text:
    Battenfeld v. Kline, Appellant.

      Will — Construction—Conversion of realty into personalty — Vested and contingent interest — Power of sale.

    1. Testatrix gave “all the rest, residue and remainder” of her estate, “real, personal and mixed” to her executor in trust, to collect the interest, rents, issues, profits and income and to pay over the net balance of the same to her husband during his life. She further directed that “at and immediately upon the death” of the husband, the estate “shall be divided in equal shares between such of the children” of the testatrix and her husband “as shall then be living” — naming the children and providing that “if any one or more of the said children shall then be dead leaving issue, such issue shall stand in the place of and be entitled to the share to which such child would have been entitled if such child had survived .... in such manner and in such proportion as said issue would inherit the same if such child had died intestate, seized or possessed thereof.” She gave the executor power to sell the realty “at any time” at private or public sale, and to convey, to hold or reinvest the proceeds in real estate subject to the same trusts, etc., with the proviso that none of the real estate be sold during the husband’s lifetime save by his written consent evidenced by his joinder in the conveyance. Held, (1) that no interest passed to the children in the realty as such; (2) that the testatrix contemplated the exercise of the power of sale after her husband’s death; (3) that an administrator d. b. n. c. t. a. of the decedent could sell the real estate and give a good title in fee simple.
    2. Conversion of realty into personalty is affected (1) by a positive direction to sell the land, which is an express declaration of intention to convert, (2) by an absolute necessity to sell in order to execute the will, and (3) by such a blending of realty and personalty by a testator in his will as to clearly show that he intended to create a fund out of both real and personal estate and to bequeath that fund as money, in both of which latter cases there is an irresistibly implied declaration of intent to convert.
    Argued Feb. 28, 1910.
    Appeal, No. 384, Jan. T., 1909, by defendant, from judgment of C. P. Berks Co., Aug. T., 1909, No. 60, for plaintiff on case stated in suit of Louis Battenfeld, administrator d. b. n. c. t. a. of Esther J. Boas, deceased, v. Harry H. Kline.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      Case stated to determine marketable title to real estate.
    Endlich, P. J., filed the following opinion:
    This case stated involves the interpretation of the will of Esther J. Boas dated March 24, 1885, in which she disposes of an estate expressly declared to consist of both realty and personalty. In the second paragraph the testatrix gives “all the rest, residue and remainder” of her estate, “real, personal and mixed,” to her executor in trust to collect the interest, rents, issues, profits and income and pay over the net balance of the same to her husband during his fife. The next paragraph says that “at and immediately upon the death” of the husband, the estate “shall be divided in equal shares between such of the children” of the testatrix and her husband “as shall then be living,” — naming the children and providing that “if any one or more of the said children shall then be dead leaving issue, such issue shall stand in the place of and be entitled to the share to which such child would have been entitled if such child had survived .... in such manner and in such proportion as said issue would inherit the same if such child had died intestate, seized or possessed thereof.” The fourth paragraph gives the executor power.to sell the realty “at any time” at private or public sale, and to convey, to hold or reinvest the proceeds in real estate subject to the same trusts, etc., with the proviso that none of the real estate be sold during the husband’s lifetime save by his written consent evidenced by his joinder in the conveyance.
    The husband died February 5, 1909, all the children surviving him except one, who left a widow but no children or grandchildren. On March 8, 1909, the plaintiff was duly appointed administrator d. b. n. c. t. a. of Esther J. Boas, deceased, having previously been appointed trustee under the will by the orphans’ court of this county. One of the children, George D. Boas, had before the father’s death become insolvent, a receiver of his estate being appointed by the court of common pleas of Philadelphia county on October 1, 1906. By exemplification from that court a judgment had been entered against him on September 14, 1906, in this court to No. 72, September Term, 1906, which was revived on April 24, 1909, to No. 98, April Term, 1909, for $670.52. Moreover, on February 25, 1909, the receiver filed a bill in equity in this court, to No. 979, Equity Docket, 1909, for partition of the real estate left by Esther J. Boas. Beyond the filing of an answer by George D. Boas, and an agreement relieving the other defendants from presently answering, no steps were taken in that proceeding.
    On March 13, 1909, after notice by publication and posting of handbills, the plaintiff exposed to public sale the realty devised by Esther J. Boas and sold a certain part of it to defendant for $5,650, ten per cent thereof being paid down and an agreement entered into for the payment of the balance before May 1, 1909, upon the conveyance of a good title. The plaintiff has been and is ready to deliver a deed executed by himself as administrator d. b. n. e. t. a. of Esther J. Boas, deceased, But defendant demands in addition thereto a quitclaim deed from all the héirs of Esther J. Boas and from the receiver of George D. Boas, the satisfaction of the judgment to No. 98, April Term, 1909, and the withdrawal of the equity proceeding above referred to, before paying the balance of the purchase money. This action is brought to determine the right of the plaintiff to sell and the liability of defendant to pay upon receipt of the conveyance the plaintiff is able to furnish. Obviously that question depends upon whether the children were vested with any interest in the realty devised under the will, as such. This question has been argued by counsel on both sides with exhaustive learning and ability, greatly aiding the court in arriving at the answer that seems to be required in order 'to satisfy at once the purposes of the testatrix and the authorities-applicable to the terms in which they are expressed.
    If any interest at all passed to the children in the realty', it was a contingent and not a vested one. It will be noticed that whatever gift there is to the children is to such as shall survive the husband. Moreover, the only gift to them is in the direction to divide the estate among them upon the death of the husband. Separately from, antecedently to, or independently of that direction there is no gift to them at all. In such case it is well recognized that the time fixed for the division is an essential part of the gift implied in the direction for division, and that the vesting of any interest is postponed until then: 2 Jarm. on Wills, 457; 2 Williams on Executors, 1051, 1052; Magoffin v. Patton, 4 Rawle, 113; Lamb v. Lamb, 8 Watts, 184; Moore v. Smith, 9 Watts, 403; Seibert’s App., 13 Pa. 501; Bowman’s App., 34 Pa. 19; Yost’s Est., 134 Pa. 426, 434. Of course, this rule may be overborne by the addition of words of limitation, showing that the testator’s intention was that the children should take a transmissible interest; as where the gift is implied from a direction to divide among them or their heirs: Muhlenberg’s App., 103 Pa. 587. But there is no such language here. On the contrary, there is a distinct provision that, in the case of the death of any child during the life of the husband leaving issue' (living at the time of division), such issue shall get the share the child would have gotten, not indeed by way of inheritance from it, but by way of substitution “in the place of” such child.
