text:
    Dempwolf v. Grey bill, Appellant.

      Deed — Escrow—Passing of title — Estoppel—Covenant—Mortgage.
    A purchaser for value has a right to act on the faith that a deed has been signed, sealed, acknowledged and delivered as it purports to be, and the presumption is that it has been so executed and delivered by proper parties. A mortgagee is a purchaser for value.
    An owner of a mill deposited with a trust company a deed for his property, in escrow. By the terms of the escrow agreement he was to receive money and stock of a corporation, which was to take title to the property. Subsequently he was notified that the option in the escrow agreement had been exercised. The trust company delivered the deed to the purchaser, and forwarded the money and stocks to the grantor who receipted for them. About the same time the grantor executed a lease whereby he covenanted to operate the mill for a period of sixty days as lessee. Both before and after the receipt of the cash and stocks he stated at different times and to different persons that he was in possession of the property as a tenant under the lease, and after the organization of the corporation he acknowledged his liability for rent to the company. After the delivery of the deed the company executed a mortgage on all its property, of which the grantor had notice. On a subsequent default the mortgage was foreclosed, and the properties were sold. In an action of ejectment by a purchaser at the foreclosure sale against the grantor in the deed to recover the mill, the grantor maintained that no title had passed from him because of the failure of the trust company to see that certain other conditions of the escrow agreement had been complied with. He also offered evidence that at the foreclosure sale he had given public notice of his claim of title. Held, that the court committed no error in giving binding instructions for plaintiff in the ejectment.

      Deeds — Construction—Condition—Covenant.
    Where words of a deed can be construed either as a condition, reservation or covenant, the latter construction is favored.

      Argued April 25, 1905.
    Appeal, No. 118, Jan. T., 1905, by-defendant, from judgment of C. P. Cumberland Co., Nov. T., 1904, No. 131, on verdict for plaintiff in case of Charles H. Dempwolf v. John D. Grey bill.
    Before Mitchell, C. J., Dean, Fell, Brown and Elkin, JJ.
    Affirmed.
    Ejectment for land in the borough of Carlisle. Before Sadler, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the court refused under objection and exception to admit various offers of testimony by defendant relating to the matters connected with promotion, organization and finan-. cing of the Eastern Milling & Export Company. [1-7]
    Mr. Woods : It is proposed to prove by C. W. Yost of Steel-ton, Dauphin county, Pennsylvania, that in the year 1903, he had a conference with Mr. Dempwolf, plaintiff in this action, in which he informed him that the conditions under which the properties in the combination of the Eastern Milling & Export Company of New Jersey had been taken contrary to the conditions of purchase, in the following particulars:
    That money had been taken from the bond issue of $800,000 to pay for said properties, and had thereby reduced the working capital to such an extent that the scheme would be a failure.
    That the said Dempwolf and H. C. Niles were directors at the time of the Security Title & Trust Company of York, Pennsylvania.
    This for the purpose of bringing notice home to Mr. Dempwolf, the plaintiff in this action, and for the further purpose of proving that Mr. Dempwolf is not an innocent purchaser, bona fide purchaser, for value received.
    Mr. Niles : Objected to as not proper legal evidence to sustain the issue on part of the defendant, or to affect adversely the rights of the plaintiff in this action, as irrelevant, incompetent and immaterial.
    The Court: Objections are sustained, offer refused, defendant excepts and bill is sealed. [8]
    The court charged as follows :
    [The defendant in this action, alleging as a defense that he was the victim of a fraud by which he was induced to make a conveyance of his mill property, we allowed the widest latitude in the admission of testimony, which might tend, in the opinion of his counsel, to establish the truth of his contention, reserving, however, the effect which we would give to the same. The offers and declarations made on his behalf at the beginning and early stages of the trial led us to think it to be our duty not to reject the offers there made and admitted.
    We are now, however, at the conclusion of the case, and of the opinion that no such relevant, competent and material evidence has been adduced on the part of the defendant, John D. Greybill, as will avail against the claim of Charles H. Dempwolf, the plaintiff, to recover, and you are therefore directed to render a verdict in his favor for the land described in the writ.] [9]
    Verdict and judgment for plaintiff. Defendant appealed.

      F?'rors assigned were (1-8) rulings on evidence, quoting the bill of exceptions; (9) charge of the court, quoting it; (10) in entering judgment on the verdict.

      R. W. Woods, with him Frank B. Sellers, Jr., for appellant.
    —Fraud creates such an injury as will be redressed when it is the means of obtaining from an owner, by a false representation of a fact which he deems material, property which he would not otherwise have parted with upon the terms which he is thus induced to accept: Williams v. Kerr, 152 Pa. 560; Levick v. Brotherline, 74 Pa. 149; McCaskey v. Graff, 28 Pa. 321; Schrader v. Decker, 9 Pa. 14; Logan v. Gardner, 136 Pa. 588.
    The depositary was not justified in delivering the deed until the conditions had been strictly complied with: Audenried v. East Coast Milling Co., 59 Atl. Repr. 577; Dyson v. Bradshaw, 23 Cal. 528; Beem v. McKusick, 10 Cal. 538; Hinman v. Booth, 21 Wend. (N. Y.) 267; Abbott v. Alsdorf, 19 Mich. 157; Jackson v. Rowland, 6 Wend. (N. Y.) 666.
    The grantee took, at best, but a voidable title: Fitch v. Miller, 200 Ill. 170 (65 N. E. Repr. 650) ; Berry v. Anderson, 22 Ind. 36 ; County of Calhoun v. Emigrant Co., 93 U. S. 124; Daggett v. Daggett, 143 Mass. 516 (10 N. E. Repr. 311) ; Landon v. Brown, 160 Pa. 538.

      The grantor was not estopped from asserting his title : Robbins v. Magee, 76 Ind. 381; Brewster v. Hatch, 122 N. Y. 349 (25 N. E. Repr. 505); Knight v. Knight, 178 Ill. 553 (53 N. E. Repr. 306) ; Anderson v. Brinser, 129 Pa. 376; Bush v. Genther, 174 Pa. 154.
    The bondholders are chargeable with such notice of the condition of title of the properties covered by the mortgage as the trustee possessed prior to, and at the time of, the execution of the mortgage: Fidelity Ins., etc., Co. v. Shenandoah Val. R. R. Co., 9 S. S. Repr. 180 ; Pierce v. Emery, 32 N. H. 484; Miller v. R. R. Co., 36 Vt. 452; Weil Bros. & Co. v. Cohn, 4 Pa. Superior Ct. 443; Simons v. Vulcan Oil, etc., Co., 61 Pa. 202.

      Henry O. Niles, with him Wetzel § Hambleton, for appellee.
    —If the agent violates the terms of the escrow and delivers contrary to instructions, the title is good in the hands- of a bona fide purchaser for value. The grantor may sue the unfaithful agent: Blight v. Schenck, 10 Pa. 285.
    Both bonds and mortgage of a corporation are negotiable and are not subject to be defeated by any equities : Cook on Corporations, secs. 767 and 768.
    When the trustee is selected by the mortgagor, notice of a defense to a trust mortgage given to him does not affect the rights of bondholders or the right of the trustee to enforce the mortgage for the benefit of the bondholders as bona fide holders for value without notice: Cook on Corporations, sec. 817; Johnson County v. Thayer, 94 U. S. 631; Curtis v. Leavitt, 15 N. Y. 9, 194.
    After conveyance a vendor retaining possession does so as trustee for the vendee: Ingles v. Ingles 150 Pa. 397 ; Kern v. Howell, 180 Pa. 315.
    No knowledge or notice to a purchaser at a foreclosure sale will affect the title conveyed to him at such sale: Logan v. Eva, 144 Pa. 312.
    January 2, 1906:
   Opinion by

Mr. Justice Elkin,

The plaintiff stands on his record title, the documentary evidence of which introduced at the trial made out a prima facie case in his favor. After an exhaustive examination of all the questions raised by this appeal, we are of opinion that no testimony produced at the trial, or offered and refused, was sufficient in law to overcome the prima facie case made out by the plaintiff. The theory upon which the learned counsel for appellant bases his contention is that the terms and conditions of the option or agreement with Jackson under which the deed was held in escrow, had not been complied with before it was delivered by the Union Trust Company, the depositary, to Murphey, the grantee, and by reason of the alleged failure to comply with the terms and conditions precedent to the delivery of the deed no valid title passed.

The first seven assignments allege error in the learned trial judge refusing to admit testimony offered by defendant, relating to and bearing upon matters connected with the promotion, organization and financing of the Eastern Milling & Export Company. The general purpose of these offers was to show such a violation of the conditions upon which the deed was held in escrow as to be a fraud on the rights of appellant by reason of which no title passed. Whether in a suit between appellant and Jackson, or between appellant and the Eastern Milling & Export Company, this testimony should be admitted for any purpose, it is not necessary to consider and determine, but as between the parties to this litigation, under the admitted and undisputed facts, it is clearly incompetent for the purpose of affecting the validity of plaintiff’s title.

It appears from the uncontroverted evidence in the case that appellant executed a deed for the milling property in dispute, and deposited it with the Union Trust Company of Philadelphia in escrow, under the terms and conditions of the agreement with Jackson ; that said deed was to be delivered by the depositar}' to the grantee therein named when the consideration agreed upon, in money and stocks, had been deposited with said trust company and the other conditions had been complied with; that on April 5, 1901, appellant was notified that the Eastern Milling & Export Company had exercised the option to purchase the property; that the amount of money and stocks agreed upon as a consideration therefor had been received by and deposited with said trust company; that a mortgage had been placed on said property to secure a temporary loan; that he should transfer his insurance to the mortgagee; and that he would be expected to enter into a lease under the terms of which he should operate the mill for a period of sixty days as lessee. A few days after receiving this notice he executed a lease whereby he covenanted to operate the mill for a period of sixty days as lessee, and surrender the same on five days’ notice thereafter. Some delay in closing up the transaction was occasioned on account of the failure to deliver a deed for a railroad siding, which it was alleged should be included in the conveyance. The deed for the siding was delivered May 31, and subsequently the Union Trust Company forwarded the money and stocks deposited with it to appellant as consideration for the transfer under the terms of the agreement by which the deed was held in escrow. On June 20, he acknowledged in writing the receipt of $6,250 and 375 shares of the preferred and 375 shares of the common stock of the Eastern Milling & Export Company, which he accepted as consideration in full for his mill property.

