1906. One of the questions raised by the appellant is as to her laches. The eighth finding of fact is that at the time of Laughlin’s death, there were in a box, to which the appellee had the bey, all the certificates claimed by her in her bill of complaint, as well as a number of others standing in her name and not in controversy ; that with these certificates there was a statement in the handwriting of her husband, headed List of Stocks and Notes of M. B. Laughlin and F. B. Laughlin, Trustee of M. B. Laughlin,” with their value on April 1, 1901. With this admission of the trust by the husband, laches is not to be imputed to his wife, who filed her bill within less than a year from the time she became his widow. As to this feature of the case the court below very properly said : “ She is old, has been bedridden for years, is now blind, and of frail mind. She had a right to assume that her husband, as agent and trustee, was preserving her property in her name.”

The claim of the appellee to the 60 shares of Pittsburg Brewing Company stock was disallowed, because, in the opinion. of the court, she had failed to show that they had been paid for out of her separate estate. It was incumbent upon her, in this controversy with her husband’s creditor, to show that they had been so paid for before they could be declared to be hers, and we have not been persuaded that error was committed in holding that she had not brought to this item the measure of proof required. The assignments of error are all overruled. The decree is affirmed and each appeal dismissed with costs.


author: Mr. Justice Elkin,

text:
    Andel, Appellant, v. Duquesne Street Railway Company.

      Street railways — Extensions and branches — Parties — Injunction— Equity.

    Individual citizens who have no right, legal or otherwise, to the use and occupation of the streets and highways covered by the branches or extensions of a street railway company, have no standing to ask a court of equity to enjoin the railway company from asserting its rights to such use and occupation.
    Individual citizens have no standing in equity to question the validity of extensions and branches of a street railway company which were secured in the manner provided by statute. The only remedy is by a writ of quo warranto sued out by the state at the suggestion of the attorney general.
    Individuals who have filed articles of association in the office of the secretary of the commonwealth for the purpose of procuring a charter, but to whom letters patent have not as yet been issued, have no standing to file a bill in equity under the Act of June 19, 1871, P. L. 1360, to question the right of a street railway company to maintain extensions and branches which were secured in the manner provided by statute.
    Argued Nov. 12, 1907.
    Appeal, No. 186, Oct. T., 1907, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1907, No. 1,085, dismissing bill in equity in case of Coleman E. Andel et al. v. The Duquesne Street Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

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

      Error assigned was decree dismissing the bill.

      Arthur O. Fording, with him Johns McCleave and Warner Marshall, for appellants.

      Reed, Smith, Shaw & Beal, for appellee, were not heard.
    January 6, 1908:
   Opinion by

Mr. Justice Elkin,

The respondents demurred to the bill on two grounds, first, that the complainants have no right, individually or otherwise, to maintain the bill; and second, the court has no jurisdiction to grant the relief prayed for. Either ground would be a sufficient answer to the contention of appellants, and both are good under the facts of this case. The first, second and third prayers ask for an injunction, and the fourth for a decree annulling the extensions and vacating the record made by recording the certificate in.accordance with the provisions of law in the office for recording deeds in the county of Allegheny. It is an elementary principle that he who seeks equitable relief must establish a clear legal right to the enjoyment of that, the injury to whióh he seeks to enjoin. This burden ■ always rests on the complaining party.' Equity will not enjoin at the instance of one who has no legal right to the use, occupation or enjoyment of the property or thing about to be invaded. A complainant must stand on .the strength of his own rights rather than on the weakness of those claimed by a respondent. These familiar principles of equity practice furnish a complete answer to the first three prayers of the bill in the present case. The complainants havb no right, legal or otherwise, to the use and occupation of the streets and highways covered by the branches or extensions of the respondent, and, therefore, have no standing to ask a court of equity to enjoin it from asserting its right to such use and occupation. Indeed, it has been held that even where a street railway company has obtained a charter to construct its lines on certain streets, but failed to secure a municipal grant to use the same, it had no standing in equity to enjoin another company having secured not only a franchise from the state but authority to use the streets from the municipality: Larimer & L. Street Railway Co. v. Larimer Street Railway Co., 137 Pa. 533. The fourth prayer raises the question of the validity of the extensions and branches which were secured in the manner provided by statute, and it is perfectly clear complainants have no standing to ask a court of equity to make such a decree. The validity of a charter, the forfeiture of charter rights, which includes branches and extensions, can only be inquired into or declared on a writ of quo warranto sued out by the state at the suggestion of the attorney general: Western Pennsylvania Railroad Company’s Appeal, 104 Pa. 399; Windsor Glass Co. v. Carnegie Co., 204 Pa. 459; Thirteenth and Fifteenth Streets Passenger Railway Co. v. Broad Street Rapid Transit Street Railway Co., 219 Pa. 10.

Is there jurisdiction in equity to grant the relief prayed for in the bill. The answer must be in the negative. The averments of the bill are not sufficient to bring this proceeding within the purview of the act of 1871. On June 1,1906, the appellants filed in the office of the secretary of the commonwealth articles of association for the incorporation of the Kelly Street Railway Company and the Hay Street Railway Company. Notice by publication as required by statute was given to the effect that the subscribers would apply to the governor on June 26, 1906, for a charter. On June 20, 1906, the stockholders of the respondent company met pursuant to a call for that purpose, and under the provisions of law voted to extend its route by branches and extensions over part of the streets covered by the application of appellants. The resolutions authorizing the extensions and branches were filed in the office of the secretary of the commonwealth on J une 21, 1906 ; some weeks later they were presented to the governor for his approval, and on October 31, 1906, were approved by him. At a later date the secretary of the commonwealth issued a certificate of approval which was recorded in the proper office of Allegheny county on November 13, 1906. Prior to the approval of the extensions and branches the appellants, through counsel, appeared as protestants against their approval and were fully heard either by the governor acting in his official capacity, or by those who represented him. There were thus presented to the governor for his consideration and approval the articles of association entered into by appellants asking for a charter and a record of the proceedings by which the respondent company extended its route by branches and extensions. The parties were claiming conflicting rights and franchises. The governor approved the branches and extensions as having the prior right to the use of the streets and refused to issue- letters patent to the complainants. It is argued that appellants under the articles of association filed in the office of the secretary of the commonwealth had an inchoate right to construct and operate a street railway over its proposed route, and that this is such a right as should be protected by a court of equity. Ho authority is cited in support of this proposition and none can be. Such a doctrine has the novelty of being original in a court of equity. Inchoate rights, if such there can be under an application for a charter never obtained; franchises, never secured, or if secured, forfeited or abandoned; municipal grants, never made, or, if made, conditions precedent not performed, do not meet the burden resting on a complainant which requires that he first establish a clear legal right. When persons enter into articles of association for the formation of a company to operate a street railway their agreement is between themselves and the commonwealth is not a party to it. There is no privity of contract between the state and the proposed incorporators until letters patent are issued. The filing of the articles of association in the office of the secretary of the commonwealth is a preliminary step in securing a charter, but the powers, privileges and franchises sought to be obtained are not conferred until letters patent are secured. In the present case it should be observed that all parties acted within their legal rights. The respondent company only did what the law authorized it to do. If in securing the extensions and branches, the requirements of the statute put it in a position whereby these franchises could be secured at an earlier date than those which the complainants sought to obtain, the fault, if such it be, is in the law, and not in those who administer it. The complainants are not a corporation and do not enjoy any corporate franchises. How, then, can it be said that they are entitled to equitable relief under the act of 18712 The private rights of individuals referred to in. this act are rights of property of some character. The complainants do not allege that any property right vested in them, individually or collectively, has been, or is about to be, invaded. They do not possess any rights or franchises as a corporation and as such cannot be said to suifer any injury within the meaning of the law. It is clear, therefore, that they are not entitled to the relief provided in this act. The learned court below in a well-considered opinion has carefully discussed and decided the case upon its merits, and we fully concur in his conclusion.