    It would seem, however, that no interest whatever was intended to pass to the children in the realty as such; in other words, that the will worked a conversion of it into personalty, so that the judgment against George D. Boas (see Morrow v. Brenizer, 2 Rawle, 185), and the partition proceedings instituted by his receiver could have no possible effect upon the title to be conveyed by the plaintiff. Conversion of realty into personalty, it is well understood, is a question of intention expressed or implied. The rule stated in Hunt’s & Lehman’s App., 105 Pa. 128, 141, and restated in Irwin v. Patchen, 164 Pa. 51, 65, and Cooper’s Est., 206 Pa. 628, 630, is that it is effected (1) by a positive direction to sell the land,- which is an express declaration of intention to convert; (2) by an absolute necessity to sell in order to execute the will, and (3) by such a blending of realty and personalty by a testator in his will as to clearly show that he intended to create a fund out of both real and personal estate and to bequeath that fund as money; in both of which latter cases there is an irresistibly implied declaration of intent to convert. The requirement to sell, whether expressed or implied, must be unconditional, irrespective of contingencies, independent of discretion and imperative: Cooper's Est., 206 Pa. 631. But where it is clear that the provisions of the will cannot be carried out without a sale, it is not material that the language used in speaking of it is in form permissive and authoritative rather than mandatory, nor that the time of sale is postponed or left to the discretion of the executor: Severn's Est., 211 Pa. 65, 67. And so in the case of a blending of realty with personalty: Tarrance v. Reuther, 185 Pa. 279. The impossibility in such a case of making the division directed of the entire estate without a previous conversion of it into money satisfies the needful clear requirement of a sale of the realty: Laughlin’s Est., 131 Pa. 333, 336. The application of these principles, with which the decisions relied on by defendant's counsel are not in conflict, to the will here in question lies upon the surface. The second paragraph gives to the executor all of the testatrix’s “estate real, personal and mixed,” upon the trust above mentioned, obliterating all distinctions between realty and personalty. The third paragraph directs him, upon the husband's death, to “divide” her “said estate” in equal shares among the children. The “said estate” is of course the “estate, real, personal and mixed,” she spoke of in the preceding paragraph: see Klapp’s Est., 19 Pa. Superior Ct. 150, 154. There is, therefore, in this direction the same blending of realty and personalty. Nor would it be practicable to carry out this direction to “divide,” without a conversion of the whole into money. As in the will involved in Duffield v. Morris, 8 W. & S. 348, the word “divide” here manifestly means “distribute.” If it were coupled with another phrase exclusively applicable to personalty, and with directions looking towards a partition of the realty in kind, it might have a different meaning — as in Seeds v. Burk, 181 Pa. 281, where the language was “divide and pay,” and the trustee “respecting .... my real estate” was authorized to divide it into lots or parcels, etc. Here, however, the word is applied equally to personalty and realty, to money and land, and as appears by.the fifth paragraph of the will to a business the testatrix was about to enter upon. Clearly what she intended is not a division in kind but a distribution, which presupposes a conversion into money; and the direction to make that distribution is followed up with authority to sell the realty “at any time.” That this cannot be held to confer a power of sale literally without limit as to its duration may be conceded: Wilkinson v. Buist, 124 Pa. 253, 261. But it does not follow that, as in the light of other provisions of the will in question in the case just cited, so here, in the absence of like indications of intention, the power must be deemed limited to the lifetime of the life beneficiary. If that had been the understanding of the testatrix, it would have been unnecessary for her to say that he was to assent to and join in conveyances made “during the lifetime of my said husband.” It would have been enough to require his assent to and joinder in conveyances to be made by the executor under the power of sale conferred upon him without adding those words. In the interpretation of a will, every word and phrase are to be considered and given their due effect: Schott’s Est., 78 Pa. 40; Wood v. Schoen, 216 Pa. 425. The express reference to conveyances made in the husband’s lifetime, taken together with the power to sell “at any time,” convincingly shows that the testatrix contemplated the exercise of that power after the husband’s death. It was not, as in Wilkinson v. Buist, 124 Pa. 253, and Fidler v. Lash, 125' Pa. 87, a power of sale given to be exercised for the benefit of the life beneficiary, and therefore only while he lived. It was a power given generally, with a right of veto to the life beneficiary upon its exercise during his life. It was not the power to sell, but the restriction upon that power that was intended specially for the benefit of the life beneficiary. Indeed, it seems clear that the testatrix created the power of sale, distinctly and consciously, for the purposes of the division of her estate directed in the previous paragraph and that it was therefore exercisable after the husband’s death — just as such a power was held exercisable in Peters v. Ry. Co., L. R. 18 Ch. Div. 429, approvingly cited in Wilkinson v. Buist, ubi supra. In other words, the period to which any time limitation upon the power of sale under this will is to be referred is the time of distribution contemplated by the will, viz., “immediately upon (i. e., with reasonable promptness after: Water Co. v. Ephrata Borough, 20 Pa. Superior Ct. 149, 154) the death” of the husband, which, as the facts agreed upon show, was the case here.
    It remains only to add that if the conclusions thus far stated are correct, there can be no doubt about the succession of the plaintiff as administrator d. b. n. c. t. a. to the power of sale given by the will to the executor as one exercisable, not collaterally to his duties as such, but virtute officii, within the decisions in Evans v. Chew, 71 Pa. 47; Lantz v. Boyer, 81 Pa. 325; Potts v. Breneman, 182 Pa. 295; Tarrance v. Reuther, 185 Pa. 279.
    It follows that the question propounded for the opinion of the court in the case stated is to be answered in the affirmative, and therefore judgment is entered upon the case stated in favor of plaintiff and against defendant for the sum of 85,085.