Before and after the receipt of the cash payment and stocks, appellant asserted at different times and to different persons that he was in possession of the property as a tenant under the lease. As late as July 5, after the organization meeting of the Eastern Milling Export Company, he acknowledged ■ his liability for rent due the company as its tenant, and asked that it be charged to him as a set-off in the settlement to be made ’ on account of the company taking over certain personal property belonging to him. On the same day he deposited the stock held by him in a pool with other stockholders of the company, but withdrew it a few days later.

On the other hand, it cannot be doubted that the grantee and his assigns treated the delivery of the deed as an absolute transfer of the property on and after April 5, 1901. On that day Murphey, the grantee, acting under the direction of the Eastern Milling & Export Company, executed a mortgage on the milling property, the title to which is in dispute in this suit, to secure a temporary loan of money. The appellant had notice of the execution of this mortgage because he was notified to transfer the insurance to the mortgagee. On July 1, a general mortgage covering all the constituent properties of the new corporation, including the property of the appellant, was executed and recorded. This mortgage secured a bond issue in a large sum of money. Tlie corporation defaulted in the payment of interest on the bonds, and the mortgage was foreclosed by a decree of the United States circuit court, under which the property in dispute, and all other properties covered by the mortgage, were sold and conveyed to the plaintiff who brought this action in ejectment.

It is thus apparent that the appellant, the new consolidated milling company, and all other parties in interest, treated the delivery of the deed by the trust company to Murphey, April 5, 1901, as an absolute transfer of the property. Against this array of concrete facts it is of no avail to assert abstract principles of law wherein it is held that a deed takes effect only from the time of its delivery; or, where a deed is placed in the hands of a third person as an escrow, the grantee is only entitled to a delivery upon a strict compliance with the conditions precedent to such delivery; or, that if the depositary delivers the deed without authority from the grantor, or if the grantee obtains possession of it fraudulently, without performing the conditions, the deed is void ; or, that where the future deli very of a deed depends upon the payment of money, or the performance of some other condition, and the grantee obtains possession of the deed without performing the condition, he acquires but a voidable title. These are recognized and settled principles of law, and will not be questioned by anyone familiar with the rules of property, but it would do violence to every rule of construction to hold them applicable to the facts of tlie case at bar.

The appellant does not deny that he received the full consideration for his property as provided in the agreement with Jackson, to wit: the cash in hand and stocks, but contends that the stocks are depreciated in value because of the failure to comply with certain other conditions of the agreement, and that it was the duty of the depositary to see that all the terms and conditions of said agreement were carried out before the delivery of the deed. The position is not tenable under the facts of the present case. Such a rule would impose a higher standard of legal requirement on the agent than on the principal. It will not be seriously contended that in this respect the Union Trust Company can be required to exercise greater care and diligence in the enforcement of the conditions of the escrow than the appellant, who, with Jackson, constituted the trust company depositary for the receipt of the consideration and delivery of the deed. When the appellant, who was as familiar with the facts connected with the organization of the new milling company as the common agent, the depositary, accepted the money and stocks in full consideration for his property, and thereafter acquiesced in the mortgage of said property as a security to third parties and bondholders, who had advanced their money for the uses and purposes of the new corporation, he cannot now be heard to say that the depositary had been unfaithful in not enforcing the alleged conditions of escrow precedent to the delivery of the deed.

If a title may he avoided under such circumstances, no purchaser is safe. The learned court below was clearly right in the construction placed upon the escrow agreement. The rule is that where words can be construed either as a condition, reservation or covenant, the latter construction is favored : Methodist Church v. Old Columbia Public Ground Co., 103 Pa. 608; In re Sellers M. E. Church, 139 Pa. 61. A purchaser for value has a right to act on the faith that a deed has been signed, sealed, acknowledged and delivered as it purports to be, and the presumption is that it has been so executed and delivered by proper parties: Blight v. Schenck, 10 Pa. 285. A mortgagee is regarded in law as a purchaser for value : Logan v. Eva, 144 Pa. 312.

In the view we take of the case it is not important to consider the question of notice at the foreclosure sale raised by the eighth assignment of error. The appellant had executed a conveyance of his property and had received the consideration agreed to be paid him, and the delivery of the deed under the circumstances was binding upon him. Having parted with the title to his property, and the rights of third parties having intervened, it was immaterial what notice he gave at the sale.

The ninth and tenth assignments, for reasons hereinbefore stated, are without merit.

The agreement with Jackson may have been an improvident one; the plan for the combination and operation of the smaller milling properties in a large operating company may have been unwise and unprofitable, like many other promising enterprises floated for speculative purposes, but the matters complained of must be raised, if at all, in a proper proceeding between the parties, and cannot be set up as a defense for the purpose of avoiding a deed solemnly executed and duly recorded.

This opinion was not handed down with others in cases heard at the same time for the reason that it was originally assigned to our late Brother, Mr. Justice Dean, and after his death it was reassigned too late to hand down with others in June.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Elk Brewing Company, Appellant, v. Neubert.

      Corporations — Officers—Two corporations with same treasurer.

    Two corporations, if they so choose, may have the same person act as the treasurer of each. In so doing, however, the relations, duties and liabilities of the two corporations are in no way changed, and are just the same as if a different individual had acted as treasurer of the respective companies.
    If the treasurer of a brewing company who is also the treasurer of a trust company, opens an account in the trust company with the brewing company’s moneys, and misappropriates such moneys, the trust company cannot in the absence of fraud or collusion on its part be held liable for the moneys misappropriated.
    Where the president of a brewing company is also a director of a trust company, the trust company cannot by reason of this fact alone, without evidence of fraud or collusion, be held liable to the brewing company for a loss resulting to the latter from the misfeasance of its president.

      Equity — Equity practice — Misjoinder of party defendant.

    A bill in equity which joins separate respondents, acting in different capacities, upon different rights, and not chargeable with any joint liability or interest in the relief sought, is defective.

      Equity — Equity jurisdiction — Discovery—A ccount.

    Where there is no right to the main relief sought by a bill in equity, and discovery is merely incidental to this relief, it will not be granted. In a bill seeking an account and discovery, the discovery is prima facie merely incidental to the account, and if a right to an account is not disclosed the bill will be held bad on demurrer.
    Argued Oct. 10, 1905.
    Appeal, No. 135, Oct. T., 1805, by plaintiff, from decree of C. P. Armstrong Co., June T., 1905, No. 127, dismissing bill in equity in case of Elk Brewing Company v. Charles Neubert, Valentine Neubert and the Safe Deposit & Title Guaranty Company et al.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an account and discovery. Before Patton, P. J.
    The averments of the bill appear by the opinion of the Supreme Court.
    Each of the defendants filed a demurrer in substantially the same form, which was as follows :
    1. The bill is multifarious.

      (a) Because it joins three persons as defendants, against whom, if the plaintiff has any equitable rig’ht, its remedy would be against them as individuals and not against them jointly or collectively.
    (5) Because the defendants are distinct and separate in business relations and are not jointly liable (if liable at all) under the averments of the bill; there is no common liability of the defendants.

      (c) Because the bill avers and charges the defendants in separate relations and capacities.

      (cP) Because a chancellor could not make a decree, if the facts were found to be true as averred, that would be just against said defendants jointly.

      (e) Because the bill prays for relief against three defendants and with respect to at least two distinct matters, and against said defendants who were either as individuals or officially in distinct separate capacities or positions.
    (/) Because these defendants, under the averments of the bill, would have different defenses and different proofs, and a chancellor would be required to make different decrees.
    ' (y) Because the right of the decree prayed for, under the averments of the bill, must be established by evidence different from that introduced against other of the defendants, or upon a finding of facts in regard to which the other defendants are unconcerned and unadvised.
    '2. The bill does not disclose a case for equitable jurisdiction against Charles Neubert.
    3. If any right exists against Charles Neubert, a proceeding at law is the proper remedy and not by equity.
    The court entered a decree dismissing the bill.

      Error assigned was the decree of the court dismissing the bill.

      C. E. Harrington, with him M. F. Leason, for appellant.—
    A court of equity’s jurisdiction over matters of account is based upon the complicated character of the account, the need of discovery and the existence of a fiduciary or trust relation : Tully v. Felton, 177 Pa. 344; Graham v. Cummings, 208 Pa. 516.
    The remedy at law is not complete, adequate and satisfactory, and this in itself will support the bill: Brush Electric Co’s. App., 114 Pa. 574.
    A bank occupying the position of trust with the plaintiff, should at all times, when it is called in question, open its books and honestly disclose the facts : Gloninger v. Hazard, 42 Pa. 389; Reeside v. Reeside, 49 Pa. 322; Penn Iron Co., Ltd., v. Lancaster, 25 Pa. Superior Ct. 478; Philadelphia y. McManes, 15 Phila. 104; Bussier v. Weekey, 11 Pa. Superior Ct. 463.

