text:
    Commonwealth v. Fisher, Appellant.

      Constitutional law — Title of statute — Courts—Juvenile court — Trial by jury —Class legislation — Act of April 23, 1903, P. L. 274.
    The Act of April 23, 1903, P. L. 274, entitled an act “Defining the powers of the several courts of quarter sessions of the peace, within this commonwealth, with reference to the care, treatment and control of dependent, neglected, incorrigible and delinquent children, under the age of sixteen years and providing for the means in which such power may be exercised,” is constitutional. The act is sufficient in title, and does not contain more- than one subject. It does not create a new court; nor does it deprive juveniles charged with crime of their constitutional right of trial by jury; nor is it class legislation.
    Argued May 9, 1905.
    Appeal, No. 44, Jan. T., 1905, by defendant, from judgment of Superior Court, Oct. T., 1904, No. 69, affirming judgment of Q. S. Phila. Co., delinquent certificate, No. 645, committing defendant to house of refuge in case of Commonwealth v. Frank Fisher.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Appeal from Superior Court.

      JSrror assigned was the judgment of the Superior Court.

      John jII. Fow, for appellant.

      John G. Bell, district attorney, with him Owen J. Bober is, assistant district attorney, for appellee.
    October 9,1905:
   Opinion by

Mr. Justice Brown,

In a proceeding conducted in the court of quarter sessions of the county of Philadelphia under the provisions of the Act of April 23, 1903, P. L. 274, Frank Fisher, the appellant, was committed by that court to the House of Refuge. From the order so committing him an appeal was taken to the Superior Court, which affirmed it: Commonwealth v. Fisher, 27 Pa. Superior Ct. 175. The constitutionality of the act of 1903 was the*sole question before the court in that case, and is renewed here. The objections of the appellant to the constitutionality of the act, as presented by counsel, are: (a) Under its provisions the defendant was not taken into court by due process of law; (5) he was denied his right of trial before a jury on the charge of the felony for which he had been arrested ; (c) the tribunal before which he appeared and which heard the case and committed him to the house of refuge was an unconstitutional body and without jurisdiction; (ci) the act provides different punishments for the same offense by a classification of individuals according to age; (e) the act contains more subjects than one, some of which are not expressed in the title. In considering these objections the order in which they are made will not be followed.

The act is entitled : An act defining the powers of the several courts of quarter sessions of the peace, within this commonwealth, with reference to the care, treatment and control of dependent, neglected, incorrigible and delinquent children, under the age of sixteen years, and providing for the means in which such power may be exercised.” By this title notice of the purpose of the act is distinctly given. It is a single one. It is to define what powers the state, as the general guardian of all of its children, commits to the several courts of quarter sessions in exercising special guardianship over children under the age of sixteen years needing the substitution of its guardiansliip for that of parents or others. This purpose is expressed in the title in as few words as are consistent with clearness. No one from reading the title can possibly misunderstand the purpose of the act that follows, and Art. Ill, sec. B, of the constitution is not offended, if, in passing to the body of the act, nothing is there found, but this one single purpose. The preamble to it is a recital that, as'the welfare of the state requires that children should be guarded from association and contact with crime and criminals, and as those who, from want of proper parental care or guardianship, may become liable to penalties which ought not to be imposed upon them, it is important that the powers of the court, in respect to the care, treatment and control of dependent, neglected, delinquent and incorrigible children should be clearly distinguished from those exercised by it in the administration of the criminal law. After defining the powers of the court the act proceeds to direct how they are to be exercised in giving effect to its purpose. Nothing in the first nine sections can be read as relating or germane to any other purpose than the one named; and there can be no surer test than this of compliance with the constitutional requirement of the singleness of purpose of an act of assembly.

The objection that “the act offends against a constitutional provision in creating, by its terms, different punishments for the same offense by a classification of individuals,” overlooks the fact, hereafter to be noticed, that it is not for the punishment of offenders, but for the salvation of children, and points out the way by which the state undertakes to save, not particular children of a special class, but all children under a certain age, whose salvation may become the duty of the state in the absence of proper parental care or disregard of it by wayward children. No child under the age of sixteen years is excluded from its beneficent provisions! Its protecting arm is for all who have not attained that age and who may need its protection. It is for all children of the same class. That minors may be classified for their best interests and the public welfare, has never been questioned in the legislation relating to them. Under the act of 1887, the'classification of females under sixteen years of age means felonious rape, with its severe penalties for what may be done one day, though on the next it remains simple fornication, to be expiated by a mere fine. Other acts forbid the employment of minors under twelve years of ago in mills ; of any boy under fourteen or any female in anthracite coal mines; of minors under fourteen in and about elevators; of a boy undér twelve or any female in bituminous coal mines ; others make it a misdemeanor to furnish intoxicating drinks, by sale, gift or otherwise, to one under twenty-one, and fprbid the admission of any minor into certain places of amusement. Such classification is not prohibited by the constitution, and what has not boon therein prohibited the legislature may enact. Shortly after the adoption of our present constitution we said, in the leading case Wheeler y. The City of Philadelphia, 77 Pa. 338: “ In like manner other subjects, trades, occupations, and professions, may be classified. And not only things but persons may be so divided. The genus homo is a subject within the meaning of the constitution. Will it be contended that as to this there can be no classification ? No laws affecting the personal and property rights of minors as distinguished from adults ? Or of males as distinguished from females ? Or, in the case of the latter, no distinction between a feme covert and a single woman ? What becomes of all our legislation in regard to the rights of married women if there can be no classification? and where is the power to provide any future safeguards for their separate estate? These illustrations might be multiplied indefinitely were it necessary.”