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

      Harry F. Kantner, for appellant.

      April 25, 1910:

      John B. Stevens, with him Garrett B. Stevens, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of Judge Enough.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Fisher, Appellant, v. Reading Realty Company.

      Vendor and vendee — Articles of sale — Real estate — Covenants—“Good and complete” title — Assessment for sewer — Municipal claims.

    1. Where articles for the sale of real estate provide that taxes for the year preceding and years prior to that, shall be paid by the vendor, but no mention is made of an assessment for a sewer under construction, the amount of which could not be ascertained until long after the date of the agreement, the vendor is not liable under a covenant in the agreement providing for the title “to be good and complete,” to repay to the vendee the amount of such assessment paid by the latter after it was levied.
    2. In such a case a mere statement by the vendor in the course of negotiations that “the sewers were in, and that increased the value of the property,” implies no undertaking to indemnify the purchaser for the claim of the city by reason of the construction of the sewers.
    Argued March 1, 1910.
    Appeal, No. 30, Jan. T., 1910, by plaintiff, from judgment of C. P. Berks Co., Aug. T., 1909, No. 131, on verdict for defendant in case of William E. Fisher v. Reading Realty Company.
    Before Fell, C. J., Beown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit on a covenant in articles for sale of real estate.
    By articles dated March 21, 1907, the defendant sold to the plaintiff certain real estate the stipulated consideration being the payment of $1.00 in cash, the conveyance of certain properties equivalent to $2,450, and the execution of a first and second mortgage to secure the balance of the price agreed — “settlement to be made within 5 days from the date” of the articles — “taxes, in full for the year 1906 and previous to be paid by the present owners” — and “title to be good and complete.” At the date of the agreement a house sewer was in process of construction by the city of Reading along the street upon which the land sold to the plaintiff fronted, and it appeared from the testimony that practically it was completed in front of the property in question some time before the date of the agreement. The ordinance authorizing the work and directing the assessment of the cost upon abutting properties had been approved on August 7, 1905. The amount chargeable against the particular property involved was not ascertained and could not have been finally ascertained until some time after the date of the transaction, and according to the evidence was not ascertained until November 4, 1907. The amounts were paid on November 9, 1907, on December 5, 1907, and on April 12, 1909, amounting to over $1,500, by the plaintiff, who was the purchaser of the property. Suit was brought to recover these payments.
    At the trial the court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.
    On a rule for a new trial Endlich, P. J., filed the following opinion:
    The decision of this court refusing to enter judgment for want of a sufficient affidavit of defense in the above-stated case: see 1 Berks Co. L. J. 31, having been sustained upon appeal to the Superior Court: see 38 Pa. Superior Ct. 458, the cause came on for trial at September Term, 1909. There was no conflict of evidence. Indeed, the defendant submitted no testimony. It was conceived that every question material to the disposition of the cause was ruled by the decisions above referred to. Accordingly, the jury was instructed to render a verdict for defendant, which having been done, this rule was entered at plaintiff’s instance. In support of it, it is contended (1) that the construction of the sewer under the ordinance and contract of the city constituted - an incumbrance covenanted against by the agreement- of the parties for the conveyance of a “good and complete” title, and (2) that the court erred in rejecting plaintiff’s offer to show a certain conversation between plaintiff and one of the officers or agents of defendant company, pending the negotiations for the sale of the property here involved, which, it is alleged, shows that payment of the sewer assessment by defendant was contemplated.
    1. It would seem that the first of these contentions is conclusively disposed of by the decision of the Superior Court that “a fair construction of the entire agreement leads to the conclusion that the covenant upon which the plaintiff relies was not intended to apply to such a claim,” —i. e., to the claim of the municipality for the cost of the sewer under construction along the property. It will be noticed that the decision expressly avoids as immaterial the question whether at the time of the agreement that claim “was or was not an incumbrance upon the property.” Doubtless in a certain sense the sewer itself may be regarded as an -incumbrance. But it is not asserted that that constituted a breach of any covenant contained in the agreement; nor perhaps, because of the notorious and visible character of this construction, could it. On the other hand, the claim of the city for the cost of the sewer could not be an incumbrance in any sense unless made so by statute. . The ruling of the Superior Court that, whether so made or not, it was not covered by any stipulation of the agreement so as to entitle plaintiff to reimbursement for his payment to the city on account of the sewer construction, is of course binding upon this court and leaves nothing more to be decided on this question.
    2. The trouble about the plaintiff’s second contention apart from any question of the admissibility of- the proposed evidence upon' other grounds, is that it did not tend to prove what it was offered for. It was proposed to show that, while the negotiations between plaintiff and defendant for the purchase and sale of the property were going on, plaintiff objected to the price asked of him as too high, and that the reply made to him was that “the sewers were in and that increased the value of the property.” There was no pretense that the payment of the cost of the sewer by defendant was mentioned or promised. If it had been, the case might possibly come within the principle of Buckley’s App., 48 Pa. 491. Nor is any assumption of liability by defendant inferable from the terms of the conversation as set forth in the offer. The mere statement, in answer to a suggestion of the excessiveness of the price demanded, that the presence of the sewer justified it, certainly implied no undertaking to indemnify the purchaser for the claim of the city by reason of its construction. It simply amounted to an assertion that the property, in view of the situation as it was, was worth more than it would otherwise be. For this reason, remembering that the written contract was so made as not to impose any liability upon defendant for the cost of the sewer, it is not believed that any error was committed in rejecting the plaintiff’s offer.
    April 25, 1910:
    The rule to show cause is discharged.

      Errors assigned were. (1) refusal to permit a witness for plaintiff to testify as to statements made as to sewers in the property and the consequent increased value of the property therefrom; (3) in giving binding instructions for defendant.

      John B. Stevens, with him C. II. Buhl and G. B. Stevens, for appellant,
    cited: Barnes v. Black, 193 Pa. 447; Lafferty v. Milligan, 165 Pa. 534; Sneathen’s Est., 22 Pa. Superior Ct. 45.

      Cyrus G. Derr, with him Paul It. Price, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of Judge Enough.


text:
    Hiester, Appellant, v. Hiester.

      Trusts and trustees — Gift—Resulting trust.