Decree affirmed at cost of appellants.


text:
    Lovejoy, Appellant, v. Duquesne Street Railway Company.
    Argued Nov. 12, 1907.
    Appeal, No. 187, Oct. T., 1907, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1907, No. 1095, dismissing bill in equity in case of Francis T. F. Lovejoy et al. v. Duquesne Street Railway Company and the Bellefield Street Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    January 6, 1908:
   Opinion by

Mr. Justice Elkin,

For the reasons stated in an opinion handed down at No. 186, October Term, 1907, ante, p. 635, the decree entered by the learned court below is affirmed at the cost of appellants.


author: Mr. Justice Stewart,

text:
    Haertel, Appellant, v. Pennsylvania Light & Power Company.

      Negligence — Electric light and power company — Live wires — Death-Evidence — Nonsuit.
    While electric companies are bound to use the highest degree of care practicable to avoid injury to everyone who may be in lawful proximity to their wires, yet the ordinary person is held to know that danger attends contact with electric wires, and it is his duty to avoid them so far as he may. If one heedlessly brings himself in contact with such wire, and is injured in consequence, his imprudence must be regarded as a contributing cause, and will prevent a recovery.
    In an action against an electric light and power company to recover damages for death, where the only witness to the occurrence testifies that when he observed the deceased from the pavement below, the latter was upon the roof of a building holding by his left hand a wire which was stretched along the wall of an adjoining building and secured against it by brackets, the wire being about breast high from the level of the roof, and the evidence reflects no light as to how or under what circumstances the deceased came in such contact with the wire, a nonsuit is properly entered.
    Argued Nov. 12, 1907.
    Appeal, No. 188, Oct. T., 1907, by plaintiff, from, order of C. P. No. 3, Allegheny Co., May T., 1905, No. 126, refusing to take off nonsuit in case of Martha Haertel et al., by their Guardian, the Mercantile Trust Company of Pittsburg, v. Pennsylvania Light & Power Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s father.
    At the trial it appeared that on July 9, 1904, Theodore Haertel, a tin and slate roofing contractor, went upon the roof of a building which he was constructing and came in contact with an imperfectly insulated electric wire of the defendant company, and was instantly killed. The details of the accident are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      R. B. Petty, with him W. F. Petty, for appellants.
    — There was sufficient evidence of defendant’s negligence: Morgan v. Electric Co., 213 Pa. 151; Giraudi v. Electric Impr. Co., 107 Cal. 121; Devlin v. Beacon Light Co., 192 Pa. 188; Suburban Elec. Co. v. Nugent, 6 Amer. Elec. Cas. 238.
    The present case falls squarely within the rule twice laid down in the cases of Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540; s. c., 207 Pa. 118.
    The principle laid down in the following cases governs the present case, and makes the question of contributory negligence one for the jury: P. & R. R. R. Co. v. Hummell, 44 Pa. 375; Coolbroth v. Penna. R. R. Co., 209 Pa. 433; Cohen v. Phila. & Reading R. R. Co., 211 Pa. 227; Alexander v. Nanticoke Light Co., 209 Pa. 571; Emery v. Phila., 208 Pa. 492; Delahunt v. United T. & T. Co., 215 Pa. 241; McLaughlin v. Louisville Electric Light Co., 100 Ky. 173; Geismann v. Missouri Edison Electric Co., 173 Mo. 654; Ennis v. Gray, 87 Hun (N. Y.), 355; Daltry v. Electric Light, etc., Co., 208 Pa. 403; Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540; Griffin v. United Electric Light Co., 164 Mass. 492.

      J. Rodgers McCreery, with him Robbin B. Wolf, for appellee.
    There can be no inference of negligence from the mere fact of the injury: Borough of Easton v. Neff, 102 Pa. 474; Zahniser v. Penna. Torpedo Co., 190 Pa. 350.
    The nonsuit in this case is ruled by Smith v. East End Electric Light Co., 198 Pa. 19.
    Haertel may not have known that the wires were at that time carrying a current of dangerous intensity, but he was presumed to know that they were dangerous, and he could not wantonly, or thoughtlessly, place himself in a position of danger and be freed from responsibility for the consequences: Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540.
    It is a case of voluntary exposure to danger. That he may have been ignorant of the degree of the danger to which he exposed himself would not advantage him: Railroad Co. v. Norton, 24 Pa. 465; Thirteenth and Fifteenth St. Pass. Ry. Co. v. Boudrou, 92 Pa. 475.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