      Rush Fullerton, with him McCain Christy, Ross Reynolds and J. W. King, for appellee.
    A bill is multifarious when it joins or embraces independent matters and aims at too many objects: Wray v. Hazlett, 6 Phila. 155; Taylor v. King, 32 Mich. 42 ; Walker v. Powers, 104 U. S. 245; Emans v. Emans, 13 N. J. Eq. 205; Laughead v. Beale, 24 Pa. C. C. Rep. 465; Cumberland Valley R. R. Co’s. App., 62 Pa. 218 ; Artman v. Giles, 155 Pa. 409; Rafferty v. Traction Co., 147 Pa. 579; Adams v. Manning, 10 W. N. C. 448; Ferguson’s App., 117 Pa. 426; Keystone Electric Light, etc., Co. v. Peoples’ Electric Light, etc., Co., 200 Pa. 366.
    Plaintiff company has an adequate remedy at law: Sprigg v. Comw’lth Title Ins. & Trust Co., 206 Pa. 548; Pittsburg, etc., R. R. Co’s. App., 99 Pa. 177.
    January 2, 1906:
   Opinion by

Mr. Justice Elkin,

The bill avers, substantially, that Charles Neubert was the treasurer of the brewing company and also of the trust company; that as treasurer of the brewing company he kept its accounts in the trust company and intermingled or mixed the funds of the brewing company with those of the trust company so as to render complainant unable to determine how much money is in his hands as treasurer and deposited in the trust company; that Valentine Neubert was the president of the brewing company and a director of the trust company; that said Yalentine Neubert was one of the cestuis que trustent in the Bernd mortgage and that he has in his possession papers, agreements, records and memoranda showing the transaction concerning said mortgage and refuses an inspection of the same; that said Yalentine Neubert has failed as president of the brewing company to supervise and inspect the accounts of the treasurer thereof, and to ascertain the funds belonging to said company and has knowingly permitted the corporate funds to be used improvidently; that on September 27, 1898, in pursuance of an agreement made prior to that date, Henry F. Bernd executed a mortgage to said trust company as trustee in the sum of $11,000 to secure a loan of that amount made to him, and of this amount the brewing company advanced $4,000, and that afterwards, to wit: on December 18, 1900, said trust company received the sum of $4,500 ou account of said mortgage for use of the appellant and has not accounted for the same; that said trust company has refused to allow plaintiff to make an examination of its books, records and accounts showing the status of the accounts of Charles Neubert as treasurer, and has failed to account for other moneys belonging to the appellant. Upon this allegation of facts, the complainant relies to show such joint liability and interest between the respondents as will entitle it to the equitable relief prayed for.

Much of the confusion in this case has arisen because of a seeming misapprehension of the legal status of Charles Neubert, who acted as treasurer of both corporations. He had a right to act in this dual capacity if the corporations chose to have him so act. In so doing, however, the relations, duties and liabilities of the two corporations were in no way changed. Any act performed by him within his duties as treasurer of the brewing company was not his individual act, but the act of the company whose officer he was, just as his act as the treasurer of the trust company was the act of said company and not his individual act. The lights, duties and liabilities of each company are just the same as if a different individual had acted as treasurer of the respective companies. If the trust company is indebted to the brewing company, the obligation arises not because Charles Neubert was the treasurer of one or both companies, but, oh account of said trust company having received moneys belonging to tbe brewing company which it has not accounted for. In such event a bill in equity does not lie because there is an adequate remedy at law.

Again, if the treasurer of the brewing company has failed or refused to account for all the moneys which came into his hands as treasurer, or if he is guilty of any misfeasance or malfeasance in office, he is liable to his company entirely independent of the fact of where he deposited said moneys or, indeed, whether he deposited them at all. Certainly, the trust company, which received said deposits in its usual course of business, like all other deposits, in the absence of fraud or collusion, cannot be held liable for the failure of the plaintiff’s own treasurer to perform his duty. It would be a harsh rule to hold the trust company liable to the brewing company because of the alleged malfeasance of its own officer. Even if it be conceded, which it is not, that the treasurer of the brewing company failed to deposit or account for all moneys which came into his hands as such, the trust company cannot be held liable for such default or misappropriation merely because said treasurer happened to be an officer of the trust company at the time of the default or misappropriation.

And how does Valentine Neubert come into this equitable proceeding ? He is charged with being president of the brewing company and a director of the trust company during the period covered by the bill. Lie is also charged with having failed in the performance of his duties as president of the brewing company and with having permitted the corporate funds to be improvidently used. If these allegations be true, how do they affect the trust company ? How can the trust company bo made answerable for the alleged wrongful acts of the president of the brewing company ? The only connection between them in this respect is that the same man happens to be president of one and director of the other corporation. This fact neither increases nor diminishes the liability of the respective companies. If Valentine Neubert has been derelict in his duty as president of the brewing company, that company must look to him in a proper proceeding, and cannot hold either the trust company or Charles Neubert answerable for such dereliction of duty in the absence of fraud or collusion, and none such is charged.

What has already been said brings the case within the rule stated in Artman v. Giles, 155 Pa. 409, wherein it is held that a bill in equity which joins separate respondents, acting in different capacities, upon different rights, and not chargeable with any joint liability or interest in the relief sought, is defective.

As to the allegation that the trust company owes the brewing company $4,500 on the Bernd mortgage, as well as other moneys, it is only necessary to say that an action at law provides a full, complete and adequate remedy.

There only remains one question to be considered. It was contended in the court below, and it is argued here, that the bill should be sustained for discovery, and if good for dis.covery, equity jurisdiction having attached for this purpose, all other questions may be considered and disposed of in the same proceeding. It may be conceded that it is difficult under the authorities to draw the line between the cases when a bill for discovery, having also a prayer for relief, is entertained, and when refused. It is not open to doubt, however, that if discovery is used as a mere pretense to give jurisdiction, if would be a gross abuse to entertain a suit in equity when the whole foundation upon which it rests is either disproved or is shown to be a colorable disguise for the purpose of changing the forum of litigation: Story’s Eq., page 70 et seq.

The question has been ruled in our own state in Holland v. Hallahan, 211 Pa. 223, wherein Mr. Justice Fell said: “ Where there is no right to the main relief sought by a bill, and discovery is merely incidental to this relief, it will not be granted. In a bill seeking an account and discovery, the discovery is prima facie merely incidental to the account, and if a right to an account is not disclosed the bill will be held bad on demurrer.”

We have already said that the plaintiff is not entitled to the equitable relief prayed for, and since the discovery is only incidental to the relief, it necessarily follows, under the rule stated, that the bill must fall.

Decree affirmed at the cost of the appellant.


author: Mr. Justice Mestbezat,

text:
    Garvey v. Harbison-Walker Refractories Company, Appellant.

      Deed — Plan of lots — Streets—Dedication—Equity—Estoppel.
    A sale of lots according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall be forever open to the use of the public, and operates as a dedication of it to public use.
    The proprietor cannot revoke the dedication, and the purchaser of a lot abutting on one of the streets as well as all other persons owning lots in the general plan may assert the public character of the street and the right of the public to use it.
    The fact that the plan of lots does not appear on the maps of the municipality is immaterial as between parties claiming under the original owner and affected with knowledge of his plan.
    Where a corporation encroaches with a building upon one of the streets shown in the plan, and its successor in title, another corporation, purchases all of the lots on the plan, except lots owned by one person, the latter has a right to compel such corporation to remove the encroachment from the street, and this he may do by a bill in equity.
    In such a case where the owner has not consented to or acquiesced in the placing of the obstruction on the street, his mere silence will not prevent him from demanding the removal of such obstruction. The rule applies that “if the truth be known to both parties, or if they have equal means of knowledge, there can be no estoppel.”
    On a bill in equity by a purchaser of a lot according to a plan of lots against another purchaser who has obstructed a street shown on the plan of lots, the question of irreparable damages does not enter, and the jurisdiction of equity will be maintained, because the law does not afford an adequate remedy.
    Argued Oct. 9, 1905.
    Appeal, No. 40, Oct. T., 1905, by defendant, from decree of C. P. Cambria Co., March T., 1903, No. 1, on bill in equity in' case of Bernard Garvey v. HarbisonWalker Refractories Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before O’Connor, P. J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the decree of the court commanding the defendants to remove all fences, railroad tracks, brickkilns, sheds, offices, scales, buildings and obstructions on or along Tibbott street, and a .neighboring alley.

      Roberts S. Murphy, with him Thomas TJ. Murphy and James H. McCloskey, for appellant.
    Two elements, that of relative expense and inconvenience, enter largely into a determination of the question, and the court should consider how much is occasioned to the parties: Green v. Richmond, 155 Mass. 188 (29 N.E. Repr. 770) ; Berkely v. Smith, 27 Grattan (Va.), 892; Welsh v. Taylor, 50 Hun, 137 (2 N. Y. Supp. 815).
    Plaintiff was guilty of laches: Hartman v. Fick, 167 Pa. 18; Kohler v. Smith, 3 Pa. Superior Ct. 176; Orne v. Fridenberg, 143 Pa. 487 ; Fidelity Ins., etc., Company v. Fridenberg, 175 Pa. 500 ; Heilman v. Lebanon, etc., Street Railway Company, 175 Pa. 188; Rennyson v. Rozell, 106 Pa. 407; Neely’s Appeal, 85 Pa. 387; Evans’s Appeal, 81 Pa. 278; Butler v. Egge, 170 Pa. 239; Fidelity Ins., etc., Co. v. Fridenberg, 175 Pa. 500.
    Equity has no jurisdiction: Rhea v. Forsyth, 37 Pa. 503; Cumberland Valley R. R. Co.’s App., 62 Pa. 218; Steel v. Huntingdon Borough, 191 Pa. 627 ; Scranton v. D. & H. Canal Co., 12 Pa. C. C. Rep. 283; Chicago, etc., Ry. Co. v. People ex rel. Elgin, 91 Ill. 251; Robb v. Carnegie, 145 Pa. 324.

      William Williams, with him Harry Boerr, for appellees.
    A sale of a large number of lots by conveyance which called for a frontage upon a certain street amounts to a dedication as between the vendor and his successors in title and.all the vendees: Com. v. Shoemaker, 14 Pa. Superior Ct. 194; Ferguson’s App., 117 Pa. 426; Com. v. Llewellyn, 14 Pa. Superior Ct. 214; Weaver v. Getz, 16 Pa. Superior Ct. 418; Hacke’s App., 101 Pa. 245; McMurtrie v. Stewart, 21 Pa. 322; Penna. Schuylkill Val. R. R. Co. v. Reading Paper Mills, 149 Pa. 18; Com. v. Moorehead, 118 Pa. 344 ; Bald Eagle Val. R. R. Co. v. R. R. Co., 171 Pa. 284 ; Geible v. Smith, 146 Pa. 276; Quicksall v. Philadelphia, 177 Pa. 301; Orne v. Fridenberg, 143 Pa. 487; Manbeck v. Jones, 190 Pa. 171.
    Silence will postpone a title where it misleads, and thus becomes a fraud, but it will not postpone where the party seeking the postponement on the ground of silence is himself aware of his title: Woods v. Wilson, 37 Pa. 379; Bright v. Allan, 203 Pa. 394; Knouff v. Thompson, 16 Pa. 357; Thompson’s App., 126 Pa. 367; Heilman v. Ry. Co., 180 Pa. 627.
    January 2, 1906:
   Opinion by

Mr. Justice Mestbezat,

It is settled by numerous decisions of this court that a sale of lots according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall be forever open to the use of the public and operates as a dedication of it to public use: Transue v. Sell, 105 Pa. 604; Quicksall v. Philadelphia, 177 - Pa. 301. The proprietor cannot revoke the dedication, and the purchaser of a lot abutting on one of the streets as well as all other persons owning lots in the general plan may assert the public character of the street and the right of the public to use it: In re Opening of Pearl Street, 111 Pa. 565. “ Where one owns property by a title sufficient to give him entire dominion over it,” says Thompson, C. J-, in Davis v. Sabita, 63 Pa. 90, “ he can grant it all, or reserve portions of it as he pleases. So may he dedicate it to uses not contrary to law, either public or private, and it is only by lawful process, or the assent of those for whose use the dedication was made, that any change can be made. It is not for one citizen to disregard the lawful exercise of rights by another.” The fact that the plan of lots does not appear on the maps of the municipality is immaterial as between parties claiming under the original owner and affected with knowledge of his plan : Transue v. Sell, 105 Pa. 604.