    Where a man furnishes the purchase money for a dwelling house and places the title in the name of his deceased son’s widow as a gift because of his desire to do something for her and her children, and because of services rendered to him and his wife, and the father-in-law goes into possession of the premises with the understanding that he would pay the taxes and keep the house in repair in lieu of rent, the transaction vests in the daughter-in-law an absolute title, and the father-in-law has no standing in equity to compel her to convey the premises to him.
    Argued March 1, 1910.
    Appeal, No. 41, Jan. T., 1910, by plaintiff, from decree of C. P. Berks Co., Equity Docket, 1908, No. 957, dismissing bill in equity in case of Adam K. Hiester v. Alexander J. Hiester and Gabriel A. Hiester, individually and as executors of Lucy Ann Hiester, deceased, and Jacob A. Lesher.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity to declare a resulting trust and for a conveyance of real estate.
    Stevens, J., filed the following opinion:
    FINDINGS OF FACT.
    1. On March 29, 1907, George M. Miller conveyed to Lucy Ann Hiester a two-story brick dwelling house No. 255 West Buttonwood street, Reading, for the consideration of $1,800.
    2. That Adam K. Hiester, the plaintiff, furnished Lucy Ann Hiester, who was the widow of his son Gabriel, the full consideration money, $1,800 as aforesaid, as a gift because of his desire to do something for his daughter-in-law and her two sons, Alexander J. Hiester and Gabriel A. Hiester, his grandchildren, and because of services which Lucy Ann Hiester had rendered to the plaintiff and his wife for a period of seventeen years.
    3. That the plaintiff went into possession of the premises with the understanding that he should pay the taxes and keep the house in repair in lieu of rent.
    CONCLUSION OF LAW.
    That the title to the premises No. 255 West Buttonwood street, Reading, vested in Lucy Ann Hiester absolutely by virtue of the conveyance from George M. Miller as aforesaid.
    DISCUSSION.
    The only question raised by the pleadings and evidence is whether Adam K. Hiester has a resulting trust in the property. He paid for the property, and, ordinarily, a purchase by one in the name of another creates a resulting trust. The ownership of the money which purchases a property draws to it the beneficial or equitable interest in the estate. This, however, is a mere presumption which may be rebutted. Ordinarily the burden of proof is upon the nominal purchaser to show that he was intended to have some beneficial interest. Where, however, the nominee in the title is a wife or a child or a grandchild, or one to whom the purchaser stands in loco parentis, the moral obligation to provide for such party is at once recognized and an advancement may be presumed. The presumption may also be rebutted by the declarations of the purchaser, made at such time and in such immediate connection with the purchase as to be a part of the res gestee. Also by his declarations made afterwards which bear upon his intention at the time.
    The question as to whether a resulting trust exists in any case must depend upon the intention of the grantor. The plaintiff rests his case solely upon the payment of the purchase money, aided by the testimony of a single witness concerning declarations of the plaintiff in the presence of Lucy that Lucy had bought a house, that the plaintiff had paid for it and that whenever he wanted it she would give him a deed for it, but if he did not want it it was hers, and that Lucy said she knew it was not hers. The answer of Lucy who is now dead sets forth that the money was given to her as a gift because plaintiff had never done anything "for me and my sons, his grandchildren, and because I had given him and his wife valuable services for seventeen years.” The defendants called in corroboration of this story two witnesses who were present on the day the deed was executed, who testified that the plaintiff in a conversation with his attorney stated that he had no house, that the house was his daughter-in-law’s and that he was moving into his daughter-in-law’s house. In addition, there is proof of subsequent declarations made by the plaintiff to the effect that he had not done right towards Lucy, that she had nursed his sick wife and that he now had bought a house and lot for her and deeded it to her and that it was hers. Ordinarily, declarations of the purchaser must be made at the time and in immediate connection with the purchase. It has been said by the Supreme Court in Edwards v. Edwards, 39 Pa. 369, that declarations before the purchase can import no more than an intention, which, because it is a mere mental purpose, may be changed. If after, they would operate to divest an equitable estate and therefore are unworthy to be received. But the intention of the .parties at the time is the essential element, and declarations made afterwards bearing upon that intention are competent as throwing light thereon: Warren v. Steer, 112 Pa. 634.
    It is objected that the allegations in the answer concerning the consideration are not to be considered as not being responsive to the bill; that the facts stated in the answer are only to be considered in so far as they affect the payment of the purchase money, and that the payment of the purchase money not being denied, the presumption of a resulting trust arose therefrom, and that no other part of the answer is material. When the plaintiff calls upon the defendant to answer the allegations contained in the bill, he, of course, makes him his witness for that purpose and for no other. The defendant is bound to set forth whatever constitutes in truth the facts stated in the bill. Thus, if the plaintiff states a contract as the foundation of his equity, the defendant has a right to state the whole of such contract. The plaintiff cannot give only his part of the contract and bar the defendant, after an admission of that part, from describing truly all the facts.
    The principles which must guide us in a consideration of this question are fully set forth by Justice Sharswood in Eaton’s App., 66 Pa. 483. The distinction is therein stated to be between allegations upon those subjects upon which the bill requires an answer, and allegations of new matter not stated or inquired of in the bill, but introduced by the defendant in his defense. Whether the plaintiff calls upon the defendant to make an answer which must directly deny or affirm some statement, or whether he requires him to make a statement of the facts upon the particular subject-matter, the principle is the same. If the answer which is required involve some statement favorable to the defendant other than matter merely in denial of the plaintiff’s allegation, the defendant, being required to furnish that matter, is entitled to the benefit of it. An answer does not set up a fact by way of avoidance merely when it is only a response which the defendant is obliged to make to the bill of the plaintiff. The test of responsiveness is if the whole subject-matter of the statement or allegation in the answer might have been left out, then the allegation in the answer upon that subject is in no way responsive to the bill — the bill requiring no statement upon that point. But if the omission of some statement upon that subject would furnish just ground of exception to the answer, then the statement to the extent to which it is required, and whatever its character, whether affirmative or negative, is but a response to the requisition of the plaintiff. The question raised in Eberly v. Groff, 21 Pa. 251, seems to be in point. The bill charged that an assignment was without consideration. The answer denied that it was without consideration, and proceeded to set forth what the consideration was, and it was held to be responsive.
    . So in this case the bill charges the payment of the consideration money by the plaintiff under an agreement that the purchase was made for the defendant by the plaintiff that whenever requested the said defendant would convey the legal title to the property to the plaintiff, with the further allegation that the defendant delivered to the plaintiff possession of the premises and that the plaintiff removed there with his family and has continued to reside there, making all repairs, etc., and having exclusive possession and exercising exclusive ownership.
    The answer admits the payment of the money by the plaintiff but sets out a consideration in accordance with the facts as here found, and further explains the possession of the premises by the plaintiff under the agreement as herein found.
    Under the principles as above set forth it seems clear to us that the answer as to the facts herein found are strictly responsive to the bill. The question under consideration was carefully considered in Roberts’s App., 85 Pa. 84, in an opinion filed by Judge Thayek and adopted by the Supreme Court. The language used in applying the principles of law to the facts applies precisely to the conclusions which we have reached and we therefore adopt it. “This brings us to what appears to us to be the real question in this case, and that is, whether there is here sufficient evidence to rebut the presumption of a resulting trust, which always arises where a conveyance has been made without consideration to one, of an estate or other property which has been purchased with the money of another. The presumption of such a resulting trust is always rebutted, to use the language of the books, where the purchase may fairly be deemed to be made for another, from motives of natural love and affection. Thus a purchase in the name of a child or of a wife is uniformly held by the unaided force of the relationship alone to rebut the presumption, unless there be clear evidence to show that the donee was intended to be a mere trustee. “ It is contended that the presumption of a resulting trust cannot be rebutted in the present-case because the donee is not related by blood to the donor. Yet the ordinary case of a gift to a wife shows conclusively that blood is not a necessary ingredient to give effect to the presumption rebutting such a trust. The presumption in favor of a wife or child; which rebuts the resulting trust, is doubtless founded on the moral obligation which rests on the donor to provide for them, and the inference which arises therefrom, that it was the intention of the donor thus to provide for them, and that they should not hold as trustees. But why may not the presumption also arise where these relationships do not .exist, if there is clear evidence to show that such was the manifest intention of the donor? It is quite clear that other circumstances and other relations in life, besides the relationship of parent and child, or husband and wife, may sufficiently rebut the presumption of a resulting trust. Thus a gift to a sister; a grandmother to grandchildren; a stepfather to a stepchild; a relation by marriage. Whether there is or not a resulting trust must always depend upon the intention of «the grantor. As the presumption which arises in favor of a wife or child is founded exclusively upon the intention of the grantor inferred from the relationship, it would be extremely illogical to hold that a like presumption could not be derived from other circumstances clearly showing the same intention, and especially from proof of the express and deliberately declared wishes of the grantor.
    Counsel may prepare and submit the proper decree in accordance with the foregoing findings and conclusions, sec. reg.

      Error assigned was decree dismissing the bill.

      April 25, 1910:

      Isaac Hiester, with him B. Y. Shearer, for appellant.
    One who furnishes the purchase money for a property of which he takes possession and exercises all the rights of ownership becomes the owner although the title is taken in the name of another (not a wife or child) for whom he intends it as a gift when it shall suit him to deliver possession: Lynch v. Cox, 23 Pa. 265; Galbraith v. Galbraith, 190 Pa. 225; Edwards v. Edwards, 39 Pa. 369.