No new court is created by the act under consideration. In its title it is called an act to define the powers of an already existing and ancient court. In caring for the neglected or unfortunate children of the commonwealth, and in defining the powers to be exercised by that court in connection with these children, recognized by the state as its wards requiring its care and protection, jurisdiction is conferred upon that court as the appropriate one, and not upon a new one created by the act. The court of quarter sessions is not simply a criminal court. The constitution recognizes it, but says nothing as to its jurisdiction. Its existence antedates our colonial times, and, by the common law and statutes, both here and in England, it has for generations been a court of broad general police powers in no way connected with its criminal jurisdiction. Innumerable statutes upon our own books during the last two centuries attest this. With its jurisdiction unrestricted by the constitution, it is for the legislature to declare' what shall be exercised by it as a general police court, and instead of creating a distinctively new court, the act of 1903 does nothing more than confer additional powers upon the old court and clearly define them. On this point nothing can be profitably added to the following from the opinion of the Superior Court: “No new court is created and the ancient court of quarter sessions, which is older than all the constitutions of Pennsylvania, is given thereby not greater but different powers from those previously exercised. The court of quarter sessions has for many years exercised jurisdiction.over the settlement of paupers, over the relation of a man to his wife and children in desertion cases, in surety of the peace cases, in the granting of liquor licenses, and in very many of the ways in which the public welfare is involved, where there is neither indictment nor trial by jury. It might as well be said that the court of quarter sessions is not a court of quarter sessions, because it keeps a separate road docket, or, for convenience, a separate docket for desertion cases, or appoints days in which it will hear a certain class of cases, or as it is said in popular parlance, will hold a ‘ license court.’ In the latter class of cases, where there is more than one court of common pleas within a county, it is usual for the courts themselves to designate the judges who shall hold what is known as the license court. It has never been claimed, so far as we know— certainly not successfully claimed — that such designation was in any sense unconstitutional or that, because of the designation, a separate court was created. It is no more so in the case under consideration than in any of the cases spoken of above.” It is a mere convenient designation of the court of quarter sessions to call it, when caring for children, a juvenile court, but no such court, as an independent tribunal, is created. It is still the court of quarter sessions before which the proceedings are conducted, and though that court, in so conducting them, is to be known as the juvenile court, the records are still those of the court of quarter sessions.

In pressing the objection that the appellant was not taken into custody by due process of law, the assumption, running through the entire argument of the appellant, is continued, that the proceedings of the act of 1903 are of a criminal nature for the punishment of offenders for crimes committed, and that the appellant was so punished. But he was not, and he could not have been without due process of law, for the constitutional guaranty is that no one charged with a criminal offense shall be deprived of life, liberty or property without due process of law. To save a child from becoming a criminal, or from continuing in a career of crime, to end in maturor years in public punishment and disgrace, the legislature' surely may provide for the salvation of such a child, if its parents or guardian be unable or unwilling to do so, by bringing it into one of the courts of the state without any process at all, for the purpose of subjecting it to the state’s guardianship and protection. The natural parent needs no process to temporarily deprive his child of its liberty by confining it in his own home, to save it and to shield it from the consequences of persistence in a career of waywardness, nor is the state, when compelled, as parens patrise, to take the place of the father for the same purpose, required to adopt any process as a means of placing its hands upon the child to lead it into one of its courts. When the child gets there and the court, with the power to save it, determines on its salvation, and not its punishment, it is immaterial how it got there. The act simply provides how children who ought to be saved may reach the court to be saved. If experience should show that there ought to be other ways for it to get there, the legislature can, and undoubtedly will, adopt them, and they will never be regarded as undue processes for depriving a child of its liberty or property as a penalty for crime committed.

The last reason to be noticed why the act should be declared unconstitutional is that it denies the appellant a trial by jury. Here again is the fallacy, that he was tried by the court for any offense. “ The right of trial by jury shall remain inviolate,” are the words of the bill of rights, and no act of the legislature can deny this right to any citizen, young or old, minor or adult, if he is to be tried for a crime against the commonwealth. But there was no trial for any crime here, and the act is operative only when there is to be no trial. The very purpose of the act is to prevent a trial, though, if the welfare of the public require that the minor should be tried, power to try it is not taken away from the court of quarter sessions, for the eleventh section expressly provides that nothing in the preceding sections “ shall be in derogation of the powers of the courts of quarter sessions and oyer and terminer to try, upon an indictment, any delinquent child, who, in due course, may be brought to trial.” This section was entirely unnecessary, for without it a delinquent child can be tried only by a jury for a crime charged; but, as already stated, the act is not for the trial of a child charged with a crime, but is mercifully to save it from such an ordeal, with the prison or penitentiary in its wake, if the child’s own good and the best interests of the state justify such salvation. Whether the child deserves to be saved by the state is no more a question for a jury than whether the father, if able to save it, ought to save it. If the latter ought to save, but is powerless to do so, the former, by the act of 1908, undertakes the duty, and the legislature, in directing how that duty is to be performed in a proper case, denies the child no right of a trial by a jury, for the simple reason that, by the act, it is not to be tried for anything. The court passes upon nothing but the propriety of an effort to save it; and if a worthy subject for an effort of salvation, that effort is made in the way directed by the act. The act is but an exercise by the state of its supreme power over the welfare of its children, a power under which it can take a child from its father, and let it go where it will, without committing it to any guardianship or any institution, if the welfare of the child, taking its age into consideration, can be thus best promoted. “ The true rule is : ‘ That the court are to judge upon the circumstances of the particular case; and to give their directions accordingly.’ ” This was said in habeas corpus proceedings in Rex v. Sir Francis Blake Delaval et al., 3 Burr. 1434, by Lord Mansfield, in discharging Anne Catley, a minor. And he further said: “ In the present case, there is no reason for the court to deliver her to her father. She has sworn ‘ To have received ill usage from him, before she was at all put out apprentice : ’ and whilst she was with Bates, her master, it appears that her father seldom or never came near her, or ever gave her either advice or reprimand. It is even suspicious ‘ Whether the father and mother were not parties to the conspiracy; ’ and whether the father does not carry on this prosecution in hopes of extorting money from the defendants. Let the girl therefore be discharged from all restraint, and be at liberty to go where she will.”