Both parties to this litigation claim under Mrs. Tibbott, the common grantor. She was the owner in fee of a tract of land in Lower Yoder township, now situate in the city of Johns-town, Cambria county, and laid it out into building lots. In 1893, she began to sell the lots and in the conveyances they were described as adjoining and bounded by the streets and alleys designated on the plan. One of the streets named on this plan is Tibbott street. The lots on the south side of this street extended to an alley, running parallel with the street, and were sold to persons who improved them by the erection of buildings with reference to the street and alley. Three of the lots, at the intersection of Tibbott and River streets, are now owned by the plaintiff and were conveyed by Mrs. Tibbott and her husband to the plaintiff’s predecessor in title in 1898 and 1894. Tenement houses and a stable were erected on these lots. In 1894 the Basic Brick Company, the defendant’s grantor, purchased some lots in the Tibbott plan and erected thereon a plant for the manufacture of brick. In extending the plant, Tibbott street and the two alleys mentioned in the plaintiff’s bill were encroached upon and obstructed. Subsequently the company acquired title to all the other lots in the plan except those owned by the plaintiff, and on July 1, 1902, conveyed by deed its entire plant to the defendant company. This deed calls for Tibbott street. The trial judge found, on sufficient evidence, that “ neither party has acquired any title to Tibbott street or the lots in question, except that acquired in the conveyance of lots by deeds calling for streets or alleys upon a plot or plan.”

It is apparent from a statement of the undisputed facts that the defendant company and its predecessor in title had no authority, against the objection of an owner of another lot in the plan, to place obstructions on Tibbott street or any other street or alley designated on the plan of lots of which its real estate formed a part. By its deed, the Basic Brick Company took the lots conveyed to it subject to an easement by the public in the streets and alleys on which the land abutted. It held its lots subject to the same easement and with the same lights on the streets and alleys designated in the plan as the owners of the other lots had. It is claimed, however, as a defense to this proceeding that equity has no jurisdiction, and that the plaintiff has no right to the relief he seeks because of the acquiescence of himself and of his predecessor in title in the encroachments complained of, that the relief sought would be disproportionate to the alleged injury, that the damage to the defendant conn pany by granting the relief asked would be irreparable, and that the buildings and encroachments were built on the streets and alleys with the belief that no public or private right was invaded. We do not regard either of these positions as tenable. That equity has jurisdiction to give the plaintiff relief for the injury he has sustained we have no doubt. His right to have the streets and alleys kept clear of obstructions must be conceded under all our decisions. It is conferred by the grant contained in his deed, the validity of which is not questioned. Mrs. Tibbott was the owner of the land at the time it was subdivided into lots and is, as we have seen, the common grantor of both parties to this litigation. Hence the defendant company is not in a position to deny the existence of the ways designated in the plan of lots laid out by her and sold with reference to the plan: Hacke’s Appeal, 101 Pa. 245; Ferguson’s Appeal, 117 Pa. 426; Manbeck v. Jones, 190 Pa. 171. In Hacke’s Appeal, Mr. Justice Tkunkey, speaking for the court, says (p. 249) : “ It has long been settled that nuisances to rights of way are one of the classes of cases in which the equitable remedy by injunction may be sought. This was established in England and accepted as a rule in this country. No case has been cited where it was denied or doubted in this state. Its existence has been recognized. . . . This right of way is founded upon contract, the grant being shown by the respective deeds under which Brown and Ilacke hold their lots. The owner has a right to its enjoyment in the mode and form stipulated for in the deed. The mere fact that the appellants prevent such enjoyment is a sufficient ground for interference of the court by injunction.”

Nor will the alleged acquiescence or laches of the plaintiff and his predecessors in title avail the defendant company in this proceeding, and estop the plaintiff from asserting his right to have the obstructions removed from the street and alleys designated on the Tibbott plan of lots. The plaintiff contends that neither he nor those through whom he claims title consented to or acquiesced in placing the obstructions on the street and alleys, and the court found, in support of this contention, that from 1897 until the plaintiff became the purchaser of the property he was the agent of the owners, and as such protested from time to time against the encroachments. But aside from any objections which may have been made against the obstructions being placed upon the highways, the silence of the owners of the lots would not, under the facts of the case, prevent them now from demanding the removal of the obstructions. The defendant admits that its title papers call for Tibbott street and the alleys and refer to the plan, and the learned trial judge found as a fact, on sufficient evidence, that the defendant’s grantor, the Basic Brick Company, “ knew that it was encroaching upon and obstructing this street and the alley ways, though it continued to encroach upon and obstruct Tibbott street by-building a brickkiln thereon in 1899 arid a machine shop in 1900.” The Basic Brick Company therefore knew of the streets and alleys and of their location when it placed the obstructions upon them, and hence had knowledge that its act was unlawful and to the prejudice of the other owners of lots in the Tibbott plan. The deeds in its chain of title gave it notice of the streets and of their location, and there was nothing to justify the belief that in obstructing the streets and alleys it was not invading a public or private right. The silence of the plaintiff or of his predecessors in title, therefore, under the record facts in this case, will not work an estoppel: Hill v. Epley, 31 Pa. 331; Ormsby v. Ihmsen, 34 Pa. 462; Woods v. Wilson, 37 Pa. 379. “ If the truth be known to both parties, or if they have equal means of knowledge,” says Strong, J., in Hill v. Epley, “ there can be no estoppel.” And in Ormsby v. Ihmsen, the same justice, delivering the opinion, says : “ If the truth was known to both parties, there can be no estoppel; for it is essential to such an estoppel, that the party who asserts it has befen misled, and he cannot be misled by a statement, the falsity of which he knows.” In Woods v. Wilson, it is said that silence will not postpone a title when a party who is himself aware of the title seeks to postpone it on the ground of silence, and that when both parties are aware of their respective rights it (the doctrine of estoppel) has no place in law or equity.

It has been - distinctly ruled that in cases of this character the question of irreparable damages does not enter, and that the law does not afford an adequate remedy: Hacke’s Appeal, 101 Pa. 245. In that case it is said (p. 249) : “ It is not necessary that the owner should prove damage to entitle him to his property. . . . The court will not, unless under very exceptional circumstances, take into consideration the comparative injury to the parties from granting or withholding the injunction. The obstruction of a way by the owner of the land differs widely from the maintaining of a mill or factory which is in itself lawful, but by its noise, fumes or odors, becomes a private nuisance to a person in the vicinity. Here the question of irreparable damage enters. ... But not where a man 'buys land subject to an easement, or grants an easement. He cannot appropriate such property against the owner’s will and say I will compensate him in damages. . . . The law does not offer an adequate remedy. He is entitled to a remedy that will restore him to enjoyment, and is not confined to actions at law for damages resulting from obstructions.”

We find no substantial error in this record, and the decree of the court below is affirmed.


author: Mr. Justice Mestrezat,

text:
    Phillips Gas and Oil Company, Appellant, v. Pittsburg Plate Glass Company.

      Evidence — Written instrument — Parol evidence — Contemporaneous parol agreement — Oil and gas lease.