      Snyder & Zieber, with them Wilson S. Bothermel, for appellees.
   Per Curiam,

The decree appealed from is affirmed on the findings of fact and conclusion of law by Judge Stevens.


author: Mr. Justice Moschzisker,

text:
    Stradley v. Bath Portland Cement Company, Appellant.

      Res adjudicata — Master and servant — Judgment.
    1. Where a person employed for one year at a fixed salary payable in monthly installments, brings an action against his employer to recover the first month’s salary, and in his statement of claim duly sets forth the contract and its terms, and avers performance of duties, and nonpayment for same, and judgment is entered against the defendant for want of an affidavit of defense, and such judgment is paid, the judgment if unimpeached and unreversed, is res adjudicata in a later suit to recover other monthly installments of pay, as to all matters relating to the contract set forth'in the plaintiff’s statement of claim in the first suit.
    2. In such a case the fact that the first suit was on the contract for one month’s salary, and the second for damages arising from a breach of the contract, makes no difference as to the application of the doctrine of res adjudicata to such material issuable facts as are common to both.

      Master and servant — Salary—Installments—Actions.
    3. When an employee on a contract for a fixed period, at a per annum salary payable monthly, has been wrongfully discharged, he can, if he sees fit, bring a separate action as each installment of salary falls due; yet if no action is brought until more than, one is due, all installments that are then due must be included in the one action; and if an action is brought when more than one is due, a-recovery in such action will be an effectual bar to a second suit brought to recover installments which were due at the time of the inception of the first action; and this on the theory that a judgment settles everything involved in the right to recover, not only matters that were raised, but those which might have been raised.
    Argued March 22, 1910.
    Appeal, No. 408, Jan. T., 1909, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1909, No. 3,432, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Benjamin F. Stradley v. Bath Portland Cement Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed with modification.
    Assumpsit to recover monthly installments of salary. Before Sulzberger, P. J.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Tustin & Wesley, for appellant.
    Each action for installments due must include every installment due when suit is commenced: Seed v. Johnston, 63 N. Y. App. Div. 340; Lorillard v. Clyde, 122 N. Y. 41 (25 N. E. Repr. 292); Jex v. Jacob, 7 Abb. N. Cas. 452; Underhill v. Collins, 133 N. Y. 685 (31 N. E. Repr. 628); Morrison v. De Donato, 76 Mo. App. 643; Stiles v. Himmelwright, 16 Pa. Superior Ct. 649; Smith v. Lumber Co., 142 N. C. 26 (54 S. E. Repr. 788); Logan v. Caffrey, 30 Pa. 196; Secor v. Sturgis, 16 N. Y. 548; Burritt v. Belfy, 47 Conn. 323.
    There is no doubt that the law of Pennsylvania has always been that a judgment entered not on the merits but by reason of technical defects either in the pleadings or the form of the suit was not res adjudicata, such as judgment for costs, judgment of nonsuit and the like: Levison v. Blumenthal, 25 Pa. Superior Ct. 55; Place v. Landsdale, etc., Turnpike Rd. Co., 8 Montg. County L. R. 63.
    April 25, 1910:

      Alex. Simpson, Jr., with him Bernard J. O’Connell, for appellee,
    cited: Allen v. Textbook Co., 201 Pa. 579; Allen v. Engineer’s Co., 196 Pa. 512; Lorillard v. Clyde, 122 N. Y. 41 (25 N. E. Repr. 292); Hess v. Heeble, 6 S. & R. 57; Sterner v. Gower, 3 W. & S. 136.
   Opinion by

Mr. Justice Moschzisker,

The court below entered judgment for want of a sufficient affidavit of defense.

The plaintiff first sued the defendant on April 19, 1909. The statement was filed April 28, 1909, and claimed $416.66, for one month’s salary from October 28 to November 28, 1908, averring: “On or about the 28th day of October, 1907, in pursuance of a verbal agreement with the board of directors of the defendant company, the plaintiff was elected vice president of the said company at a salary of $5,000 a year; which said salary was to be paid in monthly installments; and as such officer of said company he was to perform such duties as the said board of directors should assign to him. That in pursuance of the said agreement the plaintiff entered upon the performance of the said duties, which for the year in question were those of general sales-agent. That on or about the 28th day of October, 1908, the plaintiff was re-elected to said office, and the said board of directors assigned to him for the ensuing year, in addition to his regular duties as vice president, the office of general manager, etc., at Bath, Pa.” On April 28, 1909, the defendants entered an appearance, and on May 27, 1909, the plaintiff took judgment for want of an affidavit of defense; which judgment was paid by the defendant on June 9, 1909. After this the plaintiff brought a second suit to recover $4,583.26, eleven months’ salary from November 28, 1908, to October 28,1909. In this case he filed a statement of claim containing precisely the same averments as those just quoted from the statement in the former action, in addition to which he averred: "That he performed his duties up to the eighth day of February, 1909, when he was wrongfully and maliciously prevented by the defendant company from the further performance of the said duties, and was discharged by the said company from the said employment” and, "The said plaintiff has continued from the said time ready and willing at all times to perform said duties or such duties as might be assigned to him.” He also averred the facts as to the former action, and that the judgment in that suit “stands to this day unappealed from and unreversed.”

The defendant filed an affidavit and a supplemental affidavit of defense, in which it set up as a defense to the whole claim: that there was no contract for the employment of the plaintiff or for his election to office when he was elected second vice president of the defendant company on October 28, 1907, with an admission that his salary was then fixed by the board of directors at $5,000 a year; that when the plaintiff was elected vice president on October 28, 1908, no salary was fixed, and at that meeting he with other members of the board of directors delegated to the executive committee of the board the power and authority to fix the salaries of all the officers of the company; that on October 29, 1908, the executive committee concluded that no salary was to be paid to the plaintiff as vice president, and elected him to the office of manager at Bath at a salary of $250 per month, and so notified him by letter on December 1, 1908; that the plaintiff held his office as vice president and general manager until February 8, 1909, when he severed his connection with the company; that the board of directors never made any agreement with the plaintiff to pay him $5,000 a year, and that the plaintiff was never elected to the office of vice president in pursuance of any contract, but held the'office at the pleasure of the board of directors; and finally, a general denial that, the plaintiff was wrongfully and without cause prevented by the defendant from the further performance of his duties, or that he was discharged from his employment, “as in said statement of claim averred,” and an averment that “the said plaintiff, being unwilling to accept $250 per month salary as manager of the Bath office, and being unwilling to serve as vice president without compensation, he withdrew from the service of the defendant company on or about the 8th day of February, 1909, as in the said statement of claim averred, but the. defendant denies that on said day, as in said statement of claim averred, the plaintiff was wrongfully and maliciously prevented from a performance of the said duties assigned'to him, as second vice president. The defendant avers that the said plaintiff was discharged from his employment as manager of the Bath office on or about the 8th day of February, 1909.” The averments as to the payment of salary are extremely vague, but it is not averred that any part of the salary sued for has been paid, or even that the salary at the rate of $250 per month was paid up to February 8, 1909.