By the Act of April 10, 1835, P. L. 133, which is a supplement to the act establishing the House of Refuge, authority was given to an alderman or justice of the peace, on complaint of a parent or guardian, to commit to that institution an incorrigible or vicious female under the age of eighteen years. Mary Ann Crouse was committed to the institution by Morton McMicblel, a justice of the peace of the county of Philadelphia, and in remanding her to the institution in proceedings on a writ of habeas corpus for her discharge, on the ground that the act authorizing her commitment was unconstitutional, as she had not had a trial by a jury, this court, with Gibson as its chief justice, said in a per curiam: “ The object of the charity is reformation, by training its inmates to industry ; by imbuing their minds with principles of morality and religion; by furnishing them with means to earn a living; and, above all, by separating them from the corrupting influence of improper associates. To this end, may not the natural parents, when unequal to the task of education, or unworthy of it, be superseded by the parens patriae, or common guardian of the community? It is to be remembered that the public has a paramount interest in the virtue and knowledge of its members, and that, of strict right, the business of education belongs to it. That parents are ordinarily intrusted with it, is because it can seldom be put into better hands ; but where they are incompetent or corrupt, what is there to prevent the public from withdrawing their faculties, held, as they obviously are, at its sufferance ? The right of parental control is a natural, but not an unalienable one. It is not excepted by the declaration of rights out of the subjects of ordinary legislation; and it consequently remains subject to the ordinary legislative power, which, if wantonly or inconveniently used, would soon be constitutionally restricted, but the competency of which, as the government is constituted, cannot be doubted. As to abridgment of indefeasible rights by confinement of the person, it is no more than what is borne, to a greater or less extent, in every school; and we know of no natural right to exemption from restraints which conduce to an infant’s welfare. Nor is there a doubt of the propriety of their application in the particular instance. The infant has been snatched from a course which must have ended in confirmed depravity; and, not only is the restraint of her person lawful, but it would be an act of extreme cruelty to release her from it: ” Ex parte Crouse, 4 Whart. 9. Appellate courts of other states have expressed this same view. / Among the cases which might be cited is Wisconsin Industrial School for Girls v. Clark County, 108 Wis. 651, where it is said : “ The power to place children under proper guardianship has been exercised by chancellors and judges exercising chancery powers from time immemorial. Said Lord Redesdale, in 1828, in Wellesley v. Wellesley, 2 Bligh. (N. S.), 124, the right of a chancellor to exercise such power has not been questioned for 150 years. Such a proceeding is not a trial for an offense requiring a common law, or any jury. It was never so regarded in England, nor has it been in this country in but few instances, notably cases in New Hampshire, and in People ex rel. O’Connel v. Turner, 55 Ill. 280. That case was in effect overruled by later cases and is not now considered as authority: Petition of Ferrier, 103 Ill. 367 ; McLean County v. Humphreys, 104 Ill. 378. As said, in substance, in the Ferrier case, the proceeding is not one according to the course of the common law in which the right of. trial by jury is guaranteed, but a mere statutory proceeding for the accomplishment of the protection of the helpless, which Object was accomplished before the constitution without the enjoyment of a jury trial. There is no restraint upon the natural liberty of children contemplated by such a law, — none whatever-; but rather the placing of them under the natural restraint, so far as practicable, that should be, but is not, exercised by parental authority. It is the mere conferring upon them that protection to which, under the circumstances, they are entitled as'-’a matter of right. It is for their welfare and that of the community at large. The design is not punishment, nor the restraint imprisonment, any more than is the wholesome restraint which a parent exercises over his child. The severity in either case must necessarily be tempered to meet the necessities of the particular situation. There is no probability, in the proper administration of the law, of the child’s liberty being unduly invaded. Every statute which is designed to give protection, care, and training to children, as a needed substitute for parental authority and performance of parental duty, is but a recognition of the duty of the state, as the legitimate guardian and protector of children where other guardianship fails. No constitutional right is violated, but one of the most important duties which organized society owes to its helpless members is performed just in the measure that the law is framed with wisdom and is carefully administered. The conclusions above expressed are in accordance with adjudications elsewhere with but very few exceptions : Roth v. House of Refuge, 31 Md. 329; Ex parte Crouse, 4 Whart. 9; Tiedeman Lim., sec. 50; Prescott v. State, 19 Ohio St. 184; People ex rel. Van Heck v. New York Catholic Protectory, 101 N. Y. 195 ; Cincinnati House of Refuge v. Ryan, 37 Ohio St. 197 ; St. Mary’s Industrial School v. Brown, 45 Md. 310 ; Farnham v. Pierce, 141 Mass. 203.” None of the objections urged against the constitutionality of the act can prevail. The assignments of error are, therefore, all overruled and the order of the Superior Court, affirming the commitment below, is affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Real Estate Trust Company v. Perry County Railroad Company
    (No. 1).

      Railroads — Mortgage—Foreclosure—Decree of court — Estoppel—Laches.
    Whore purchasers of a railroad in a mortgage foreclosure proceeding have availed themselves of the permissive decree of the court to use bonds as purchase money, and the amount due upon the bonds has been specifically fixed by the court, and the purchasers relying upon the decree have purchased bonds therein designated, and applied them on their bid, received a deed for the property, formed a new corporation, and expended large sums of money, other bondholders who had full notice of the decree and proceedings thereunder, and of the action of the purchasers, have no standing, long after the transaction has been consummated, to petition the court to change the decree so as to correct an alleged inequality amongst the bondholders.
    Argued May 22, 1905.
    Appeal, No. 305, Jan. T., 1904, by Edward R. Sponsler, David Grring and W. II. Sponsler, from decree of C. P. Perry Co., Aug. T., 1903, No. 29, on bill in equity in case of The Real Estate Trust Company of Philadelphia v. The Perry County Railroad Company.
    Before Mitchell ,C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.

      Bill in equity to foreclose a railroad mortgage. Before Atrten, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      W. H. Sponsler, with him James M. Barnett, for appellants.
    —The appellees in this case, with full knowledge of all these proceedings from August 14, 1903, to January 18, 1904, a period of five months, never appeared or objected to the decree of July 20, 1903. They permitted the appellants to purchase the bonds on the basis of the amount adjudged to them by that decree to become the purchasers of this property, the sale to be confirmed to them, deed to be made conveying the title, the new railroad company to be formed, possession of the property to be taken and a large amount of money expended in the betterment of the road without an objection, and when all this was done, they for the first time indicated that they were dissatisfied with the decree. They are now estopped.

      (reorge B. Barnett, with him William S. Snyder, for appellees.
    The decree of July 20, 1903 provides that the proceeds of sale shall be brought into court for distribution. This clearly contemplates a further adjustment, if necessary, of the equities of all parties, than that made by the decree. It also provides that bonds can be used in payment only to the amount to which they are entitled to be paid in cash out of the proceeds of sale, which, of course, could be determined only on final distribution. Clearly the decree was not executed at the date of the rehearing, even if appellants are within the rule.
    October 9,1905 :
   Opinion by