There can be no question as to what caused the death of Theodore Haertel, the father of plaintiff’s wards ; it resulted from contact with one of defendant company’s wires carrying a high voltage and imperfectly insulated. It may be conceded that the evidence for the plaintiff established a prima facie case of negligence on the part of defendant in allowing the wire to be in that condition. It may further be conceded that Haertel was rightfully where he was when the accident occurred. But because of the peculiar facts developed on the trial of the case, more than this was required to justify a submission of the case to the jury. The evidence showed that Haertel had gone upon the roof of a building to inspect the work his employees had done in connection therewith. The building adjoined a much larger and higher building to the rear. Along the wall of the latter building the defendant company had stretched its wires, supporting them by brackets fastened against or into the wall, and extending out from it about five or six inches. The wires to this extent overhung the roof on which Haertel stood. They were elevated above the roof at one side about five feet and at the other about seven. The only witness who saw the accident was about 100 feet away on the opposite side of the street below. He casually looked up, not attracted by anything in particular, and saw Haertel at the side of the roof next to the wall of the adjoining building along which the wires were stretched. When he saw him Haertel’s face was against the wall, and with his left hand, then smoking, he was holding one of the wires which was about breast high. At the same instant of time he saw Haertel lift his right hand and immediately fall down upon the roof. It was not attempted to be shown how Haertel came to be in that position, with his face against the wall and his hand holding the wire. There is nothing in the evidence to suggest that he encountered the wire as an obstruction, that it needed to be displaced in any way to admit of his making inspection of the roof, much less that it was required for his support in consequence of his being placed in sudden peril. The roof was a comparatively flat one, and at the side where he stood it was close against the wall, so that he was in no danger of falling. How he came in contact with the wire is pure speculation, with a strong implication from the circumstances that it was occasioned by his own imprudence. While electric companies are bound to use the highest degree of care practicable to avoid injury to everyone who may be in lawful proximity to their wires, yet the ordinary person is held to know that danger attends contact with electric wires, and it is his duty to avoid them so far as he may. If one heedlessly brings himself in contact with such a wire, and is injured in consequence, his imprudence must be regarded as a contributing cause, and will prevent a recovery. “ It is the duty of a plaintiff seeking to recover, when the gravamen of the action is the alleged negligence of the defendant, to show a case clear of contributory negligence on his part. In other words, he must establish a prima facie cause of action, resulting exclusively from the negligence and wrong of the defendant, before the latter need answer at all:” Waters v. Wing, 59 Pa. 211. It may be that the unfortunate man who here lost his life stood clear of contributory negligence, that his death resulted from something for which he was not responsible, not being under his control, but there was nothing shown in the case upon which such conclusion could rest, while on the other hand, the plain implication from the evidence was, that however negligent the defendant may have been, the other’s imprudence had contributed to the accident. The very evidence adduced in support of plaintiff’s right to recover, giving rise to an implication of negligence on part of the deceased, put an additional burden upon plaintiff which he failed to meet and discharge. There being no substantive testimony in the case upon which it would have been competent for the jury to find that deceased was not guilty of contributory negligence, the nonsuit was properly ordered.

Judgment affirmed.


text:
    McHugh, Appellant, v. Jones & Laughlin Steel Company.

      Negligence — Master and servant — Fellow servant — Mistake of judgment —Dynamite—Explosion.

    An employer who uses dynamite in his business is bound to furnish a competent and experienced man to superintend the handling and management of such dangerous explosive, but if he does so, he is not bound to supervise every detail of the judgment exercised by the competent person whom he has placed in charge of the work. If such person makes a mistake of judgment resulting in an explosion, and another employee is injured, the employer is not liable for such injuries.

      Negligence — Master and servant — Extension of liability of employer— Statutes — Act of June 10, 1907, P. L. 523.
    The Act of June 10, 1907, P. L. 523, extending and defining the liability of employers in certain cases is not retrospective, and has no application to a cause of action which had its inception prior to the passage of the act.
    Argued Nov. 13, 1907.
    Appeal, No. 196, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. Term, 1905, No. 415, on verdict for defendant in case of James P. McHugh v. Jones & Laughlin Steel Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to.recover damages for personal injuries.
    Before Kennedy, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Wm. A. Hudson, with him Joseph Howley, for appellant.
    The case was for the jury: Lee v. Woolsey, 109 Pa. 124.
    The act of June 10, 1907, is retrospective and applies to this case: Fisher v. Hestonville, Mantua, etc., Pass. Ry. Co., 185 Pa. 602; Cronrath v. Border, 27 Pa. Superior Ct. 15; Kille v. Reading Iron Works, 134 Pa. 225; Lane v. White, 140 Pa. 99; Endlich’s Interpretation of Statutes, sec. 273.

      William A. Challener, with him Clarence Burleigh and James C. Gray, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

The trial judge in this case gave binding instructions in favor of the defendant company. The negligence charged, was the employment of an inexperienced man, one John Noble, who was alleged to have been without training or experience in handling dynamite, and in blasting therewith. But the evidence entirely failed to make good the charge of incompetency in this respect. On the contrary, it appeared that Noble was a man of large experience in the handling of this particular explosive, and that during a period of twenty-five years in which he had been engaged from time to time in using dynamite for blasting, in a similar way, no accident had occurred.

He was, and for years had been, the person regularly employed by the company as a dynamiter, when the use of that explosive was occasionally necessary, in cleaning out the solid slag and refuse metal deposited in the bottom of the blast furnace, which solidifies there when the furnace is allowed to go out of blast. There is no question either, under the evidence, but that Noble was in charge of the work at the time of this accident. If there was any error in judgment, in placing the dynamite in the holes bored in the slag before it was sufficiency cool, that error was chargeable to Noble. Eor such an error of judgment upon his part, the defendant company could not, under the well-settled rules of the law of negligence, be held responsible. The employment which made necessary the use of explosives was in its very nature a dangerous one. The liability of dynamite to explode at the -wrong time and place, is a subject of the most common knowledge and observation, and the risk from that danger is always assumed by one who enters a service requiring the use of a high explosive. The defendant company was bound to furnish a competent and experienced man to superintend the handling and management of this dangerous element, but having done so, it was not bound to supervise every detail of the judgment exercised by the competent person whom it had placed in charge of that work. It is one of the frailties of human nature that repeated immunity from danger, is apt to dull the sense of caution. That may have been the. case here. The lamentable accident which caused the loss of the life of Noble, the skilled man in charge, and the severe injury to the plaintiff, may have been the result of undue confidence upon the part of Noble; but if so the fault was his own, and its consequences cannot be visited upon the defendant company. The accident which is the basis of this suit, happened upon September 30, 1904, and the trial of the case was finished and verdict entered for defendant on September 28, 1906. It is suggested that in case of a new trial, the Act of assembly of June 10, 1907, P. L. 523, extending and defining the liability of employers in certain cases, has some bearing on this case; but as that statute is not retrospective in its terms, it can have no application to the present cause of action, which had its inception more than two years before the passage of the act.