    An attempt to use an oil and gas lease in direct violation of a contemporaneous parol agreement made at the time of the execution of the lease, is a fraud, and parol evidence is admissible to establish the contemporaneous agreement. In such a case evidence of prior conversations and transactions is admissible as corroborative of the testimony adduced to show the contemporaneous parol agreement.
    Argued Oct. 11, 1905.
    Appeal, No. 179, Oct. T., 1905, by plaintiff, from judgment of G. P. Armstrong Co., June T., 1905, No. 81, on verdict for defendant in case of T. W. Phillips Gas and Oil Company v. The Pittsburg Plate Glass Company and J. B. Barker.
    Before Mitchell, C. J., Fell, Mestjeubzat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in Valley township. Before Patton, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the evidence of J. B. Barker was, inter alia, as follows:
    “ Q. When did Mr. Woll first come to your house ? A. He came there the evening of March 15, 1904. Q. Who were present? A. Why, my family. Q. What did Mr. Woll say; give us the total conversation there as it took place ? ”
    Plaintiff’s counsel objects to the question because it is not set up in the pleadings.
    The Court: We will hear the testimony and decide it after-wards; the objection is overruled and a bill of exceptions is sealed to the plaintiff. [1]
    Defendant offered the following:
    “ Know all men by these presents, that I, Joseph B. Barker, grantor and lessor in a certain article of agreement entered into with Samuel Runyon of the second part, dated January 19, 1900, covering all oil and gas rights in a certain tract of land in Yalley township, Armstrong county, Pa., bounded on the north by James Schaeffer, on the east by D. J. Zimmerman, on the south by Charles Colwell and R. Adams, and on the west by W. W. Egley, containing sixty-three acres, more or less, which agreement lias since been assigned to The Pittsburg Plate Glass Company, and the term of which lease as provided herein, to-wit: Three years and as much longer as oil and gas is found in paying quantities or the rental is paid thereon, do hereby agree to and with the said Pittsburg Plate Glass Company, assignee as aforesaid, who have heretofore and at the present time are paying the said rental, that the term of said lease shall be fixed as of twenty years from the date of said lease, and shall not exceed said twenty years, all provisions, stipulations, rights to surrender, rentals, royalties and times of • payments to continue as fixed in said lease. The purpose of this agreement is to fix a definite term to said lease and to provide for the time of the expiration of said lease or agreement, subject to all rights of said lessee to surrender as aforesaid.
    “ Witness' my hand and seal this 8th day of April, a. d. 1904.
    “ J. G. Shearer.” “J. B. Barker. (Seal)
    Plaintiff’s counsel object it purporting to be an extension of the lease dated April 18, 1904, when plaintiff’s lease is dated March 16, 1904.
    The Court: We will receive it for the present, the objection is overruled and a bill of exceptions is sealed to plaintiff. [2] The testimoii) of B. J. Barker, was, inter alia, as follows :
    “ Q. You are a son of J. B. Barker? A. Yes, sir. Q. Were you at home this night Mr. Woll called there? A. Yes, sir. Q. Give the jury the conversation that occurred there; begin with what Mr. Woll said, give the full conversation ? ”
    Plaintiff’s counsel objects to this as something which took place, not at the making of the lease, but before the making of the lease.
    The Court: We will hear that conversation ; for the present the objection is overruled, and a bill of exceptions is sealed to plaintiff. [3]
    “A. Mr. Woll came there on the evening of March 15, 1904, and he wanted to get a lease for that fifteen acres ; my father told him that he could not lease it, that the Pittsburg Plate Glass Company had a lease on it. He asked him then to see the lease with the Pittsburg Plate Glass Company. 1 went and got a copy of that lease and I showed it to him and he read it.”
    The court charged in part as follows:
    [But if you believe that in obtaining that written lease Mr. Woll perpetrated a fraud on Mr. Barker, that is, if he made a contemporaneous parol agreement, and on the faith of such agreement Mr. Barker acted, and would not have acted unless it had been made, if by that kind of a declaration on the part of Mr. Woll, and the agreement of Mr. Woll, that if the Pitts-burg Plate Glass Company would go into possession of this property that then he would return the lease, Mr. Barker was induced to sign this lease, then Mr. Woll had no right to put that lease on record.] [4]
    Plaintiff presented these points :
    2. That the pleadings in this case on the part of the defendants are not such as would authorize them to offer proof of a contemporaneous parol contract, changing and varying the written contract, under which plaintiff claims title, nor is the proof in the case such as would justify a chancellor, or justify a jury, in setting aside or varying or changing the written contract. Answer: Refused. The facts are for the jury. [5]
    3. Under all the pleadings and evidence in this case the verdict of the jury should be for the plaintiff. Answer ; Refused with leave to renew this question under act No. 198 of 1905. [6]
    Defendant presented this point:
    2. If the jury find that the plaintiff procured the lease offered by them under a parol contemporaneous agreement that it would be returned to Barker in case the defendant claimed the premises in suit under its lease, and that the defendant claimed the premises, then the refusal of the plaintiff to return the lease and the attempt to use it for the purpose of maintaining title is a fraud upon the defendant, and the plaintiff would not be entitled to recover. Answer: Affirmed. [7]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions ; (4-7) above instructions, quoting them.

      Clarence Walker, with him J. W. Lee, Eugene Mackey and Boss Reynolds, for appellant.
    The pleadings must allege, and the evidence establish, that the written instrument was signed on the strength of the alleged contemporaneous parol agreement, that is, that the alleged contemporaneous parol agreement was the inducement for the signing of the written instrument, and without it tire written instrument would not have been signed: Phillips v. Meily, 106 Pa 536; Kaufmann v. Friday, 201 Pa. 178 ; Martin v. Berens, 67 Pa. 459 ; Callan v. Lukens, 89 Pa. 134 : Lippincott v. Whitman, 83 Pa. 244; The Commonwealth Title, etc., Co. v. Folz, 19 Pa. Superior Ct. 28.

      Orr Buffington and S. F. Bowser, with them O. W. Gilpin and Bush Fullerton, for appellees.
    -The evidence of previous conversations was admissible under the circumstances : Honesdale Glass Co. v. Storms, 125 Pa. 268; Rinesmith v. Railway Co., 90 Pa. 262; Renshaw v. Gans, 7 Pa. 117; Juniata B. & L. Assn. v. Hetzel, 103 Pa. 507 ; Commonwealth v. Julius, 173 Pa. 322; Bartley v. Phillips, 179 Pa. 175 ; Atherholt v. Hughes, 209 Pa. 156.
    Where an attempt is made to use a written instrument in violation of an oral agreement, contemporaneous with its execution, a legal delinquency attaches to the attempted abuse of the writing, sufficient to subject it to the influence of oral evidence : Rearich v. Swinehart, 11 Pa. 233; Chalfant v. Williams, 35 Pa. 212; Horn v. Brooks, 61 Pa. 407; Davidson v. Young, 167 Pa. 265 ; Williams v. Kerr, 152 Pa. 560.
    January 2, 1906 :
   Opinion by

Mr. Justice Mestrezat,

This is an action of ejectment to recover possession of a tract of land in Armstrong county for oil and gas purposes. Both defendants filed an answer and abstract of title under the Act of May 8, 1901, P. L. 142. The answer of the defendant company, and in this respect the answer of the defendant Barker, is substantially the same, avers, inter alia, as follows: “ that contemporaneously with the execution and delivery of the alleged lease of Barker to plaintiff’s alleged assignor and as part of the alleged contract, T. W. Phillips Sons & Company entered into a parol contract with said Barker whereby said partnership accepted the said alleged lease, subject to the existence and continuance of respondent’s lease and whereby said partnership agreed to at once return said alleged lease to Barker and cancel the same and that the same should thereupon and ipso facto be and become null and void in the event of the respondent’s claiming or continuing to claim title under its said lease or upon its proceeding to operate the same. Respondent avers that immediately thereafter it claimed exclusive title to the promises for oil and gas purposes and immediately proceeded to and did drill a well producing natural gas in paying quantities, and that the said firm thereupon violated said parol contract, refused to return said alleged lease, refused to cancel the same and treat it as null and void as they had obligated themselves so to do.”

The correctness of this averment was the issue in the case.

If it was true, and the jury so found, the plaintiff company’s lease had no validity and the company was not entitled to the possession of the premises in controversy. Whether the Plate Glass Company’s lease, assigned to it by Runyon, was still legally in force and effective against Barker was immaterial in this issue. It would be important in a contest between that company and Barker for the possession of the premises, but not here, where the plaintiff company relies upon a lease from Barker to sustain its right to drill and operate for oil and gas on the land. If Barker chose to continue the Runyon lease, as his receipts of the rentals conclusively show he did, although it may, by its terms, have expired, he could do so, and if the Phillips company took a subsequent lease, which was, by a contemporaneous agreement, to be null and void in the event of the plate glass company “ claiming or continuing to claim title under its said lease or upon its proceeding to operate the same,” then the attempt of the Phillips company to assert the validity of its lease in direct opposition to this agreement is a fraud upon Barker which he and those claiming under him with his consent may successfully resist.

That the defendants could set up as a defense to this action the parol agreement made contemporaneously with the plaintiff’s written lease of March 16, 1904, is clear under all our cases. If the plaintiff company refused to surrender the lease for cancellation in violation of its parol agreement and asserted its right to the possession of the premises by virtue of the instrument, it was a fraud upon Barker, the lessor, and an attempt to make a fraudulent use of the lease. Parol evidence will be received in such cases to defeat the fraud. In Rearich v. Swinehart, 11 Pa. 233, it was held that when an attempt is made to use a written instrument in violation of an agreement accompanying its execution, to which attempt no moral guilt can be imputed, a legal delinquency attaches to the attempted abuse of the writing, sufficient to subject it to the influence of oral evidence. The case of Davidson v. Young, 167 Pa. 265, was an issue between the obligee and obligor of a bond in which a contemporaneous parol agreement was set up as a defense. It was there held that the trial court committed no error in charging the jury that if the parties entered into that arrangement, although there was no fraud, accident or mistake, and the obligee after-wards undertook to use the bond for a purpose that was not contemplated, and contrary to the agreement of the parties at the time the bond was executed, that the obligor would be entitled to recover, for such use of the bond would be a fraud. In Honesdale Glass Co. v. Storms, 125 Pa. 268, Mr. Justice Green, delivering the opinion of the court, says (p. 278) : “ In that aspect of the case (setting up a written contract in violation of a parol promise) it comes, within the very numerous decisions of this court which hold substantially that when the execution of an instrument has been obtained by means of a fraud, or where there has been an attempt to make a fraudulent use of the instrument, in violation of a promise or agreement made at the time the instrument was signed and without which it would not have been executed, parol evidence may be given to prove the fraud, though it contradict the written instrument.” Many decisions of this court are cited in the opinion' to sustain the principle.

The assignments alleging error in admitting the testimony of certain witnesses cannot be sustained. The testimony was not received for the purpose of establishing an agreement prior to the date of the execution of the Phillips lease, but as corroborative of the testimony adduced to show the parol agreement between the parties made contemporaneously with the written lease. For this purpose it was competent: Rinesmith v. Peoples’ Freight Railway Company, 90 Pa. 262; Pyroleum Appliance Co. v. Williamsport Hardware, etc., Co., 169 Pa. 440 ; Hinchcliffe v. Koontz (Ind.), 16 Am. St. Rep. 403.

The judgment is affirmed.


author: Mr. Justice Brown,

text:
    McCausland’s Estate.

      Marriage — Common-law marriage — Evidence—Legitimation of child — Husband and wife.

    ’ Where the father and mother of a child, six weeks after the birth of the child, agreed with each other in Colorado to become husband and wife, and to live together in that relation until parted by death, and thereafter continued to live together as man and wife, holding themselves out to the world as such, the contract of marriage thus entered into legitimated the child not only in Colorado, but also in Pennsylvania.