Mr. Justice Brown,

On July 1, 1892, the Perry County Railroad Company issued 200 bonds of §500 each, and to secure their payment executed to The Real Estate Trust Company of Philadelphia, as trustee, a mortgage for §100,000 on all of its property and franchises. The bonds bore interest at the rate of six per cent, per annum and were payable twenty-five years from date, the coupons for the semiannual interest becoming due on the first days of January and July. The bonds were all negotiated by the railroad company, and, at the time the mortgage was foreclosed, were held by fourteen different parties. On July 1, 1893, the company defaulted in the payment of interest on eighteen of the bonds held by the Pennsyl vania Steel Company; on July 1, 1896, it defaulted in payment of the coupons on 143 of the bonds held by The Real Estate Trust Company of Philadelphia, and no interest was ever thereafter paid to either of the said companies, the holders of the bonds up to the time of the foreclosure proceedings. On the remaining thirty-nine bonds, held by twelve different parties, including the appellees, all interest was paid until July 1, 1903. On a bill filed by The Real Estate Trust Company as trustee in the mortgage and as a holder of the bonds of the company, a decree of foreclosure was made on July 20, 1903. By that decree the court below found the exact amount due on each of the two hundred bonds, and who held them ; and in directing the manner in which the net proceeds of the sale of the property should be distributed among these bondholders the decree was that the proceeds should be appropriated, first, to the payment of all interest due on the bonds; second, to the payment of interest accrued upon the matured and unpaid coupons attached to the bonds, and, third, to the payment of tho principal of the bonds in full, if the purchase money should be sufficient for that purpose, and if not, pro rata, so that no preference, priority or distinction should be given to any of the bonds. And it was further decreed that at the sale the purchase money might be paid “ either in cash, or by owners of bonds secured by such mortgage, in such bonds, to such extent as said bonds shall be entitled to payment in cash out of the proceeds of sale.” Subsequently to this decree, and before the day of sale, the appellants purchased one hundred and sixty-tliree bonds from The Real Estate Trust Company, John Wister’s estate and James Boyd, and shortly thereafter the eighteen held by the Pennsylvania Steel Company. In pursuance of public advertisement the property of the railroad company was sold at public sale in the city of Philadelphia on September 14, 1903, to the appellants for $75,000. On September 21, 1903, The Real Estate Trust Company made return of its sale to the court below and on that day, after a public proclamation in open court, no exceptions having been filed nor objections made, the sale was confirmed to the appellants and a deed ordered to be made out to them. Upon full settlement made by them with The Real Estate Trust Company by paying to it all the cash required by the terms of sale and turning in their bonds at the value which they had for the purpose of being used as purchase money under the decree of the court, a deed was executed and delivered to them and a receipt given in full for the purchase money. They subsequently formed a new railroad corporation under the act of assembly, taking over all the property and franchises that had been purchased by them, and prior to January 1,1904, paid out large sums of money in the repair of the rolling stock of the new company and other improvements and betterments. On January 18, 1904 — nearly four months after they had paid for their purchase in exact accordance with the decree of July 20, 1908, and received a deed for what they had purchased — the appellees filed a petition, praying for a rehearing of the bill and alleging that the decree of distribution was inequitable, as it ought to have been ordered pro rata upon all of the bonds, based upon the accumulation of principal and interest in each case only from July 1, 1903, the date of the last payment of interest to the petitioners. The status in which the other bondholders had been placed by the default of the company was alleged to be due to their indulgence of it, as a penalty for which their coupons that had matured before July 1,1903, ought not to be paid. A rehearing was ordered, with the condition that “ in so far as the decree has been executed, the parties who have acted on the faith of such decree shall not be prejudiced by such decree being reversed or varied.” The appellants, upon their petition, were allowed to intervene as respondents to the application for the rehearing. It was conducted before a judge of the eighth judicial district, specially presiding, who, on October 12, 1904, modified the decree of July 20, 1903, by ordering a general pro rata distribution among all of the bondholders, based upon the amount of principal and interest due as one sum in each case, wholly ignoring the rights which had been given the bondholders by the former decree, and upon which the appellants had acted in good faith.

The petition for a rehearing was disposed of by the learned judge, specially presiding, on answer and testimony, but with no regard to the decree of July, 1903. Indeed, it is not referred to in his general discussion, and reference is made to it only-in the order modifying it. He disposed of the questions raised as if they had never been passed upon by the court before, and though his opinion is designated as one on rehearing, from all that can be gathered from it, except its reference to a prior hearing, it could properly be regarded as the original hearing in the case. After reciting that the appellants had become the purchasers of the property and franchises of the railroad company in September, 1903, and had paid the purchase money in full, as already stated, the court found that, in pursuance of the permission given by the former decree, and in reliance upon it that the purchase money bid for the property and franchises at the sale might be paid for either in cash or bonds secured by the mortgage to such extent as the bonds should be entitled to payment in cash out of the proceeds of the sale, the appellants without any knowledge of the contemplated proceedings by the petitioners for a rehearing, or that they, or any of them, were dissatisfied with the decree of sale, or any part thereof, in good faith had purchased and become the owners of a number of bonds of the value of many thousands of dollars, for the purpose of using them as purchase money in the purchase contemplated by them, and prior to the filing of the petition for the rehearing, and without knowledge that an application for it was contemplated, used the bonds so purchased in their settlement and payment for the property and franchises of the railroad company, as permitted and allowed by the decree of sale; that in their plan and contemplation of the purchase of the said property and franchises of the said railroad company they had considered the condition of the tracks and equipment of the railroad company as dilapidated, worn out, menacing and dangerous, and in view of the necessity of quick and immediate repair and betterment of the property in the interest and safety of the public, had made the railroad safe by the expenditure of a large sum of money. But, in the face of these sweeping findings, the rights of the appellants, as fixed by the decree of July, 1903, and upon which they had acted, were ignored, to their manifest prejudice, by the decree made on the application for the rehearing, for, if it is not disturbed, it will compel them to pay additional purchase money after they have received their deed and paid every dollar called for by the decree under which they bought. The question before us is not whether the decree of July 20, 1908, was erroneous in directing that the proceeds of the sale should be applied, first, to the payment of all interest due on the bonds ; second, to the payment of interest accrued upon matured and unpaid coupons, and the balance to the payment of the principal of the bonds, but whether, under the admitted facts, just stated, the second decree of October 12, 1904, should be allowed to stand as an equitable one.