The judgment is affirmed.


text:
    Whitaker’s Estate.

      Will — Conditional will — Writing signed at the end thereof — Prohate.
    Testatrix died leaving to survive her a husband named Isaac and a daughter. Soon after her death there was found in her safe a large sealed envelope, marked on the outside, “To be opened by Ike if I do not come back.” This envelope contained a second sealed envelope marked “If I do not come back this is my will.” In this second envelope was found a testamentary paper dated some years before death of testatrix, signed by her, and attested by two witnesses. The indorsements on the outside of the envelopes were in the handwriting of the testatrix, as well as the body of the paper found in the envelope. No reference was made in the testamentary paper to the writings on the envelopes,. nor was there any reference to any proposed journey. About the time of the execution of the instrument testatrix made a trip to a distant state, and returned to her home about one month later. .Held, that the paper inclosed in the envelopes was properly admitted to probate.

      Argued Nov. 13, 1907.
    Appeal, No. 197, Oct. T., 1907, by Isaac R. Whitaker, from decree of O. C. Allegheny Co., May T., 1907, No. 187, dismissing appeal from register of wills in Estate of Matilda P. Whitaker, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from register of wills.
    Over, J., filed the following opinion :
    Matilda P. Whitaker died in the city of Pittsburg on March 1, 1907, leaving to survive her a husband, Isaac R. Whitaker, and one daughter, Sadie Douglas. Soon after her death there was found in her safe a large sealed envelope marked on the outside, “ To be opened by Ike if I do not come back.” This envelope contained a second sealed envelope marked, “ If I do not come back this is my will.” In this second envelope was found a testamentary paper, dated February 4, 1899, signed by the decedent, and attested by two witnesses. The indorsements on the outside of the envelopes were in the handwriting of the decedent, as well as the body of the paper found in the envelope. Ro reference was made in the testamentary paper to the writings on the envelopes, nor was there any reference to any proposed journey. About the time of the execution of said instrument Mrs. Whitaker made a trip to Florida, and returned to Pittsburg about one month later. This paper having been admitted to probate by the register as the last will of the decedent, Isaac R. Whitaker appealed therefrom, alleging either that the paper was a conditional will or that the publication thereof was conditional, and that it should not be admitted to probate.
    If the testamentary paper signed by Mrs. Whitaker had contained the sentence, “ If I do not come back this is my will,” indorsed on the envelope in which the paper was found, it would have been a conditional will, contingent upon her death on the journey she contemplated when the paper was executed, and as she returned from her journey it would be inoperative. There is nothing in the paper, however, indicating that the testamentary disposition made therein was contingent; no reference is made to the writing on the envelope in which the paper was found inclosed, and as the writing was not signed by her it cannot be treated as part of the will, nor as a codicil to it: Plumstead’s Appeal, 4 S. & R. 545; Jacoby’s Estate, 190 Pa. 382; Willing’s Estate, 212 Pa. 136. In Eorquer’s Estate, 216 Pa. 331, in an able and exhaustive opinion which was adopted by the Supreme Court, Judge G-albkaith held that “ Unless it appears from the will itself that it was not to operate in a certain event it will be entitled to probate,” and that “ The character of a will as being contingent or not contingent in its operation depends on the intention of the testator as expressed in the will itself, without the aid of extrinsic evidence in the form of subsequent declarations made by the testator in an incidental way as to the disposition of his property.” Then, as here, there is no condition expressed nor implied in the paper; if there is sufficient evidence of its execution and publication it should be probated. Its execution is proven as required by the statute, and is not questioned.
    The paper is testamentary in substance, was signed by the decedent, attested by two witnesses at her request, and although she did not declare it to be her will to them, yet the presumption is that she published it as such. But it is contended by appellants that the writing on the envelope shows that its publication was conditional, and the condition not being fulfilled, there was no publication. The execution and publication, however, was of the paper itself as a will, and not of the writing on the envelope as a part of it, and was complete and perfect. The writing did not refer to the publication, which is not affected by it, and is only a declaration made after the execution of the paper of her intention that the will should be conditional; but as this intention was not expressed in a writing signed by her, it could not revoke or annul the unconditional testamentary disposition in the paper, and the decision of the register admitting it to probate must be affirmed and the appeal dismissed.

      Error assigned was decree dismissing the appeal.

      J. S. Ferguson, with him E. G. Ferguson, for appellant.

      Lawrence P. Monahan, for appellee.

      January 6, 1908:
   Per Curiam,

The decree is affirmed by a majority of the court on the opinion of the learned judge below.


text:
    Volk v. Eaton, Appellant.

      Deeds — Recital—Mortgage—Notice—Purchase money mortgage.

    A recital in a deed stating that the deed is subject to a mortgage from a party named with interest from a certain date, is not such notice as will cause a purchaser from the grantee to take the property subject to an alleged purchase money mortgage, not recorded within the statutory period, and dated subsequent to the date from which the mortgage recited bore interest, if it appears that a recorded mortgage is found on the same property, made by the party named, and dated on the day from which the mortgage recited bore interest.
    Argued Nov. 13, 1907.
    Appeal, No. 198, Oct. T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. Term, 1900, No. 334, on verdict for plaintiff in case of Bernard Volk, Jr., now for use of Frank C. Hough, v. John Eaton, Executor of S. L. Johnson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Scire facias sur mortgage.
    Before Young, J.
    At the trial by agreement of counsel, the verdict for plaintiff was taken subject to question of law reserved. After argument judgment was entered on the verdict.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment on the verdict.

      F. W. Jarvis, with him Homer Z. Castle, for appellant,
    cited: Sailor v. Hertzog, 4 Wharton, 259; Dunning v. Reese, 4 Kulp, 168; Good v. Bausman, 6 W. N. C. 93.