      Evidence — Death—Absence—Presumption of death — Marriage.
    Where a married man disappears and is not heard of for seven years a presumption arises that he is dead, but there is no presumption as to the time when during the seven years his death actually occurred; and if his wife marries within the seven years, and there is no proof of the actual date of the death, the presumption is in favor of legitimacy, and in favor of the validity of the second marriage as not having occurred prior to the death of the absent husband.
    Argued Oct. 10,1905.
    Appeal, No. 147, Oct. T., 1905, by Jane B. Stuart, from decree of O. C. Westmoreland Co., Aug.T., 1904, No. 63, distributing Estate of Anna McCausland, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from distribution of estate. Before Steel, P. J. The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      V. E. Williams, with him A. M. Sloan and W. E. Wegley, for appellant.
    The legitimacy of the claimant is to be determined by the law of Pennsylvania, and not by the law of Colorado : Smith v. Derr, 34 Pa. 126.
    Adoption by Jacob W. McCausland, or legitimation by act of the legislature, cannot enable the claimant to take as a purchaser, under a limitation in the last will of Ann MeCausland : Edwards’ App., 108 Pa. 283 ; Schafer v. Eneu, 54 Pa. 304.
    The claimant is not the legitimate son of Jacob W. McCausland, begotten or born in lawful wedlock: Thomas v. Thomas, 124 Pa. 746 ; Heffner v. Heffner, 23 Pa. 104; Dennison v. Page, 29 Pa. 420; Kleinert v. Ehlers, 38 Pa. 439; Janes’ Estate, 147 Pa. 527 ; Goodright v. Moss, 2 Cowper, 591; King v. Inhabitants of Kea, 11 East, 132; Tioga County v. South Creek Twp., 75 Pa. 433.
    The relation between claimant’s mother and Jacob W. Mc-Causland being admittedly illicit in its inception, a subsequent marriage will not be presumed in the absence of proof of an actual marriage : Reading Fire Ins. & Trust Co’s. App., 113 Pa. 204; Grimm’s Est., 131 Pa. 199 ; Hunt’s App., 86 Pa. 294; Com. v. Stump, 53 Pa. 132; Hantz v. Sealy, 6 Binney, 405.

      W. S. Byers, with him J. A. O. Ruffner, for appellee.
    If there was a-marriage, actual or reputed, between the ward’s parents, either prior or subsequent to his birth, valid and legal in the state of Colorado, the place of their domicile, he is legitimate : Taylor v. Taylor, 10 Colo. App. 303 (50 Pac. Repr. 1049) ; Yardley’s Estate, 75 Pa. 207; Com. v. Stump, 53 Pa. 132.
    No formal ceremony of marriage, in facie ecclesise is necessary to consummate the contract of marriage : Israel v. Arthur, 18 Colo. 158 (32 Pac. Repr. 68) ; Poole v. The People, 24 Colo. 510 (52 Pac. Repr. 1025) ; Henry v. McNealey, 24 Colo. 456 (50 Pac. Repr. 37) ; Lampion v. Insurance Co., 11 Colo. App. 249 (52 Pac. Repr. 1040).
    Under the circumstances, even if the marriage were originally void, a subsequent marriage would be presumed to have occurred after the removal of all legal impediments : In re Edwards, 58 Iowa, 431 (10 N. W. Repr. 793) ; Poole v. The People, 24 Colo. 510 (52 Pac. Repr. 1025). The presumptions of law arising in the case at bar are sufficient to establish the legitimacy of the claimant without direct proof of the actual marriage of his parents : Senser v. Bower, 1 P. & W. 450; Vincent’s App., 60 Pa. 228; Oliver’s Estate, 184 Pa. 306.
    In all countries where marriage is a civil contract, the courts, in favor of a second marriage, will often presume the death of a prior husband or wife, when not heard from for a much less period then seven years and will also presume a previous divorce in order to sustain the second marriage.
    The presumption in favor of innocence and against immorality and vice is so strong, as to give rise to the presumption of marriage : Rex v. Inhabitants of Twyning, 2 B. & Ald. 386 ; Kelly v. Drew, 94 Mass. 107; Harris v. Harris, 8 Ill. App. 57 ; Commonwealth v. Boyer, 89 Mass. 306 ; Greenborough v. Underhill, 12 Vt. 604; Johnson v. Johnson, 114 Ill. 611 (3 N. E. Repr. 232) ; McCarty v. McCarty, 2 Strob. 6.
    January 2, 1906:
   Opinion by

Mr. Justice Brown,

This is an appeal from the decree of distribution in the estate of Anna McCausland, deceased. By the seventh clause of her will she devised to her daughter, Jane B. Stuart, the appellant, and to her son, Jacob W. McCausland, the rents, issues and profits issuing from her real estate in Greensburg and provided that, “if either one survive the other then during the lifetime of the one surviving one half to him or her and the other half to the child or children of the one deceased.” Jacob W. McCausland, the son, died on January 18, 1903, and one-half of the fund in the hands of the accountant is now claimed by The Safe Deposit and Trust Company of Greensburg, Pennsylvania, guardian of Jacob Welty McCausland, found by the court below to have been the legitimate son of Jacob W. MeCausland, the son of the testatrix. The legitimacy of the ward of the appellee is the single question before us.

The court below having found the boy to be the legitimate son and only child of Jacob W. McCausland, deceased, awarded his guardian one-half of the fund brought before it for distribution. We are not asked by any of tbe assignments to say that error was committed in receiving the testimony of witnesses, upon which the court’s findings were based, but it is urged that from this testimony there ought to have been a finding that the ward of the appellee was not the legitimate child of the son of the testatrix, and, therefore, not entitled to a portion of her estate under the seventh clause of her will.

Elizabeth McCausland, the mother of Jacob Welty McCausland, found by the court below to have been the lawful wife of Jacob W. McCausland, the son of testatrix, was the daughter of John and Sarah M. Evans, and prior to March 26, 1882, had lived with her mother at Hannibal, Missouri. On that day, when she was about twenty-five years of age, she was married to one John E. Rodgers, and lived with him until sdme time in the year 1884. The findings of the court below are, that during this period Rodgers frequently told her she was not his wife, as they had not been legally married, because the man who performed the ceremony was not an alderman or justice of the peace; that on August 3, 1885, she saw him at the Union Depot, in the city of Denver, for the last time, since which date he has never'been heard of by any one connected with or interested in this case; that she then went to Hannibal, Missouri, on a visit to her mother, and, returning in about a month, took up her residence, in September, 1885, with Jacob W. McCausland, the deceased son of the testatrix; that she and he lived together continuously until his death, January 18, 1903; that she gave birth to a son, the ward of the appellee, on March 4, 1887; that this child was called Jacob Welty McCausland, and was recognized by Jacob W. McCausland, deceased, as his son; that about six weeks after the birth of the child she and the said Jacob W. McCausland agreed with each other to become husband and wife and to live together in that relation until parted by death; that they did continue to live together as husband and wife, she performing all the duties of a wife to him and of a mother to the boy; that Jacob W. McCausland introduced her as his wife; that telegrams, by his direction, were addressed to her as Mrs. Jacob McCausland ; that he had himself registered as a married man in the city of Denver, Colorado, and they were known and recognized in the community where thej’ lived as husband and wife; that the boy was always recognized by him as his son, and, at his death, by his will he named and acknowledged Elizabeth McCausland as his wife and Jacob Welty McCausland as his son, and gave all of his property to them as such.

It is conceded, first, that by the laws of Colorado, the common-law marriage prevails there just as it does in this state ; second, that there is a presumption there, as well as here, of the death of a person who has been absent and unheard of for seven years; and, third, that the subsequent marriage of the parents of children legitimatizes those born prior to the marriage. The 7th section of chapter XXVIII of the general statutes of the state of Colorado provides that, “ illegitimate children shall inherit the same as those born in wedlock, if the parents subsequently intermarry, and such children be recognized after such intermarriage by the father to be his.” Our Act of May 14, 1857, P. L. 507, is of similar import. It is: “ In any and every case where the father and mother of an illegitimate child or children shall enter into the bonds of lawful wedlock and cohabit, such child or children shall thereby become legitimated, and enjoy all the rights and privileges as if they had been born during the wedlock of their parents.”

That the marriage of Jacob W. McCausland to Elizabeth Rodgers was valid, if she were not under a disability existing from her marriage to John E. Rodgers, who might still have been alive, cannot be questioned. It was not only valid in Colorado, where they agreed to become husband and wife, but it would have been valid if entered into here as it was there, and the law of neither state puts the brand of bastardy upon their issue. When their babe was six weeks’ old they agreed to become husband and wife, and to live together in that relation until death should part them. From that moment, if they were competent to make the solemn compact, their babe was no longer the son of no one, but the child of parents wedded as lawfully as if their marriage had been solemnized by^pomp and religious ceremony; and their simple vows, made over a cradle, were kept to the end. The father, on January 10, 1903 — but eight days before his death — declared in his will that Elizabeth McCausland was his beloved wife and that Jacob W. McCausland was his son.

When Jacob Welty McCausland was born, on March 4, 1887, John E. Rodgers had not been seen or heard from for a period of nineteen months. He was last seen on August 3, 1885 ; so that on August 3, 1892 — seven years afterwards— he was presumed to be dead. For nearly eleven years after that date the woman he had married continued to live as the wife of Jacob W. McCausland, without hearing anything from him of about him, and up to the day of the audit in the court below nothing had been heard from him. By the laws of Colorado and this state he was presumed to be dead on August 3, 1892. Even if Elizabeth McCausland had been under disability before that day to enter into a lawful marriage contract with Jacob W. McCausland, it then presumptively disappeared, and thereafter,' in the absence of proof that her former husband was living, she could become the lawful wife of Jacob W. McCausland. Though seven years must elapse before the presumption of death arises, when this period does elapse there is no presumption as to the time when, during the seven years, the death of the absent party actually occurred, and, therefore, to help the presumption of innocence or legitimacy, there is no presumption that it occurred after the second marriage, but rather that it occurred before. Semper prassumitur pro matrimonio. This is, of course, but a presumption to be rebutted by proof of the actual date of the death; but in the absence of such proof, with the presumption in favor of legitimacy, the presumption is in. favor of the validity of the second marriage as not having occurred prior to the death of the absent husband: 1 Greenleaf on Evidence, sec. 41; 1 Bishop on Marriage and Divorce, secs. 949-953; Senser et al. v. Bower et ux. 1 P. & W. 450 ; Pickens’s Estate, 163 Pa. 14. Under the facts found, the only conclusion that could be arrived at was reached by the learned judge of the court below, and his decree is affirmed and the appeal dismissed, at the.cost of the appellant.


author: Mr. Chief Justice Mitchell,

text:
    Silver, Appellant, v. Bush.