An undenied allegation in the answer to the petition for a rehearing is, that before the decree of July 20,1903, was finally made The Real Estate Trust Company had notified each one of the appellees of the proceedings to foreclose the mortgage and what decree would be asked for. Again, after it was made and before it was executed, notice was given them, on August 14, 1903, that a sale of the railroad property would be held in pursuance of it in the city of Philadelphia on September 14, 1903. No one of them objected to the entry of the decree, to the execution of the order of sale, nor to the confirmation of it by the court after the appellants had complied with all the conditions of the decree. As soon as the property was sold at the bid of $75,000 the appellees knew, or ought to have known, that by the decree, which they had allowed to become final, they would receive much less than the amounts due them on their bonds ; but, in the period between the date of the sale and its confirmation, when they could have acted, they did nothing. On the contrary, they allowed it to become absolutely confirmed and permitted the plaintiffs to pay for their purchase in accordance with the decree of sale. Nearly four months after its confirmation and the payment not only of the purchase money by the appellants, but after the expenditure of thousands of dollars by them in the betterment of the property acquired by the new company, a modification of the decree was asked for, with the immediate effect of making the appellants pay more for the property for the benefit’of the appellees. Assuming that their complaint as to the decree of July 20, 1903, is just, they had been given an opportunity to protest against it before it was made ;' again before it was executed, and later on, before the absolute confirmation of the sale, to ask that it be modified. ■ They did nothing, however, and with their laches and supineness, not only admitted, but unexplained, it would be against every equitable principle if a chancellor should now hear them to the prejudice of others, who, as found by the judge below in modifying the first decree, had acted in good faith on that decree, with not the slightest intimation that those who now complain of it were dissatisfied with it or contemplated any proceedings to have it modified. The decree of July 20, 1903, was fully executed as to the appellants, the purchasers of the property. There was nothing more for them to do under it, and yet, as now modified on the rehearing granted under the equity rule, that “ parties who have acted on the faith of such decree shall not be prejudiced by such decree being reversed or varied,” they are so manifestly prejudiced that attention need uot again be called to the wrong done them. The holder of a legal claim may be estopped from asserting it; and an equitable claim may in time, through the conduct of its owner, become inequitable as to those against whom he would press it. When the doors of chancery are knocked at in time they will open, that the chancellor may hear, but the knock may be too late, as was the appellees’.

The decree appealed from is reversed, and that of July 20, 1903, is affirmed as fixing the rights of the appellants as purchasers of the property sold, the costs in the proceedings on the rehearing and on this appeal to be paid by the appellees.


text:
    Real Estate Trust Company v. Perry County Railroad Company
    (No. 2).
    Argued May 22, 1905.
    Appeal, No. 116, Jan. T., 1905, by Duncannon National Bank, from order of C. P. Perry Co., Aug. T., 1903, No. 29, on bill in equity in case of The Real Estate Trust Company of Philadelphia v. The Perry County Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Appeal dismissed.
    October 9, 1905:
   Opinion by

Mr. Justice Brown,

In view of what we have said in the opinion this day filed in the appeal of Sponsler et al. from the same decree — ante, p. 57 — and of the finding of the court below, that neither the Real Estate Trust Company nor the Pennsylvania Steel Company had done anything which precluded it from demanding payment of its matured and unpaid coupons, this appeal must be dismissed.

Appeal dismissed at the costs of the appellants.


author: Mr. Chief Justice Mitchell, Potter and Mestrezat, JJ., dissenting:

text:
    Chester County Republican Nominations.

      Election law — A ppeals — Certiorari—Facts—Record.
    On an appeal in an election contest where the facts appear upon the record, the Supreme Court will examine whether the judgment is correct upon such facts, and may for that purpose consider the opinion of the court as part of the record.

      Election law — Party rules — Appeals—Nominations.
    The statutes relating to primary elections and nominations make party rules the law of each particular case, and the authority of the courts as in the review of corporate or ecclesiastical elections and trials, is merely to see that the acting body proceeded regularly according to its own rules.
    The rule of a party provided for a nominating convention to be composed of delegates from the different election districts. This convention was to be held at such time and place as might be fixed by the county committee. It was also provided that at the time and place the members of the party met to elect delegates to the convention, they should also “elect a member of the county committee for such district, for the ensuing year.” Another rule provided that “the affairs of the party shall be managed by a county, committee elected as aforesaid.” The delegate elections were not held at any set date, but at “such time and place as may be fixed by the county committee.” From the rules generally considered it appeared that the whole party machinery of party elections was centered in and to a large extent dependent upon the initiatory action of the county committee for the county and the committeeman for his district. Held, that the words “ensuing year” used in the rule relating to the election of the county committee, did not mean the calendar year, but did mean the political year, that is, the interval between one election and the next annual election which might be more or less than twelve calendar months.
    Under the above rules an election for committeemen should be held each political year. If the electors should see or suspect a design on the part of the committee to postpone a new election for the perpetuation of their own power or other unlawful or insufficient reason, mandamus would lie to compel the committee to act.

      Where the chairman of the county committee erroneously supposes that the terms of the committeemen have expired at the end of the calendar year, while as a matter of fact their term did not expiro until the end of the political year which was subsequent in date to the end of the calendar year, his action in filling the supposed vacancies by reappointing the same persons, is nugatory, and any action of the committee after the termination of the calendar year and before the termination of the political year is valid by reason of their previously existing authority.
    1?otter and Mbstbezat, JJ., dissent.
    Argued. Oct. 28, 1905.
    Appeal, No. 295, Jan. T., 1906, by R. Thomas Garrett and others, candidates named in a certificate of nominations, from order of C. P. Chester Co., sustaining exceptions to said certificate of nomination filed by Thomas Lack and others.
    Before Mitchell, C. J., Fell, Brown, Mestrbzat, Potter, Elkin, and Stewart, JJ.
    Reversed.
    The court sustained the objections.
    Objections to certificate of nominations. Hemphill, P. J., filing the prevailing opinion from which Butler, J., dissented.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order of the court sustaining objections to the certificate.

      Alfred P. Reid and JD. T. Watson, for appellants.
    This court has jurisdiction to inspect the whole record with regard to the regularity and propriety of the proceedings in the court below, and to determine whether the court below (1) exceeded its jurisdiction; or (2) its proper legal discretion; or (3) stated in other language, whether the court below have kept within the limits of the powers conferred and exercised them in conformity with law: Independence Party Nomination, 208 Pa. 108; Robb’s Nomination, 188 Pa. 212 ; Pollard’s Petition, 127 Pa. 507; Chase v. Miller, 41 Pa. 403; Appeal of Commissioners of Northampton County, 57 Pa. 452.
    The record that the certiorari brings up includes the certificate of nomination, the objections to the nomination and the opinion of the court: Independence Party Nomination, 208 Pa. 108 ; Bryson’s Road, 2 Penrose & Watts, 207.
    The court below only had jurisdiction to ascertain whether the certificate of nomination had been filed “ by the parties entitled under this act to file the same: ” Independence Party Nomination, 208 Pa. 108 ; Kunkle on Pennsylvania Ballot Law, 62; Wyman’s Nomination, 12 Pa. Dist. Rep. 210; Robb’s & Marron’s Nominations, 7 Pa. Dist. Rep. 577; McKim v. Somers, 1 P. & W. 297; Clark v. Com., 29 Pa. 129; Com. v. Smith, 45 Pa. 59.
    The Chester county republican committee, when these nominations were made in September, was still legally in existence and the individuals who claimed to be members théreof were de jure as well as de facto such members : United States v. Alexander, 46 Fed. Repr. 728; Clark v. Com., 29 Pa. 129; McKim v. Somers, 1 P. & W. 297; People v. Cook, 8 N. Y. 67; Com. v. Smith, 45 Pa. 59; Campbell v. Com., 96 Pa. 344.