’ A second defense was that by bringing suit on April 19, 1909, for only one month’s salary ending November 28, 1908, the plaintiff waived all other salary due between the latter and the former dates, and that he is now es-topped from claiming the salary so waived.

Both of these defenses were .adjudged insufficient and judgment was entered for $4,735.80, the full amount of the claim with interest. An appeal has been taken by the defendant.

The court below states: “As to the first defense, it is clear that under ordinary circumstances the denial as made by the affidavit of defense would be sufficient to send the case to a jury. The plaintiff, however, contends that such an effect cannbt follow here, bécause the existence of the contract declared on and its terms are res adjudicata. The defendant denies this effect to the judgment in the previous case because it was a judgment procured without an issue of fact, or law, being taken for want of a sufficient affidavit of defense. There never having been any denial of the plaintiff’s averments, it is contended that the binding effect of the judgment is limited only to the matter or thing in controversy in that case, namely, the one month’s salary; that while no question could ever be raised again as to that, yet as to any other month’s salary, or any other terms of the contract, the question remains open and undecided, because it has never been contested.” In disposing of these contentions the learned judge of the common pleas filed an opinion in which he amply sustained his rulings on this branch of the case, and we cannot do better than to quote from and adopt part of that opinion: “The question can no longer be said to be arguable. It is settled public policy that validity must be attributed to judgments of courts, and that when a matter has once properly passed to final judgment, it has become res judicata, and the same matter between the same parties cannot be reopened or subsequently considered, save only by a direct appeal for reconsideration to the tribunal that gave the first judgment, or by proceedings for reversal had in an appellate court. So long as a judgment stands unreversed and unappealed from it may not be questioned in any other case. And the circumstance that there was no legal contest in reaching the judgment does not impair its effect. The modern decisions in England and in this country are at one on this point. In South American and Mexican Company v. Bank of England (L. R. 1895, 1 Chancery, 37, 44) Sir Roland Vaughn Williams stated the doctrine in these words: 'It has always been the law that a judgment by consent or by default raises an estoppel just in the same way as a judgment after the court has exercised a judicial discretion in the matter. The basis of the estoppel is that, when the parties have once litigated a matter, it is in the interest of the state that litigation should come to an end; and if they agree upon a result or upon a verdict, or upon a judgment, or upon a verdict and judgment, as the case may be, an estoppel is raised as to all the matter in respect of which an estoppel would have been raised by judgment, if the case had been fought out to the bitter end.’ And in the same case the Lord Chancellor (Hekschell) used this language: ‘The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is the judgment which results from the decision of the court after the matter has been fought out to the end.’ And these views are exactly in line with those of our courts. In Orr v. Mercer County Mut. Fire Insurance Company, 114 Pa. 387, it was held, that, ‘A confession of judgment in a cause at issue in the court of common pleas, on an appeal from a justice of the peace is conclusive upon the defendant as to the right of the plaintiff to recover other payments on the same contract, in subsequent actions, in which the defense is the same as that made before the justice of the peace in the former action.’ And in delivering the opinion of the court, Mr. Justice Trunkey said (p. 392): ‘In legal effect, while it stands, a judgment by default or confession is the same as upon a verdict.’ And in support of the doctrine cites the case of Newton v. Hook, 48 N. Y. 676, in the following words: ‘Suit was brought on two notes against the maker and indorser to recover a payment of interest; the defendant appeared by counsel, but made no answer, and judgment was taken by default. Subsequently, the same plaintiff brought suit against the indorser on three notes, two of them being the two in the former suit, all made in the same transaction, and the defendant set up usury which would have invalidated the notes, and it was ruled that the former judgment was conclusive of the plaintiff’s right to recover.’ And this doctrine was emphatically reaffirmed by Mr. Justice Fell in Schwan v. Kelly, 173 Pa. 65, 71, in these words: ‘The rule that what has been judicially determined shall not again be made the subject of controversy extends to every question in the proceedings which was legally cognizable, and applied where a party has neglected the opportunity of trial, or has failed to present his cause or defense in whole or in part under the mistaken belief that the matter would remain open and could be made the subject of another proceeding.’ In the case before us, no judgment could have been entered for want of an affidavit of defense, unless the statement had presented a valid ground for such judgment, and the ground presented was, that there was a contract for the salary sued for; that it was payable monthly, and that it had not been paid for the first month. The entry of the judgment judicially ascertained these facts, and as that judgment stands unreversed and unappealed from, those facts are in law absolute and cannot be gainsaid in another proceeding. If the defendant felt that in justice he ought to escape their consequences, it was his duty to show to the court that entered the judgment some reason why it should be set aside or modified. He failed to do that, but, on the contrary, paid the amount, which payment was, in law, a declaration that he had no reason to question the facts found by the judgment, and these are now res judicata. The defense is therefore ineffectual, and the plaintiff is entitled to recover.”

In addition to the cases cited in the opinion of the court below, we have the case of Allen v. Textbook Co., 201 Pa. 579, wherein it was ruled: “Where a person is employed for one year at a fixed salary, payable in weekly installments, and is discharged during that period, and two weeks afterwards sues for two installments of his salary, and recovers a judgment, which is paid, such a judgment conclusively establishes the wrongfulness of the discharge, and in an action brought after the period of employment had expired to recover salary for the balance of the year, the question of the wrongfulness of the plaintiff’s discharge cannot again be inquired into;” and Pennock v. Kennedy, 153 Pa. 579, to the effect that a judgment is conclusive not only of the matters that were actually considered, but of those that might have been considered if the defendant had exercised the vigilance that the law requires.

Aside from the general question of the applicability of the principles of res adjudicata to a judgment by default, the defendant contends that the declaration in the first case failed to sufficiently aver a contract of employment at a fixed salary or for any definite time, or that •the plaintiff’s second election was in pursuance of the alleged original contract, and therefore that these matters cannot be said to have been adjudicated in that suit. But the defendant loses sight of the fact that in this other' action the plaintiff was suing for the first monthly installment of salary which had accrued after his election for the second year, and that all of the averments as to the origin of the contract were for the purpose of showing a right -to recover the amount claimed, $416.66, on an employment-under a yearly contract at a salary of $5,000. Although the declaration was not stated with technical nicety, no attack having been made on it by demurrer or rule for a more specific statement, and there having been no rule to strike off or open the judgment entered thereon, and that judgment not only remaining unappealed from, unimpeached, and unreversed, but having been actually paid-by the defendant company, it is now too late to raise these questions. We must .assume that the judgment was properly entered, and that all material issuable facts stated or implied in the declaration were well pleaded, and it only remains to see what facts of that nature were involved. They were: 1. That in pursuance of a contract the plaintiff on' October 28, 1907, was elected and employed by the year at a salary of $5,000 per annum, to be paid monthly. 2. That he was to perform such duties as might be assigned to him. 3. That he entered upon and did perform these duties. 4. That on October 28, 1908, he was re-elected under this contract for the ensuing year, and entered upon the performance of his duties. 5. That there had been a breach of the contract of employment by the defendant, and not by the plaintiff. All of these matters were either averred or implied, and on the theory upon which the plaintiff stated his case they were material to a recovery; for that reason we must take them to have been well pleaded, and the principles of res adjudicata apply.