      William H. McClung, with him Thomas D. Chantler, for appellee,
    cited: Stroud v. Lockart, 4 Dallas, 153; Jennings v. Bloomfield, 199 Pa. 638; Brolasky v. Furey, 6 W. N. C. 221; Rigler v. Cloud, 14 Pa. 361; Ingles v. Ingles, 150 Pa. 397.
    January 6, 1908:
   Opinion by

Mr. Justice Elkin,

The facts in this case are not in dispute and ho oral testimony was taken at the trial. Hence the rights of the parties must be determined by the facts as they appear in the recprd. The deed from Butterfield to Morozowics, while dated December 13, 1898, was not acknowledged until December 20, 1898, and was recorded March 9, 1899. This deed contained the following recital: “ Subject, however, to $594 of a certain mortgage given by Frank Butterfield with its interest from July 13, 1898.” The Butterfield mortgage to which this recital clearly refers was recorded August 18, 1898, and therefore gave record notice of its lien to subsequent purchasers. It was a purchase money mortgage, covering lots 193 to 228, inclusive, and 237 to 262, inclusive, in the south "Wilmerding plan of lots. The mortgage record shows that on December 19, 1898, lots from 247 to 262, inclusive, were released from this lien. The deed from Butterfield to Morozowics only conveyed lots 249 to 257, inclusive, but, all of these lots were included in the release of the lots 247 to 262, inclusive. The learned court below fell into error in saying : “ The title to all lots covered by the mortgage subsequently became vested in Johnson, who now appears and defends this action.” It clearly appears from the record that Johnson did not hold title to all the lots covered by the mortgage, that he did not take title to any lots through Dumbleton, and so far as we can see the reference to Dumbleton has no bearing in the case, and certainly cannot affect the rights of Johnson. It is true the deed from Butterfield to Morozowics bears date December 13, 1898, which was prior to the release of the mortgage, but it was not acknowledged until December 20, 1898, the day after which the release was made, and the presumption is that it was not delivered certainly until after its acknowledgment and perhaps until the date of its record. It seems clear, therefore, that in the absence of testimony showing anything to the contrary, the rights of the parties must be determined as of the date when the deed was delivered. At that time the records show that lots 249 to 257 were released from the lien of the mortgage to which reference was made in the recital. In other words, during the time between the preparation and date of the deed and its acknowledgment and delivery to the purchaser the lien of the mortgage had been released. Ordinarily, this would be the end of the case, because the mortgage in suit is dated November 4, 1898, was not recorded within the statutory period, or at the time Morozowics took title and was for a different amount than that mentioned in the recital of his deed. It is urged that there were sufficient facts in the case to affect the purchaser with constructive notice of the unrecorded mortgage, being the one now in suit. The general rule is that where a purchaser holds under a conveyance, and is obliged to make out his title through that deed, or through a series of prior deeds, he is charged with constructive notice of every matter connected with or affecting his title, which appears by description of parties, by recital, by reference, or otherwise, on the face of any deed, or upon any public record, which forms an essential link in the chain of instruments through which he takes title or liens which affect the same: Pomeroy’s Equity Jurisprudence (3d ed.), sec. 626. This rule is recognized by the text-writers and supported by the decisions of the courts. Jennings v. Bloomfield, 199 Pa. 638 is relied on by the court below as authority for the position taken that under the facts of the present case there was notice sufficient to put Morozowics and Dumbleton on inquiry which would have resulted in knowledge of the existence of the unrecorded mortgage on which the scire facias has been issued in this case. The recital in the deed from Butterfield to Dumbleton is referred to by the learned court as affecting the question of notice. As we have hereinbefore stated, there is nothing in this record to require Morozowics or his grantee to take notice of a recital in a deed conveying other lots to a different purchaser and in no way connected with his chain of title. After a careful examination of the whole case it is our opinion that nothing contained in the recital of the deed to Morozowics, or in his chain of title, or in the mortgage record, or any other matter, is sufficient to put the purchaser on inquiry as to an unrecorded mortgage, of which he had no knowledge. Jennings v. Bloomfield above cited, is not authority for any different rule. That case only decided that a purchaser of land having notice of a prior unrecorded deed, will not be permitted to set up his title against the prior conveyance, also that a recital in a deed is notice to a purchaser of the fact recited, and if the recital refers to “ an oil lease ” the vendee is held to have notice of the prior grant of the oil in the lease to which reference is. thus made. Of course this is true. A purchaser is bound to take notice of all the recitals in his chain of title and is bound by such notice as those recitals give him. In the present case the purchaser did take notice of the recital in his deed and found that it subjected the lots purchased by him to the lien of a mortgage of record, bearing a certain date, and when he turned to the record he found a release of the lien of that mortgage on the lots conveyed to him. We see nothing in this record that required him to go further.

Judgment reversed and record remitted to the court below for the entry of judgment in accordance with this opinion.


text:
    Allshouse v. Kelly, Appellant.

      Will — Probate—Undue influence — Devisavit vel non.

    The mere fact, without more, that a testator gave the greater part of his estate to a woman with whom he had sustained illicit relations, and by whom he had a child bom after his death, does nqt of itself furnish sufficient evidence of coercion or restraint in connection with the making of the will.
    Where evidence has been offered showing some moral or physical constraint operating on the mind of the testator at the time the will was made, such circumstances as those above referred to may properly be considered in an issue of this kind; but to allow a jury from such circumstances alone to defeat a disposition a testator has made of his property, would be in open disregard of the unquestioned right which everyone master of himself has to give his property to whom he pleases.
    Argued Nov. 13, 1907.
    Appeal, No. 204, Oct. T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1907, No. 122, on verdict for plaintiffs in case of George D. Allshouse, Jr., et al. v. Catherine Davis Kelly.

      Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Issue devisavit vel non.
    Before Shafer, J.
    The opinion of the Supreme Court states the facts.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiffs. Defendant appealed.

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

      Albert York, Smith, for appellant.
    Undue influence, however used, must, in order to avoid a will, destroy the free agency of the testator at the time and in the very act of making the testament: Englert v. Englert, 198 Pa. 326; Trost v. Dingler, 118 Pa. 259; Thompson v. Kyner, 65 Pa. 368; Eckert v. Flowry, 43 Pa. 46; McMahon v. Ryan, 20 Pa. 329; Tawney v. Long, 76 Pa. 106; Robinson v. Robinson, 203 Pa. 400.