      G. Wesley Talbot and George B. Johnson, with them Wayne MaoVeagh, for appellee.
    October 26, 1905:
   Opinion by

Mr. Chief Justice Mitchell,

This proceeding, though under the confusing directions of the procedure Act of May 9, 1889, P. L. 159, called an appeal, is in fact a certiorari and must be so treated. The principles and practice by which this court is governed in such cases are fully discussed in Independence Party Nomination, 208 Pa. 108, and for present purposes may be stated to be that where the facts appear upon the record this court will examine whether the judgment is correct upon such facts, and may for that purpose consider the opinion of the court as part of the record.

In this case there is no difficulty or dispute about the facts. They appear on the face of the certificate and the objections filed, and we take them without change from the specific findings of the court below. It is contended that there were certain other facts in connection with other nominating papers which were before the court below but are not here. But they related to a separate matter and are not relevant or material to the question of the correctness of the decision appealed from.

The court’s statement of facts, slightly condensed but otherwise unchanged, is as follows :

1. It is uncontroverted that on March 18, 1904, a county committee was duly elected in the several districts, and was duly organized March 23 by the election of Air. Ruth as chairman and two others as secretaries.

2. That as the committeemen were elected for one year their term of office expired on March 18, 1905, but the chairman, secretaries and treasurer held over until their successors should be elected.

3. That this county committee called primary elections to be held April 15, 1905, in the several districts of the county, for the purpose of electing delegates to a convention to nominate a county ticket, and also a member of the county committee, to serve for the ensuing year. Before the date for holding these elections had arrived many of the registered candidates had withdrawn their names, leaving no more than just sufficient to fill the various offices to be nominated, and on April 10, 1905, the chairman sent to each of the late committeemen a letter in which after quoting the Act of June 22, 1897, P. L. 179, as follows : “ If any political party has, by its rules, provided for a registration of candidates for nominations, and at the time limited for such registration or at any subsequent time by reason of withdrawals or other cause there should be no more candidates for any office registered or remaining than are to be elected to such office, the person or persons so registered or remaining shall be deemed the nominee or nominees with the same effect as if he or they had been nominated by a convention or primary meeting or caucus or board. And one or more or all of the officers of the committee of such political party with which such registration shall be made or the officer with whom it is made shall make a certificate of such nomination in the same manner and with the same effect as if there had been a nomination by a convention or primary meeting or caucus or board,” he notified them that “ in consequence of this condition it will therefore not be necessary to hold a primary election on Saturday evening next, and a convention on Tuesday, April 18. I therefore notify you that said primaries and county convention will be abolished this year and the nominations will be certified by the county committee, in conformity with the aforesaid act of 1897.”

4. On June 15, 1905, the chairman, in accordance with the provisions of the act of June 22, 1897, and as announced in the above letter, certified the remaining registered candidates to the county commissioners as the nominees of the Republican party.

5. On April 15, 1905, the chairman, by the authority conferred upon him, as he claimed by rule 5, to fill all vacancies in the county committee,” reappointed each and all of the late committee, the committeemen for their respective districts.

6. The committee thus appointed met on April 18, 1905,' and re-elected H. Morgan Ruth as its chairman, and William Taylor and J. Howard Coates as its secretaries.

.7. On August 17, 1905, all the nominees, excepting the nominee for, district attorney, withdrew their names from the certified ticket, and on the same day chairman Ruth called a meeting of his committee, resigned his office and Thomas Lack was elected chairman in his place.

8. At a meeting of the committee on September 26, 1905, called by Mr. Lack, nominations were made to fill the vacancies created by the withdrawal of those certified by Mr. Ruth on June 15, 1905, and the same were duly certified and filed with the commissioners by Mr. Lack on October 2, 1905. These are the nominations objected to in the present proceeding.

9. In the meantime, many republicans of the county dissatisfied with the management of their party affairs and especially with abolition of the primaries called for April 15, 1905, effected a new organization, in the manner detailed in the evidence of record, and in a convention duly called and held for the purpose on October 3, 1905, nominated a full county ticket to be voted for at the approaching election, and on October 4, 1905, Edward S. Darlington, the chairman of said .convention and its secretaries certified and filed the same with the commissioners as the ticket of the republican party or policy, and now claim that it is entitled to the republican column on the official ballot.

The 9th finding sets out the facts alluded to as the ground of contention by appellees that all- the facts before the court below are not now before us. But as already said they related to a separate matter. The court below held for reasons given that .the nominations certified by Mr. Darlington on ■ October 4, were not entitled to a place in the republican column on the ticket, and as there has been no appeal by those parties from his decision on that point it is not before us.

The statutes make the party rules the law of the ease, and the authority of the courts, as in the review of corporate or ecclesiastical elections and trials is merely to see that the acting body proceeded regularly according to its own rules.