      Deed — Grant—Scope of grant — Mineral—Definition.
    The cardinal test of the meaning of any word in any particular caso is the intent of the parties using it.
    Mineral is not per se a term of art or of trade but of general language, and presumably is intended in the ordinary popular sense which it bears among English speaking people. It may in any particular case have a different meaning, more extensive or more restricted, but such different moaning should clearly appear as intended by the parties.
    A deed granted certain “pieces or parcels of land .... together with all and singular the improvements, ways, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversion and remainders, rents, issues, and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever, of the said parties of the first part,” and the habendum in the deed was “to have and to hold the said piece or parcel of land except the mineral underlying the same and the right of way to and from said mineral which the first parties reserve.” There was no evidence that the parties intended that the word “mineral” in the deed should include natural gas. Held, that the grantee took the natural gas under the deed.
    Argued Oct. 11, 1905.
    Appeal, No. 190, Oct., T., 1905, by plaintiffs, from order of C. P. Armstrong Co., March T., 1905, No. 110, refusing to take off nonsuit in case of Mary Silver et al. v. IT. G. Bush and the Pittsburg Plate Glass Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass for injuries to land. Before Patton, P. J.
    At tbe trial it appeared that on May 8, 1891, Stephen A. Forrester conveyed to Ulysses G. Bush a certain tract of land in South Buffalo township, Armstrong county, containing forty-five acres and seventeen perches, to have and to bold tbe same, “ except the mineral underlying the same, and the right 'of way to and from said mineral, wbicb tbe said parties reserve.” Tbe plaintiffs are the successors in title to Stephen A. Forrester, and under tbe above-quoted reservation claimed tbe right to take tbe natural gas from under tbe land of the defendants. The defendants are the grantees in said deed and those claiming under him, and deny that under the above reservation natural gas is excepted.
    Other facts appear by the opinion of the Supreme Court.
    The court refused plaintiffs’ offer to prove that natural gas was being drilled for in the surrounding territory at and prior to the date of the deed.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Errors assigned were (1) refusal to take off nonsuit; (2, 3) rulings on evidence, quoting the bill of exceptions.

      W. J. Christy, with him James U. McCain, for appellant.—
    The appellants contend that the natural gas, as well as all other minerals, underlying the Stephen A. Forrester farm, the surface of which was conveyed to Mrs. Libengood, E. E. Bush and U. G. Bush, was excepted and reserved to said Forrester: Shoenberger v. Lyon, 7 W. & S. 184 ; Hendler v. R. R. Co., 209 Pa. 256 ; Northern Pac. R. R. Co. v. Soderberg, 188 U. S. 526 (23 Sup. Ct. Repr. 365) ; Griffin v. Fellows, 81* Pa. 114; U. S. v. Buffalo Nat. Gas Fuel Co., 172 U. S. 339 (19 Sup. Ct. Repr. 200); Gill v. Weston, 110 Pa. 312; Blakley v. Marshall, 174 Pa. 425 ; Marshall v. Mellon, 179 Pa. 371; Light & Heat Co. v. Elk Co., 191 Pa. 465 ; Jennings v. Bloomfield, 199 Pa. 638.

      Orr Buffington, with him O. IF". Gilpin and Bush Fullerton, for appellees,
    cited: Dunham v. Kirkpatrick, 101 Pa. 36; Hendler v. R. R. Co., 209 Pa. 256 ; Westmoreland, etc., Nat. Gas Co. v. DeWitt, 130 Pa. 235; Dark v. Johnston, 55 Pa. 164; Funk v. Haldeman, 53 Pa. 229.
    January 2, 1906:
   Opinion by

Mr. Chief Justice Mitchell,

The conveyances to the defendants were of certain “pieces or parcels of land .... together with all and singular the improvements, ways, water's, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever, of the said parties of the first part,” and the habendum in each deed is “ to have and to hold the said piece or parcel of land except the mineral underlying the same and the right of way to and from said mineral which the first parties reserve.” It is argued that the grantees took only an estate in the surface for agricultural and other strictly surface purposes, and that all minerals of every kind underlying the surface were excepted from the grant. But it is manifest that no such narrow construction can be sustained. The grant is of the land, and the additional words used are of the most comprehensive character, including all estates, interests and rights in the land. Nothing whatever would have been left in the grantors were it not for the reservation in the habendum, and that is of “ the minerals underlying the same, and the right of way to and from ” the same. The reservation must be read in its connection, and cannot be given a construction as extensive as the grant, for then it would be void for repugnancy. Even in a case where the grant was in terms only of the surface of the land, reserving “ all coal and other minerals,” it was held that the grantee took the entire fee, to use for all purposes except mining or taking the excepted minerals or interfering with the grantor’s reserved right to do so: Hendler v. Lehigh Valley ft. R. Co., 209 Pa. 256.

This court has had rather frequent occasion to consider the word mineral, and to define its meaning in different connections. A number of cases are cited by appellant in which it has been decided that petroleum and natural gas are minerals. Of the fact that under the broad division of all matter into the three classes of animal, vegetable and mineral, petroleum and gas are minerals, there has never been any room for question, and even under some more restricted classifications the same result may be reached. But, on the other hand, it has also been held that in other connections they are not included under that term. There is no discrepancy in the cases. The variations in the scope of the word arise from the connection and application in which it is used.

The crucial question here, as in all contracts, is what was the sense in which the parties used the word. Mineral is not per se a term of art or of trade, but of general language, and presumably is intended in the ordinary popular sense which it bears among English speaking people. It may in any particular case have a different meaning, more extensive or more restricted, but such different meaning should clearly appear as intended by the parties. A very recent discussion of the subject was had in Hendler v. Lehigh Valley R. R. Co., 209 Pa. 256, where it was shown that while the word mineral has a very broad meaning, already alluded to, and also a more restricted scientific use, it has also a commercial sense in which it is most commonly used in conveyances and leases of land, and in which it may be presumed to be used in such instruments. In that sense it may include any inorganic substance found in nature having sufficient value separated from its situs as part of the earth to be mined, quarried or dug for its own sake or its own specific uses. But, though it may include all such substances, it does not necessarily do so. Appellant cites the case as authority for the view that whatever comes within the terms of that description must necessarily be included under the word mineral. But this is an untenable inference. That decision announced no new principle, nor any departure from the line of previous decisions. As already said there is no discrepancy in the cases. The cardinal test of the meaning of any word in any particular case is the intent of the parties using it, and all that Hendler v. R. R. Co. did was to apply that test to the word mineral in the deeds on which the case turned. The substance there in question was sand, and it was shown that it might or might not be within the definition of mineral in the commercial sense, according to the circumstances and the intent of the parties.

In the present case the question arises in respect to natural gas, the plaintiff claiming that it was included in the reservation of “ the mineral underlying ” the land conveyed. Certainly such gas is a mineral in the broadest sense of the term, but no evidence was given or offered to show that the parties so understood or intended the word mineral, or even that it had acquired a usage in conveyancing which would include gas. In Dunham v. Kirkpatrick, 101 Pa. 36, it was expressly held that petroleum was not included in a reservation of “ all minerals,” the court saying, “ In popular estimation petroleum is not regarded as a mineral substance, and can only be so classified in the most general or scientific sense. How, then, did the parties to the contract think and write ? As scientists, or as business men, using the language and governed by the ideas of everyday life ? ” It was held, therefore, that petroleum was not within the intent of the parties in reserving the minerals. And, a fortiori, natural gas would not be so included. This decision was part of the law of the state when the deeds in question were made, and to some extent at least, as was said by the learned judge below, it had become a rule of property on which many titles in western Pennsylvania rested. To take any case out of its operation the evidence should be clear and convincing that the parties used the words in a different sense. The only effort of the appellants in that direction was apparently based on the view of Hendler v. R. R. Co., already referred to, that any substance mined or extracted from the land for'its own sake is necessarily included in the word mineral. Under this view offers were made to show that at the date of the deeds the land in that vicinity was already being developed for natural gas, which was known as a marketable commodity. These offers, however, even if proved, were not evidence that the parties used the term mineral in the sense contended for. They could only be ground for inference that the parties might have so intended, while on the other hand the offers themselves implied that the including of gas under the term mineral would be a new use of the term, and the inference would be strong that if the parties intended to include gas they would have said so expressly. The offers, therefore, were properly excluded.

Judgment affirmed.


author: Per Curiam,

text:
    Cunningham, Appellant, v. Wallace.

      Partition — Master—Compensation—Discretion of court — Appeals.
    The Supreme Court will not reverse a decree of the court below fixing the fee of a master in partition, where it is not convinced that there has been any abuse of the discretion of the lower court.

      Argued Ocü. 18, 1905.
    Appeal, No. 42, Oct. T., 1905, by plaintiff, from decree of C. P. Lawrence Co., June T., 1901, No. 3, on bill in equity in partition in case of J. P. H. Cunningham and S. W. Cunningham v. Caroline C. Wallace et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for partition.
    Wallace, P. J., filed the following opinion :
    This case came before me on exceptions to compensation of master.
    It was fixed by tlie court at 14,500, when plaintiffs claimed it was excessive and fixed without notice to them ; the matter was referred to the master to be considered by him in his distribution of the fund.
    The master reported the same amount,whereupon exceptions were filed before-him and are now renewed in court, the ex-ceptants representing about one-half of the estate.
    The services in this case were of a very complicated nature, requiring not only skill and ability as a member of the bar, but the exercise of more than'ordinary care and involving considerable labor and responsibility.
    The master performed all the duties imposed upon him faithfully and well and to the satisfaction of all the parties interested. Their own agreement says : “ The entire partition and all the various proceedings therein, and the execution by the master of the decree appointing him are satisfactory and are hereby duly approved.”
    The master awarded two purparts to two of the heirs at their bid of $6,472, and advertised all the remaining purparts for sale at public outcry as directed by law and order of court, and sold at public sale several of the purparts for $125,910.50, and at the instance of the parties in interest adjourned the sale of the remainder from time to time, until the heirs entered into an agreement by the terms of which each of the heirs agreed to take certain of the purparts at certain prices and that the master should report as sold at public sale. This was in effect a private sale to the several parties for $35,467.
    His service and. responsibility extended to the entire property which was so sold by him. The total amount distributed by him, and for which he was responsible was $167,849.50, his fees were fixed a little more than f of 5$.
    It was agreed for exceptants that he should only be allowed commission upon the property actually sold at public sale. This amounted to $125,910.50, and if we should allow commissions on that alone, and in addition compensation for the labor, care, skill and ability, outside of these public sales, it would aggregate more than the amount we have allowed him; without going into details, however, our knowledge of this case, and of all the proceedings satisfies me that the amount is not excessive but upon the contrary is a reasonable compensation.
    Now, December 81, 1904, the exceptions are therefore dismissed and the adjudication fixing the master’s fees at $4,500 is confirmed absolutely and it is ordered, adjudged and decreed that said amount be retained by him out of the moneys of the estate in his hands.