      R. A. Balph, with him James Balph, for appellees.
    — The case of Dean v. Negley, 41 Pa. 312, is in its facts exactly like the case at bar, except that the case here has additional facts, tending to show undue influence.
    See also Main et al. v. Ryder, 84 Pa. 217; Johnson’s Est., 159 Pa. 630; Herster v. Herster, 116 Pa. 612; Wilson v. Mitchell, 101 Pa. 495; Miller’s App., 179 Pa. 645; Reichenbach v. Ruddach, 127 Pa. 564.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

There was but a single question in this case, — was the paper purporting to be the will of George Allshouse the product of an undue constraining influence exerted upon the testator’s mind at the time of its execution, or was it the expression of his own individual wishes in regard to the disposition of his property % The paper was written by the testator himself, and executed at the office of a magistrate, a personal friend, in the presence of two subscribing witnesses, neither of whom is a beneficiary thereunder, and neither of whom is shown to have had any relation whatever with any of the parties interested. It was a substitute for a will which made like distribution, and which the testator had written and exhibited to his friend, the magistrate, a week or ten days before, differing only from the one contested in form of expression. The suggestion of undue influence in connection with the making of the will springs from the fact that the principal beneficiary, the defendant in the issue, is a woman with whom the testator, for several years before his death, sustained illicit relations, the fruit of which was a child born to the woman after the testator’s death. The testator had been divorced from his wife some two years before the making of the will, and was living apart from her, and apart from the four sons, who had been born to them in wedlock, all of whom had arrived at manhood. Under the will, legacies small in amount were given the sons, and the entire remainder of the estate was given the paramour. While it is entirely natural that circumstances such as we have here, should excite suspicion in a way to lead to inquiry and investigation, yet of themselves they furnish no sufficient evidence of coercion or constraint in connection with the making of the will: Rudy v. Ulrich, 69 Pa. 177. Where evidence has been offered showing some moral or physical constraint operating on the mind of the testator at the time the will was made, such circumstances as those above referred to may properly be considered in an issue of this kind; but to allow a jury from such circumstances alone to defeat a disposition a testator has made of his property, would be in open disregard of the unquestioned right which everyone master of himself has to give his property to whom he pleases. So far as appears, this testator, in making his will, was interfered with by no one, even to the extent of a request that he would make a will; none of the beneficiaries were present at the execution of the will; it was executed where the testator was free from all physical restraint, and it is not shown that the defendant had any knowledge of the existence of the will until after the testator’s death. Whatever may be said in condemnation of the relation sustained by the testator to the defendant on the ground of its immorality, and the likelihood of such relation resulting in family estrangement, with impairment of individual character, none of these things of themselves can operate to defeat a will giving to the partner in guilt a share of the estate, be it large or small, where the testator at the time of making the will was master of himself. There is not a particle of evidence in this case to warrant an inference that the testator was in any degree subjected to the will or power of another in the act of disposing of his estate. The case called for a summary disposition by an affirmance of defendant’s first point, which asked the court to say that under the testimony the verdict should be for the defendant.

Judgment reversed.


author: Lewis, J.

text:
    Foster versus Gray.
    1. A., having an equitable title to a lot of ground, agreed to sell it to G., it being stipulated that the purchase-money was to be paid either to the owner of the legal title, or to A. himself. At the time of thiS’Sale, a judgment existed against A. On a precipe, in 1821, for a f.fa. on this judgment, was written an agreement by counsel that the administrators of A. be substituted. The lot was levied on and sold at sheriff's sale, and purchased by G. The writ was returned sold to G., but in a subsequent return, it was stated that G. “ refusing to pay, therefore unsold for want of bidders.” A deed, however, was subsequently made by the sheriff to G., acknowledging the receipt of the amount of the bid as the consideration of the deed, but without a separate receipt on the deed for the same. Afterwards an ejectment was brought by the owner of the legal title against the purchaser and the said administrators, and a conditional verdict was rendered for the plaintiff, to be released on payment of the amount; when a release was to be executed by the devisee of the legal title. The amount of the verdict, exceeding the amount of the bid at the sheriff's sale, was paid by G. and the release obtained:
    It was Held, that after the lapse of nearly thirty years from the sale, it was too late for the heirs of A. to object that the administrators had not been formally substituted through a scire facias.

    2. Though the sheriff after returning a sale, returned the property unsold on account of refusal to pay: Held, that his deed to the purchaser acknowledged within less than a year afterwards, stating the payment of the consideration, being the amount of the bid, but not having a separate receipt for the amount of the same, was prim& fade evidence of the payment of the purchase-money and of a valid title to the lot.
    3. The Act of 14th March, 1846, permitting certified copies of sheriffs’ deeds previously recorded, to be given in evidence in all eases where the original deeds would be evidence, is constitutional.

      4. An ejectment by the heirs of A., the former owner of the equitable title, having been brought against G., the purchaser, nearly thirty years after the sheriff's sale, and more than twenty years after the conditional verdict, and above nineteen years after the release of the legal title, it was held that the plaintiffs were not entitled to recover.
    5. Evidence that the widow of the owner of the equitable title,'urged her attorney to collect the purchase-money from the purchaser of the property, but that it was neglected, was not evidence in the case.
    Error to the District Court of Allegheny county:

    This was an ejectment by Samuel Poster and wife and others v. James Gray, for a lot of ground in Bayardstown, Allegheny county; extending from Penn street to the Allegheny river, adjoining M’Kelvy and others, containing about two acres.
    The plaintiffs claimed as heirs of John McGregory.
    It appeared that John McGregory, at one time, had an equitable title to the premises, he having entered into an article of agreement with George Wallace, the former owner, for the purchase of the property. Whilst thus holding the equitable title, the purchase-money being unpaid, a judgment was confessed by McGregory and others in favor of William Moreland—viz. on the 16th January, 1813, for $2000. Sci. fa. to April T., 1815. On 15th April, 1815, judgment, which, on 26th May, 1815, was liquidated by the Prothonotary, according to agreement of attorneys, at $3003.13.
    Articles of agreement, dated 28th July, 1815, were executed by McGregory, in which he stated that he had sold to James Gray, 260 feet deep on the river end of his lots, &c., &c., and that he had given Gray possession of the same ; and it proceeded, “he is to pay me, or George Wallace, at the rate of $1000 per acre for what are contained within the said boundary of 128 by 260 feet,” and it was declared that the deed was to be made as soon as he was prepared; at which time the money was to be paid to said Wallace or him. Signed John McGregory. [l. s.]
    On this agreement was a receipt on 23d August, 1815, for $30.
    On the judgment of Moreland v. McGregory and others, a precipe for a fi. fa. was dated 28th May, 1821. On this precipe was entered, It is agreed that James Kelly and Margaret McGregory, administrators of John McGregory, be substituted. It was signed by counsel.
    The fi. fa. was issued, and under it the premises in question were levied on and they were condemned,—the valuation being made at $1000.
    A vend. exp. issued to November T., 1821, which was returned “Nov. 23, sold to James Gray for $1001.” Signed by the sheriff. It was added: Gray refusing to pay, therefore unsold for want of bidders. Signed by the sheriff, but without date.