The rules of the republican party of Chester county appear among the uncontroverted facts on the record and the determination of this case depends upon tlieir construction and application. Those which are relevant to the present discussion are the following :

“ Rule 2. The party should hold a convention to nominate a county ticket, a convention to elect delegates to the national and state conventions when necessary, and such other conventions as may become necessar}q to all of which conventions these rules shall apply.
“ Rule 8. The convention to nominate the county ticket to be composed of delegates from the different election districts of the county shall be held at such time and place as may be fixed by the county committee. . . .”
“ Rule 4. On the Saturday next before the time for holding the nominating conventions the republicans of the respective election districts of the county shall assemble at the usual place of holding delegate elections, or at such place as shall be designated by the member of the county committee for the respective district, and elect by ballot the delegate or delegates to represent them in the nominating convention. At the same time and place they shall elect a member of the county committee for such district for the ensuing year. ...”
“ Rule 5. The affairs of the party shall be managed by a county committee elected as aforesaid. Ten members thereof shall constitute a quorum to transact business. The county committee shall meet in West Chester for organization immediately after the convention for the purpose of nominating the county ticket has adjourned. They shall elect a president who shall be styled chairman of the county committee. They shall elect two persons as secretaries of the party, who shall audit the accounts of the former treasurer. They shall elect one person treasurer who may be a member of the committee or otherwise. The chairman and officers of the preceding year shall act until their successors are elected. . . .”
“ The chairman of the county committee shall fill all vacancies in the county committee by the appointment of another republican from the same district. . . .”
“ The chairman of the county committee shall be the executive officer of the party in the county, and shall put in operation these rules, the resolutions and orders of the county committee, and of the nominating convention, and shall preside at all meetings of the committee. . . .”
“ Rule 6. The county committeeman of each district shall be the executive officer thereof, and organize it in such a way as to bring to the election the whole vote of the party. . . .”
“ Rule 12. Each candidate for nomination by the republican convention to nominate county officers shall be required to give his name and post office address and pay 15.00 to the chairman of the county committee not less than thirty days before the date fixed for the delegate elections. . . .”
“ Rule 13. In case of a vacancy by death, resignation or otherwise after the nominating convention of the party has been held, and before the next ensuing election, it shall be the duty of the chairman of the republican county committee to call together the members of the county committee, and the members thus assembled shall have power to fill such vacancies.”

The crucial question now before us is the regularity of the county committee which filed the certificate of nominations which is objected to. By rule 4 the primaries or delegate elections are to be held on the Saturday next before the nominating conventions, and the electors are then to elect delegates to represent them in the nominating convention, and “at the same time, and place they shall elect a member of the county committee for such district for the ensuing yea'r.” The learned president judge of the court below in his second finding held that the term of the committee duly elected, as is conceded, on March 18, 1904, expired on March 18, 1905, and the committee became functus officio on that day except the chairman, secretaries and treasurer, who held over under rule 5 till their successors should be appointed. This part of the finding is a conclusion of law based on the interpretation of the phrase, “ for the ensuing year,” in rule 4, and was an erroneous construction of the rule. The “ ensuing year ” meant by the rule was not the calendar but the political year, that is, the interval between one election and the next annual election, which might be tnore or less than twelve calendar months. The delegate elections are not held at any set date, but at “ such time and place as may be fixed by the county committee.” (Rule 3.) The time is in the discretion of the committee, and it is common knowledge that it varies in different years, according to the exigencies or convenience of each year. Thus in the years of election of the president, or the governor, or other state officers, the date of county conventions is largely dependent on the date of the national or state conventions, while in years of election of county officers only the date is governed by local convenience. If a county election and convention should be held, as it often is, in August of one year and another in March in the next year, the new committee would come into power at once and the term of the prior committee would end, though it had lasted only seven months, and vice versa, the term of a committee elected in March might extend to August of the following year and thus cover seventeen months, if the date of the primary election should be so fixed.

A brief consideration of the powers and duties of the county committee will show that this is necessarily the intent of the rules. By rule 3 the time and place of the county convention are to bo fixed by the committee; by rule 4, on the Saturday before such date the electors are to assemble at the usual place of holding delegate elections, “ or at such place as shall be designated by the members of the county committee for the respective district,” and the committeeman shall call the assembly to order, and they shall then proceed to elect a judge and two inspectors, and to hold the election ; and by rule 6 “the county committeeman of each district shall be the executive officer thereof.” It thus appears that the whole party machinery of party elections is centered, and to a large extent dependent, on the initiatory action of the county committee for the county and of the committeeman for his district. If the whole committee is liable to become officially dead at a fixed date of exactly a calendar year after their election, then the whole organization is in danger of being thrown into inextricable confusion by the accidental or intentional or factional failure by the old committee to fix a date for the election of a new committee before the expiration of their own year. The party will be helpless to proceed regularly under its own rules, for there will be no one with authority to make the calls or start the proceedings. It is impossible to suppose that the party in framing its rules meant to subject itself to such obvious risks. But, on the other hand, if the “ ensuing year ” was intended, as it must have been, to mean the political year, there is full provision for an organization always in existence ready for regular party action under the rules.

Testing the regularity of the nominations objected to, by the rule thus understood, it appears

1. That the committee elected in March, 1904, has not been superseded by any new committee subsequently elected, and is therefore still in office de jure as well as de facto.

2. That on June 15, 1905, the chairman of the committee regularly'certified the names of the candidates, as authorized by the act of 1897.

8. That on August 17, 1905, the committee met and the chairman having resigned, elected a new chairman.

4. That on September 26, 1905, all the nominees certified to the county commissioners on June 15, 1905, excepting the nominee for district attorney, having previously withdrawn, the committee met and made nominations to fill the vacancies caused by these withdrawals.

5. That on October 2, 1905, the chairman of the committee duly certified these nominations to the county commissioners.

6. That the nominees so certified, the appellants, are the regularly nominated candidates of the party, and as such are entitled to the republican column on the official ticket.

Some collateral matters may be briefly noticed.

The chairman of the county committee acted within his authority under the act of 1897 (quoted in the third finding of fact by the court below) in dispensing with the county convention to make nominations, but he was mistaken in assuming that there was no occasion for district elections to elect a new committee. Under rule 4 the two elections are to be held at the same time and place, but they are separate elections and involve separate rights of the electors. The rule requires the election for committeemen to be held at the time and place fixed by the committee, but it clearly contemplates an election each political year, and if the electors should see or suspect a design on the part of the committee to postpone a new election for the perpetuation of their own power or other unlawful or insufficient reason, mandamus would lie to compel the committee to act. In the present case no such action was taken by any elector and the action of the committee was acquiesced in so far as any contest in a regular way under the rules was concerned.

The chairman of the committee was also in error in supposing that the terms of the committeemen had expired, and in reappointing them on April 15, 1905. Under rule 5 he had power to fill all vacancies in the committee, whether one or all of the number, but as there were no vacancies his action was nugatory. Having reappointed the same persons, however, no trouble ensued.' The committee acted and their action was valid by reason of their previously existing authority.

The judgment of the court below is reversed and the objections to the nominations directed to be dismissed.