This brings us to the second declaration. All of the issues which we have just enumerated as adjudicated under the first declaration are attempted to be raised by the second, and the only material new ones relate to the nonpayment of the amount sued for and the discharge. There is no sufficient denial of either of these. As to the first, there is practically no denial at all; and in regard to the second, the facts averred by the defendant are not sufficient in law to overcome the allegations of the plaintiff. The plaintiff says the discharge was a wrongful one, and the defendant answers that it was not wrongful, because the plaintiff was not employed at an annual salary for a fixed period, as alleged in his statement of claim, but Was employed subject to the right of the executive committee to discharge him at any time; that his salary as second vice president had been taken away by resolution of that committee, and that he had been properly discharged. This claim of right on the part of the defendant depends upon the ascertainment of a contract materially different from the one relied upon by the plaintiff and adjudicated in the first suit; that is, a contract not for one year’s employment at $5,000, but for an employment subject to discharge or reduction in salary at the will of the defendant. The defendant neither contends nor attempts to show that the plaintiff was properly discharged under the contract declared upon by him in both the first and the present action, but contents itself .with a denial of that contract, and justifies the discharge by averring another and essentially different one. The court below very correctly concluded that the judgment in the first suit barred the defendant from setting up this new contract.

In addition to this, although the affidavit sets forth a • copy of the notice sent to the plaintiff of the resolution cutting off his salary as second vice president, yet it fails to give a copy of such resolution. For all that can be told from the affidavit as drawn, it may be that the affiant is merely averring his conclusions as to the effect of the resolution passed by the executive committee, and that his conclusion could not be supported in law if the resolution were set forth verbatim et literim.

The defendant further contends that because the first suit was on the contract for one month’s salary, and the second for damages arising from a breach of the contract, the principles of res adjudicata do not apply. While th.e legal theory upon which the two actions are grounded may not be the same, yet this can make no difference in the application of the doctrine of res adjudicata to such material issuable facts as are common to both.

We are brought to the conclusion, in view of the matters adjudicated in the first suit, that the averments in the affidavits of defense are not sufficient to justify sending the case to a jury, and the court below was right in so ruling.

In the determination of the second defense, the court below fell into error. When an employee on a contract for a fixed period, at a per annum salary payable monthly, has- been wrongfully discharged, he can, if he sees fit, bring a separate action as each installment of salary falls due; yet if no action is brought until more than one is due, all installments that are then due must be included in the one action; and if an action is brought when more than one is due, a recovery in such action will be an effectual bar to a second suit brought to recover installments which were due at the time of the inception of the first action; and this on the theory that a judgment settles everything involved in the right to- recover, not only matters that were raised, but those which might have been raised. This rule was recognized and applied in Jenkins v. Scranton, 205 Pa. 598. When the plaintiff brought his action on April 19, 1909, for one month’s salary from October 28 to November 28, 1908, he did not include the other four months’ salary which were then due. The four months omitted in that action he included in his present suit; and this he had no right to do.

We eliminate the four months’ salary with interest amounting to $1,751.28, and affirm the judgment in favor of the plaintiff for $2,984.52.


author: Mr. Justice Elkin,

text:
    Chambersburg Borough School District, Appellant, v. Hamilton Township School District.

      Equity — Parties—School law — Borough.
    1. Where a portion of a township is annexed to a borough and thereafter the borough files a bill in equity against the township, involving title to a school property in the annexed district, it is improper to join with the borough, a resident of the borough living in the annexed district as a party plaintiff (1) because such resident is not a resident of the township, but of the borough, and as such cannot join with the borough to make the bill a taxpayer’s bill as against the township, and (2) because the borough school district authorities have full power in themselves apart from a taxpayer to maintain a bill to enforce its rights in school property.

      Equity — Ejectment bill — Fraud.
    2. Equity has no jurisdiction to determine the rights of adverse claimants to land on a mere allegation of fraud as to a link in the chain of title when there is no other complication either as to parties or subject-matter, and where the only question involved is one of disputed title.
    3. Where land has been taken from a township and annexed to a borough, and the borough claims title to school property in the annexed district by virtue of the annexation proceedings, and it appears that prior to the annexation the school district of the township had conveyed the land to an individual, and thereafter took from him a lease, the borough school district has no standing to maintain a bill in equity where the only ground alleged is that the deed from the township school district to its grantee was fraudulent. In such a case there is an adequate remedy at law, and the bill will be dismissed as an ejectment bill.

      Argued March 7, 1910.
    Appeal, No. 57, Jan. T., 1909, by plaintiffs, from decree of C. P. Franklin Co., Equity Vol. 3, page 98, dismissing bill in equity in case of Chambersburg Borough School District and Whitfield C. Bishop v. Hamilton Township School District and John W. Bossart.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity to cancel a deed.
    Gillan, P. J., stated the case to be as follows:
    The township of Hamilton comprises one school district; it adjoins the borough of Chambersburg. In recent years the portion of the township adjoining the borough has very materially increased in population. It became necessary for the school directors to furnish school facilities for this increased population. In 1903 the township built a schoolhouse on a lot of ground purchased by them, the cost of. the lot and building being $2,813.60, which was paid for out of the funds of the township raised by taxation. On January 18, 1906, the school directors of the township, by deed, conveyed this house and lot of ground to John W. Bossart, a member of the board, for a consideration of $1,700, which deed was at once put on record. On the same day, the said John W. Bossart leased the property to the school district of Hamilton township at an annual rental of $170. A school was maintained in said building by the said school district from the time of its erection until the territory in which it is located was made a part of the borough of Chambersburg.
    The bill alleges that the names of the members of the board voting for and against the resolution authorizing the sale of said property were not entered on the minutes of the board. On May 11, 1908, by ordinance, duly enacted and filed in the office of the clerk of the court of quarter sessions of the county, a portion of Hamilton township, containing a population of about 700, and in which portion of the township is located the lot of ground and schoolhouse above mentioned, became a part of the borough of Chambersburg. The portion so annexed is by the plaintiffs in their bill denominated the addition. On January 15, 1906, a petition signed by a majority of the owners of lots and out lots in said addition, was presented to the town council, asking that the said addition be annexed to said borough; this petition had been signed in the fall of 1905; no action was ever taken on this petition. On November 4, 1907, a second petition was presented and the same day an ordinance, duly passed, annexed the said addition to the borough, which ordinance was approved by the burgess on November 8, 1907, and became finally operative on May 11, 1908. None of the persons who were members of the school board of Hamilton township at the time the conveyance was made, are or were residents of the addition. Whitfield C. Bishop, one of the plaintiffs, was, from a time prior to May 1, 1903, and still is, a resident of and taxpayer in the said addition, having paid his proportionate share of the cost of said lot of ground and building.
    The plaintiffs allege that the sale to Bossart was unlawful: (1) Because no action was taken by the board authorizing said sale, and recorded on the minutes of the board; (2) that the names of those directors voting for and against the resolution authorizing said sale were not entered on the records (3) because John W. Bossart, to whom the said conveyance was made, being at the time a member of the board, could not lawfully make said purchase. They further allege Hi at the conveyance was made for the purpose of and with the intent of accomplishing a fraud upon the plaintiffs; that the said conveyance was made to the advantage of the school district of Hamilton township other than the addition, and to the personal advantage of John W. Bossart, and to the express and separate harm and disadvantage of the residents and taxpayers of the addition; that the board of directors, and especially John W. Bossart, in making said sale and conveyance, were not discharging the duties of then office faithfully and impartially. They therefore ask: 1. That the deed be declared null and void, and that John W. Bossart be ordered and decreed to deliver up the same, and that it be canceled and the record thereof so marked. 2. General rélief. The defendants having demurred, all the allegations of the bill are taken as true. The defendants demur on the ground that none of the parties plaintiff have any standing to inquire into the alleged transaction, the said Bishop not being a resident or taxpayer of the township; that the school district has no standing because at the time the said conveyance was made, the school district of the borough of Chambersburg had no interest whatever in the disposition of the property or funds in Hamilton township. Further, if they have any rights or standing in the premises, each has an adequate remedy at law. They contend that the bill is a mere ejectment bill, and therefore should be dismissed; that the matters are not cognizable in equity.
    The court entered a decree dismissing the bill.