      Error assigned was the decree of the court.

      S. W. Eana, with him Robert K. Aiken and O. H. Akens, for appellant.

      James A. Q-ardner, for appellee.
    January 2, 1906:
   Per Curiam,

The services of the master were familiar to the court below, and he was in better position to judge as to the proper compensation than we can be. We have not been convinced that there was any abuse of his discretion, and the judgment is therefore affirmed on his opinion.


author: Mr. Justice Stewart,

text:
    Smith v. Hibbs, Appellant.

      Ejectment — Proceeding to quiet title — Act of June 10, 1893, P. L. 415.
    Where a person is in the occupancy of land under a contract based upon a valuable consideration with the owner, that the latter shall will it to the occupant, and the owner in violation of the contract conveys the land to another for life with remainder over to other parties, and then dies, the occupant may proceed under the Act of June 10, 1893, P. L. 415, and if he serves both the life tenant and the remainder-man with notice of the proceedings, a judgment in favor of the occupant in the resulting ejectment, will bar not only the life tenant, but also the remainder man, and vest a good title in fee simple in the occupant.
    Argued Oct. 18, 1905.
    Appeal, No. 185, Oct. T., 1905, by defendant, from judgment of C. P. Greene Co., Sept. T., 1905, No 53, for plaintiff on case stated in suit of William D. Smith y." George L. Plibbs, Joseph E. Barnes and James R. Barnes.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine title to real estate. Before CrawEORD, P. J.
    The facts appear by the opinion of the Supreme Court.
    The court entered judgment for plaintiff.

      Error assigned was the judgment of the court.

      Thomas S. Orago, for appellant.

      J. B. Donley, with him D. S. Walton, for appellee,
    cited Delaware & Hudson Canal Co. v. Genet, 169 Pa. 343.
    January 2, 1906 :
   Opinion by

Mr. Justice Stewart,

This is an action for the purchase money of real estate. The defense set up is that the title tendered is not marketable. The following facts appear in the case stated, and they are all that need be repeated here.

The appellee, William D. Smith, being in possession, and claiming to be the owner of the tract of land which is the subject of the contract of purchase, in September. 1903, began a proceeding under the Act of June 10,1893, P. L. 415, to quiet his title to this land; in which proceeding the grantees, in a recorded deed of conveyance for the same premises, from David Shoyer, under date of November 4, 1897, were made respondents. Smith’s claim of ownership of the land was as follows: David Shoyer, Smith’s grandfather, in 1884, had agreed with Smith that if the latter would abandon his trade, and live with and care for Shoyer and his wife, he, Shoyer, would buy a farm on which they would live together, and “ when Shoyer and his wife were gone or deceased,” the farm should belong to Smith, Shoyer to make a will devising said farm to Smith in fulfillment of the contract. Pursuant to this ageement, Shoyer bought this tract of laud, the parties named moved thereon, and continued to reside there together until the death of Shoyer’s wife in September, 1897. Shoyer, according to his agreement, on March 16, 1887, executed a will devising the farm to Smith. Shortly after he went to reside with his son, George, and while there, on November 4, 1897, he executed and delivered a conveyance of this same land “ to his son, George B. Shoyer, for life, and at his death to his wife, Elizabeth Shoyer, if she survive him, and remain his widow, to her for life, and at her death or upon remarriage, then the reversion and remainder to the use of Edward C. Shoyer and John Shoyer, children of the said George B. Shoyer and Elizabeth Shoyer, in equal shares, in fee simple, to them, their heirs and assigns forever: ” which conveyance was recorded on November 26, 1897 in the recorder’s office of Greene county.

Pursuant to the prayer in Smith’s petition, a rule was granted on the grantees under said conveyance, to answer said petition within twenty days from service of the rule; and said parties, to wit: George B. Shoyer, Elizabeth Shoyer, Edward C. Shoyer and John Shoyer, were duly served with said rule, and with notice to appear and answer at a day named in the notice. There was no appearance to this rule, and Smith, on April 18, 1904, prayed the court to award an issue to determine the title to said tract of land; and on the same day an issue was awarded as prayed for, the said George B. Shoyer, Elizabeth Shoyer, Edward C. Shoyer and John Shoyer being made the plaintiffs, and William D. Smith, defendant in the action, which was the same day entered as an action of ejectment in the court of common pleas of Greene county to No. 134, May Term, 1904. The plaintiff's entered no appearance in said action, and no answer was filed by them or either of them. On November 22, 1904, the case was called, the jury sworn, and verdict rendered for the defendant for the premises described. Judgment was duly entered on the verdict on December 6,1904, and no appeal has been taken therefrom. Title to the land in question is admitted in David Shoyer, subject to the equities of the said William D. Smith; and it is admitted that William D. Smith fully complied with all the terms of his contract with the said David Shoyer.

The question here presented, and the only one, is — does the verdict obtained by William D. Smith, in the issue to No. 134, May Term, 1904, in common pleas of Greene county, conclude the plaintiffs therein, the grantees named in the deed from David Shoyer, under date of November 4, 1897, from asserting their title to the land under said deed ?

No reason is suggested, and none is apparent why it should not have this effect. We do not understand that its conclusiveness upon George Shoyer, the present life tenant, is questioned, since, were his title good, his right of possession would follow and he could maintain ejectment to enforce it.

The suggestion is made, that inasmuch as the other parties defendant in the issue were remainder men, and not in position to assert their title as against the party in possession, the case might be different as to them. This suggestion springs from the supposed analogy between the proceedings contemplated by the Act of June 10,1893, P. L. 415, and an equitable ejectment action. True, in Ullom v. Hughes, 204 Pa. 305, it is said, referring to this act to quiet title, that the act expressly assimilates the proceeding to an equitable ejectment; but it does not result from this, that the scope and purposes of the act, are to be narrowed by the application of the principles and rules which govern in ejectments. Indeed, in the case just cited, it is expressly said, that the act does not give a new right enforceable only in the prescribed way, but merely a new remedy for a right always existing, to defend title and possession. It is further held, that the old remedies were not done away with by the act, but that the remedy provided was added.-|or still greater convenience in certain cases to which it could be applied. The purpose of the act as expressed in the enactment, is to quiet title. Before its passage the remedy, in such cases, was by bill in equity, and that a court of equity had jurisdiction to give the same relief that is contemplated by the act cannot be questioned. In Stewart’s Appeal, 78 Pa. 88, discussing the rule in equity in such matters, Chief Justice Sharswood says: “ The best expression of the rule, it seems to me, is to bo found in the opinion of the Supreme Court of Massachusetts, in Martin v. Graves, 87 Mass. 601, by Merrick, J., ‘ Whenever a deed or other instrument exists, which may be vexatiously or injuriously used against a party, after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect or maintain his right by any course of proceedings at law, a court of equity will afford relief by directing the instrument to be delivered up and can-celled, or by making any other decree which justice or the rights of the parties may require.’ ”

The equitable proceeding was available not to quiet possession, but title; and it was never suggested that such remedy could be employed only as against those having a right of entry. It was directed against the adverse title by whomsoever asserted, and its object was to remove such title in some manner appropriate to the end sought.

While, as remarked in Ullum v. Hughes, 204 Pa. 805, equity thus came to the aid of the party in possession, who was threatened by an adverse title, the assistance was limited and’not always adequate. Here we find as well the occasion for and purpose of the act of 1898. In Delaware & Hudson Canal Company v. G enet, 169 Pa. 343, both were considered and it is there said of the act, “ It was intended to give a party in possession the right and opportunity to institute a proceeding to test his title as against an adverse claimant. At common law the adversary might lie by concealed or quiet, and choose his own time for the contest, subject only to the risk that the statute of limitations might shut him out. The party in possession could do nothing but await the attack. Equity came to his aid by “ bills to perpetuate testimony, to quiet title, etc., but this assistance was limited and not always adequate. In this state the Act of May 21, 1881, P. L. 24, gave the party in possession the further light, as against an adversary who had once asserted his claim in an ejectment, to rule him to bring his further action or be barred. The party in possession is no longer bound to await the attack, but may act on the offensive and bring on the battle at once.” :

The general words employed in the act indicate a purpose to provide a remedy for the speedy settlement and determination of all cases where the right of any person in possession of lands “ shall be disputed or denied by any person or persons aforesaid.” Just what restriction, if any, can be derived from the use of the word “ aforesaid,” is not apparent; but it' is very certain that nothing that precedes it in the text gives any warrant for the restriction here suggested. Accepting the purpose of the act to be what this court, in every case in which it has been considered, has held it- to be, the word “ aforesaid ”■ as it occurs, can only be considered surplusage and nothing more.

If, then, in the issue tried, the court had jurisdiction of the parties — and upon the facts as they appear in the case stated, we are of opinion that it had — it necessarily results that the parties who were plaintiffs therein and defeated, are concluded with respect to the claim in that issue adjudicated ; since the act provides that “ the verdict of the jury in such issue shall have the same force and effect upon the right and title, and right of possession of the respective parties in and to the said land as a verdict in ejectment upon an equitable title.”

Judgment affirmed.