      On part of the defendant, was then offered the record of a deed for the premises, by the sheriff to James Gray, the said purchaser. It was recorded in the recorder’s office, in Book L. 2.
    It was acknowledged on 7th Nov., 1822, in open court. This deed was objected to, 1. That there was no return to authorize the sheriff to make a deed; 2. That there was no authority for recording a sheriff’s deed at that time.
    The consideration was stated in the deed to be $1001. There was no receipt on the deed for the purchase-money, and a blank was left in it for the date. The deed was admitted. This was the first bill of exceptions.
    On the part of the defendant was then given in evidence, the record of an ejectment by George Wallace, the holder of the legal title, against James Gray, the administrator of McGregory’s estate, and others. Afterwards, the executors of Wallace, the plaintiff, were substituted. On 11th April, 1831, verdict was rendered for plaintiffs—to be released on payment of $1330.84 and costs; one-half in thirty days, the other half in one year; and when paid Jane Wallace, the devisee, to execute a release to James Gray, without personal responsibility. 22d April, 1831, judgment.
    On 6th April, 1832, satisfaction entered by plaintiff’s attorney, release delivered. In the release was recited that Wallace had conveyed to the heirs of. McGregory in 1821—the ejectment vs. Gray and others, and the payment by Gray of the $1330 in pursuance of the verdict.
    The administration bond, dated 23d Nov., 1815, on the estate of McGregory, was given in evidence. No inventory of the estate was filed, and no administration account upon it.
    It was testified that McGregory was to pay Wallace $500 per acre—that he first purchased 90 feet in front, and afterwards 30 feet more.
    On the part of defendants, it was offered to prove that Mrs. McGregory frequently urged her attorney to collect the money from Gray, but that he did not attend to the matter. Rejected, on the ground that Gray was not bound, by the terms of his agreement with McGregory, to pay the money until he received the deed; and that he could not be affected by the transactions between Mrs. McGregory and her attorney. Second hill.

    On the part of the plaintiffs, the Court were requested to charge the jury: 1. That the deed of the sheriff to Gray confers no title upon him. 2. That under the circumstances in evidence Gray was bound to prove actual payment of the purchase-money. 3. That Gray was a trustee for McGregory and his estate of the purchase-money under the article of agreement. 4. That he only bought the equitable right of McGregory at sheriff’s sale, and the presumption is that if he paid any money on the sheriff’s sale, it was the money in his hands of McGregory’s. 5. That under the evidence it is a question of fact for the jury, whether Gray is a trustee of McGregory and his estate. 6. That if Gray claims by possession, he must show a continuous, notorious, uninterrupted, and adverse possession. 7. The question whether Gray got the sheriff’s deed fairly, and if it was delivered by Neville to him, is a question of fact for the jury.
    Hepburn, J., observed to the jury that on the part of the plaintiffs, it was alleged that the consideration of the deed never was paid; but he charged that the deed having been delivered by the sheriff, it passed the title of McGregory to the vendee, and the sheriff became liable to the judgment-creditor for the purchase-money. That if the deed is contradicted by the record, the deed was to prevail, as it was the act of the sheriff, and rendered him liable for the money. That the deed conveyed to Gray the equitable title of McGregory under the article of the latter with Wallace, and that Gray had a right to perfect that title.
    He further charged that Gray did not become, by the purchase, a trustee for McGregory or his heirs. The judgment on which the property was sold was not connected with the purchase-money due to Wallace, and Gray could not have paid off this judgment with the money due McGregory, in his hands, for the legal title was in Wallace, to whom the purchase-money from McGregory was yet due; and without paying both judgment and purchase-money, Gray could not have obtained a clear title even to his own portion of the lot. But when Wallace brought ejectment to enforce the payment of his purchase-money, then Gray was compelled to pay him the money due to McGregory in his hands, and which, by the articles of agreement between them, he had a right to do; and it is very clear that the judgment against McGregory prevented Gray from paying his money at an earlier day, either to McGregory, the judgment-creditor, or Wallace.
    By the deed from the sheriff, then, Gray became the owner of McGregory’s equitable title in the remaining portion of the lot; and by release from the devisee of Wallace, the legal title was vested in him alone. Thus his title to the entire property was perfected, and the defendants are entitled to your verdict.
    There is nothing in the plaintiffs’ points to defeat the defendants’ title, and no more specific answer seems to be necessary.
    To this charge plaintiffs’ counsel excepted.
    In the Act of 14th March, 1846, it is enacted: All patents granted by the Commonwealth, and all deeds of sheriffs, coroners, marshalls, and treasurers, and all deeds made in pursuance of a decree of any Court, being duly acknowledged, may be recorded in the office for recording deeds in the county where the lands lie; and the records thereof, or duly certified copies thereof, shall be evidence in all cases where the original deeds or patents would he evidence; and where any of the deeds aforesaid have heretofore been recorded in the office for recording deeds in the county where the lands lie, or in the office of the prothonotaries of the several Courts of the city and county of Philadelphia, the records thereof or duly certified copies thereof, shall be as good evidence as if the same had been recorded under the provisions of this Act.
    The assignments of error were: 1. To the rejection of the evidence stated in the first and second bills of exceptions; 2, 3, 4, 5, 6, 7, to the answer to the points; 8. In stating that the plaintiff was liable for the payment of the purchase-money bid by Gray; 9. In declaring that Gray’s purchase was unconnected with the sheriff’s sale, and that he could not pay the money he owed McGregory upon the sheriff’s sale; 10. In saying that by the release from Wallace’s devisee, Gray got the legal title ; 11. In saying that the defendants were entitled to the verdict, thus taking the facts from the jury entirely. It was alleged that the plaintiffs were entitled to the purchase-money unpaid on the part of Gray, if to nothing else.

      Dunlop, for the plaintiffs in error.
    It was, inter alia, alleged that there was no legal substitution of the administrators. The substitution should be to the action. But there was no actual substitution, but only an agreement for substitution. The heirs, and not the administrators, should have been substituted. It was said that McGregory died in 1815, and that there was no judgment against his estate.