      Error assigned was the decree of the court.

      William S. Hoerner, with him C. A. Suesserott, T. Z. Minehart and W, O. Nicklas, for appellants.
    As a general rule courts of equity have jurisdiction to relieve against every species of fraud: Clauer v. Clauer, 22 Pa. Superior Ct. 395.
    The bill was not a mere ejectment bill: Mortland v. Mortland, 151 Pa. 593; Wagner v. Fehr, 211 Pa. 435.

      Charles Walter and O. C. Bowers, with them Arthur W. Gillan, for appellees.
    The plaintiffs are not proper parties.
    The plaintiff school district has an adequate remedy at law: Messimer’s App., 92 Pa. 168; Long’s App., 92 Pa. 171; Barclay’s App., 93 Pa. 50; Thomas v. Hukill, 131 Pa. 298; Williams v. Fowler, 201 Pa. 336; Richard’s App., 100 Pa. 51.

      April 25, 1910:
    The sale to Bossart was voidable and not void: Trainer v. Wolfe, 140 Pa. 279.
   Opinion by

Mr. Justice Elkin,

At the time of the filing of this bill Bishop was a resident of the borough of Chambersburg, and not of the township of Hamilton. His status as a taxpayer for the purpose of giving him standing in this proceeding is fixed as of the date when it was instituted. He is joined as a taxpayer for the purpose no doubt of having this treated as a taxpayer’s bill. But why a taxpayer’s bill when the borough school district not only has the right to act for itself but in point of fact is doing so? The school district of the borough is clothed with authority to bring suit and is asserting its power in the present proceeding. It does not strengthen the cause of the school district to add the name of an individual resident as a party. The subject-matter of this dispute concerns the school district of the borough which has ample power to protect school property under its control and to assert every legal or equitable right to which it is entitled. The board of school directors act for and represent the district not only in the conduct and supervision of the schools but in the assertion of every legal right relating to school property. If the members of the board are derelict in the performance of their duties, or act in violation of law, a taxpayer of the district may be heard to complain in a proper proceeding. No such situation is here presented. Bishop is not now a resident of, or taxpayer in, the township, and has no present standing to complain of what the board of school directors in that district did. When he was a resident of the township he did not complain and now when he has become a resident of the borough and might be incidentally benefited as a taxpayer in another school district it is too late for him to intervene to protect rights upon which he slept during all the time he was a resident of the township. He is not complaining of any action of the school board of the borough where he resides, but is attempting to aid that board by lending his name as a party plaintiff. No authority is cited for such a precedent, and it is doubtful if there is any such authority, because there does not seem to be any reason or necessity for such a joinder. Whatever rights Bishop or any other taxpayer of the borougfy has, are fully protected by the action of the school board. The board of directors has full power to defend title to school property in its possession, or to recover possession of any real property belonging to the school district but which may not be in its possession. In no proper legal sense can this proceeding be considered a taxpayer’s bill and it follows as of course that Bishop was improperly joined. With Bishop eliminated as a party it remains to be determined what standing the school board of the borough has to maintain the bill. The learned court below after full consideration held it to be an ejectment bill and dismissed it with costs. We have reached the same conclusion. The case is not complicated either by parties or subject-matter. The title to the lot of ground and the schoolhouse erected thereon, located in that part of the township which was annexed to the borough is the thing in dispute. The paper title to this property is in Bossart, who is exercising the rights of ownership under his title. The school district of the borough is claiming title to this property under the annexation proceedings. The contention of the borough is that the deed to Bossart is invalid and passed no title to him. If this be true, then the title to the property was in the township at- the time of annexation and became the property of the borough school district by operation of law. It is difficult to see how a more clearly defined question of title to land could be raised. Whether the school district of the borough is in possession, or out of possession, is not now material in controversies growing out of disputed title. If in possession, the adverse clainiant can be ruled to bring his ejectment; if out of possession, ejectment will lie to settle title and recover possession. The whole question' of title can be settled in one action. Certainly, under these circumstances the remedy at law by ejectment is full, complete and adequate. We think no useful purpose can be served by a discussion of the cases relied on by the learned counsel for appellants and appellees to support the contention on one side that equity has jurisdiction and on the other that it is an ejectment bill to be tried on the law side of the court. In no decided case where the only question involved was one of disputed title, and right of possession, and no question of multiplicity of suits, or of diverse interests of several parties, or of complications arising out of the subject-matter, arose, has it ever been held that equity had jurisdiction to determine the rights of adverse claimants to land on a mere allegation of fraud as to a link in the chain of title when there was no other complication either as to parties or subject-matter. We think this is a question of disputed title, including right of possession, and should be tried on the law side of the court. The learned court below after reaching the conclusion that the bill should be dismissed proceeded to express an opinion on the merits of the case and the standing of the parties to institute further proceedings. We refrain from so doing because such an expression of opinion could only be advisory and the record as here presented would not warrant the entry of any final decree conclusive of the rights of the parties. If the parties cannot amicably settle their differences and an action of ejectment should be brought to determine the title to the school property in question, all questions affecting the validity of the conveyance to Bossart can then be raised.

Decree affirmed at the cost of appellants.