    The record of a sheriff’s deed in the recorder’s office, was not evidence of the deed, as such deeds were not then within the recording acts: 1 Dallas 68; 6 Watts 298; 7 W. & Ser. 405; 16 Ser. & R. 297-299. It was contended that the record of the deed was not made evidence by the Act of 14th March, 1846, Dunlop 1061, because the record was a nullity—the original deed was not accounted for—the deeds recorded under it are to be duly acknowledged: 7 W. & Ser. 405; and the Act of Assembly as respects this record, is retrospective: 5 W. & Ser. 172-3, Norman v. Heist; 5 Barr 145; 6 Id. 87; 9 Id. 108; 10 Id. 326. The sheriff had no authority to make the deed, as he had returned the land unsold, and his return was not amended: 2 Ser. & R. 426; Id. 53.

      McConnell, for defendant in error.
    It was observed that it has been the practice in Allegheny county to record sheriffs’ deeds in the recorder’s office. The Act of 14th March, 1846, authorizing their recording, is not unconstitutional. It does not affect the title; it operates only on the remedy. Acts of that character have been usual. Act of 10th March, 1818, authorizing the sec-of the land office to exemplify letters of attorney, and making the exemplifications evidence. Act of 5th April, 1849, as to records of deeds by commissioners. Act of 21st April, 1841, providing for the perpetuation of evidence as to the location of streets in Pittsburgh: 1 Watts 357, as to deeds of married women: 10 Shepley 553, Fales v. Wadsworth.
    The validity of the sheriff’s deed does not depend on Ms return, but on his writ. There is, in legal contemplation, no sale till deed made and delivered. It was intimated that the last return of “unsold for want of bidders,” was after the acknowledgment and delivery of the deed to the purchaser. It was said that the acknowledgment in the body of the deed that Gray had paid the purchase-money, was sufficient, without a receipt for it: 7 Cowen 360. Here the possession of the deed and the property has been had by Gray for above 29 years, and the deed has been on record for above 26 years. Whether McGregory was dead or not when the judgment against him was rendered, his death was not suggested on the record; and not having been so, he will be presumed in law to have been then alive: 4 Watts 370, Warder v. Tainter. Before the Act of 24th February, 1834, it was not necessary to make the heirs parties to the record: 13 Ser. & R. 147; 4 Watts 371, opinion of Kennedy, J.; Id. 367; 9 Barr 305.
    Gray was not a trustee for McGregory’s heirs. He was not bound to pay the purchase-money till he got his deed, and till tender of a deed he was not in default. If he paid the money to Wallace to get the title, he was exposed to the claims of judgment-creditors- of McGregory; and if he paid it to such creditors, he was exposed to the claims of Wallace or his heirs.
   The opinion of the Court was delivered, September 15, by

Lewis, J.

Where an injury is caused by an error in judicial

proceedings, it is better that the loss should fall upon the parties whose negligence or acquiescence occasioned the wrong, than upon innocent third persons. It is therefore a rule in the administration of justice, that where a judgment is not absolutely void, a sale to a third person, in pursuance of it, cannot he defeated by any error or irregularity whatever. Errors and irregularities in the judgment, are not to be regarded in collateral proceedings. It has been held that a sale under a judgment against one who was dead at the time it was entered, vests in the purchaser a good title. If this be the rule where the representatives of the decedent have had no notice whatever of the proceedings, there can be no objection to its application to cases in which the proper representatives have had notice, and, by their attorney, have agreed upon the record to be substituted as parties. After the expiration of thirty years from the date of such agreement of substitution, it would seem to be against equity and law to permit the heirs of the decedent to object to the title of the sheriff’s vendee on the ground that a formal substitution of the administrators had not been made by means of a scire facias.

In Vastine v. Fury, 2 Ser. & R. 432, a sheriff’s deed was held to be valid, notwithstanding that the return remained unaltered upon the record, setting forth that the purchaser had not paid the money, and therefore the land remained unsold. The sheriff’s deed, duly acknowledged, reciting the sale and the receipt of the money, was deemed a sufficient amendment of the return. It is true that the sheriff had been directed to amend his return; but this was held to be no more than granting him leave to do so, because the Court had no power to compel him to alter his return in a matter of fact, and he had not in fact altered it, except by the act of executing the deed to the purchaser. The act of the Court in the case now before us, by which the acknowledgment of the deed was received and entered of record, and certified, was certainly equal to granting the sheriff permission to amend his return; and the deed thus acknowledged, with the sanction of the Court, was as effective, in amending the previous return, as that which was held to produce the same effect in Vastine v. Fury. The entry of the acknowledgment is presumed to have been made upon due notice to the parties interested, and the action of the Court has all the effect of a judicial decree. The sheriff’s deed, thus acknowledged, was therefore primd facie evidence of the payment of the purchase-money and of a valid title to the land.

If James Gray, by the payment of the contract price, in .discharge of encumbrances, could have obtained a good title, such as McGregory had contracted to convey to him, there might have been some reason for treating him as a trustee for McGregory. But this was impossible. The judgment in favor of Moreland upon McGregory’s equitable interest was for a sum greater than Gray was to pay for his purchase. But independent of that judgment, McGregory’s title was imperfect, because it was but a contract with Wallace for the land, upon which the purchase-money remained unpaid. So that if Gray paid the purchase-money due to Wallace, the land was still liable to sale under the judgment of Moreland against McGregory. If he paid the latter judgment, Wallace might recover the land in ejectment on his legal title. The only safety of Gray consisted in extinguishing both claims; and this could not be done without paying a large sum, more than the price agreed upon in his contract with McGregory. McGregory, whose duty it was to protect his vendee, and to discharge the encumbrances, disregarded his obligations to his creditors, as well as his contracts with Wallace and Gray. Under these circumstances, Gray had a right to purchase the equitable interest of McGregory, at sheriff’s sale, under the judgment of Moreland; and this purchase entitled him, upon the recovery of a conditional verdict for the land, by Wallace, to pay the purchase-money due to the latter, and to perfect his title by receiving a conveyance from his devisee.

The Act of 14th March, 1846, is constitutional. In permitting certified copies of sheriffs’ deeds, previously recorded, to be given in evidence, in all cases where the originals would be evidence, it neither divested a right nor impaired a contract.

This ejectment was brought in 1851; nearly thirty years after the sheriff’s sale to James Gray, and twenty years after the conditional verdict in favor of Wallace. After such inattention to the obligations of his contracts with Wallace and Gray, and such long-continued acquiescence in the judicial proceedings to transfer and extinguish his rights, we do not see how his claim could have been sustained by the Court below. The objections to evidence were properly decided, and the instructions to the jury were as favorable to the plaintiffs in error as they had any right to demand.

Judgment affirmed.