Potter and Mestrezat, JJ., dissenting:

It is certain that the writ of certiorari does not lie to revise the decision of the court below upon matters of fact. And without conceding that the record proper in this case contains sufficient to give us jurisdiction to inquire into the merits of the question, we are clearly of the opinion that under a reasonable construction of the party rules the terms of the county committee men elected in March, 1904, expired at the time fixed for holding the meeting in April, 1905, to elect members for the then ensuing year.

Apparently no other construction than this, occurred to the mind of any one connected with the county committee, and the chairman showed that he so construed and understood the rule, by his action in attempting to appoint the members of an entire new committee to act from that date. It is suggested for the first time, in the opinion of the majority of this court, that the terms of the old committeemen were not limited to the ensuing year after their election, but, that they continued in office indefinitely, owing to the failure of a convention to elect their successors in April, 1905. With this view we cannot agree. Rule 4 provides “ that on the Saturday next before the time for holding the nominating convention, the republicans of the respective districts .... shall elect a member of the county committee for such district for the ensuing year.” In the present instance the time designated by the chairman for holding the convention was April 18, 1905, and the Saturday before was April 15, so that under the rule, the term of the committeemen elected for the previous year ended at that time. And the chairman so understood it and appointed new .committeemen under his claim of right to fill vacancies. It was this action which the court below held was unauthorized and illegal and we think the view taken by the court in this respect was right. Clearly under the rules the county committee was an elective body to be chosen by the people of the districts, to serve only for the ensuing political year. The power of the chairman to fill vacancies extended only to such as occurred in the elective body, and during the current year. We can see no power given to him by the rules to appoint an entirely new committee, without submitting the choice of- the membership to the votes of the people of the respective districts at the time fixed, under rule 4.

We would dismiss the assignments of error and affirm the proceedings in the court below.


author: Mr. Justice Bbown,

text:
    Kreamer, Appellant, v. Yoneida.

      Ejectment — Voluntary appearance — Proof of possession by defendant.

    Where a defendant in an ejectment enters a voluntary appearance without service of a writ upon him, or notice given as directed by any statute to appear and plead to the action, the plaintiff will be entitled to judgment, but only by proof of title in himself, and possession by the defendant of the lands in controversy.
    The plaintiff in an ejectment is not in a position to ask for the application of the Act of March 29, 1824, P. L. 167, where he himself has not complied with the directions of the act.

      Ejectment — Service of writ — Nonresident defendant — Publication of rule to

      appear and plead — Possession—Practice, C. P. — Acts of April 13, 1807, 4 Sm. L. 476, April 14, 1851, P. L. 612, and April 13, 1858, P. L. 256.
    Where a sheriff’s return to a writ of ejectment for unseated land shows that the land was unoccupied, that the defendant did not reside in the county, and had no agent in charge of the land in the county, and that notice of the suit was given personally to the defendant in another county, and the record further shows an appearance for the defendant, but fails to show a rule on him to appear and plead with publication thereof as provided by the Acts of April 14, 1851, P. L. 612, and April 13, 1858, P. L. 256, the return and the record raise no presumption that the defendant was in possession of the land described in the writ.

      Ejectment — Title from commonwealth — Abandonment—Adverse possession.

    A perfect title passing by the commonwealth’s patent is in no danger from the doctrine of abandonment, unless, in consequence of abandonment, adverse possession is taken by another and held for the period of the statute of limitations.
    Argued April 17, 1905.
    Appeal, No. 124, Jan. T., 1904, by plaintiff, from judgment of Superior Court, Oct. T., 1903, No. 22, reversing judgment of C. P. Centre Co., Nov. T., 1900, No. 96, on verdict for plaintiff in case of J. L. Kreamer v. William Voneida, William Close and William Fees.
    Before Dean, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Appeal from judgment of the Superior Court.
    Tbe facts appear by the opinion of the Supreme Court, and by tbe report of Kreamer v. Voneida, 24 Pa. Superior Ct. 347.

      jError assigned was the judgment of the Superior Court.

      A. O. Furst, with him, J. C. Meyer, for appellant.
    Our first contention is that the title to the Joseph Henry survey has become derelict and is non-subsisting, and therefore it cannot be treated as an outstanding title to defeat appellant in this action.
    We further contend that William Voneida and his codefendants have neither right nor title to the land, and therefore they are mere trespassers thereon, and hence have no title; and denying possession, they could not in law set up a title in Joseph Henry, derelict as it is, as a defense to this action: Riland v. Eckert, 28 Pa. 215 ; McBarron v. Gilbert, 42 Pa. 268.
    It is the duty of the defendant in an ejectment, if he does not dispute the whole of the plaintiffs claim, to enter his de-' fense for such part, as he disputes; if he pleads the general issue he admits himself to be in possession of the whole of the land claimed in the writ: Ulsh v. Strode, 13 Pa. 433; Hill v. Hill, 43 Pa. 521.
    This ruling of the Superior Court is erroneous in our view for another reason. No disclaimer of either title or possession was filed or insinuated. The defendants had their day in court. When called upon to try the case, if they were not in possession, it was then their duty to speak, and it was equally their duty to disclaim possession or title or both: Kirkland v. Thompson, 51 Pa. 216 ; Lane v. Harrold, 66 Pa. 319; Duncan v. Sherman, 121 Pa. 520; Lehigh Valley Coal Co. v. Beaver Lumber Co., 203 Pa. 544.

      John Blanchard, with him Bdrrmnd Blanchard and Andrew A. Leiser, for appellees.
    The plaintiff’s entire prima facie case is put at issue by the general plea of “ not guilty,” subject to such limitations of the defense to a part of the land claimed as the defendant at his option, not the plaintiff’s option, may see fit to introduce into the case : Zeigler v. Fisher, 3 Pa. 365 ; McCanna v. Johnson, 19 Pa. 434; Bronson v. Lane, 91 Pa. 153 ; Kirkland v. Thompson, 51 Pa. 216.
    In an action of ejectment, in the absence of a return of the service of the summons on the defendant, verified by the oath of the sheriff, it is necessary to prove that the defendant was in possession even though there be an appearance and plea by counsel: Mclntire v. Wing, 113 Pa. 67.
    Lapse of time does not abandon nor make derelict a perfect title to land: Naglee v. Albright, 4 Wharton, 291; Bunting v. Young, 5 W. & S. 188; Hoffman v. Bell, 61 Pa. 444; Bear Valley Coal Co. v. Dewart, 95 Pa. 72; Putnam v. Tyler, 117 Pa. 570.
    October 30,1905 :
   Opinion by

Mr. Justice Bbown,

The plaintiff below claimed title to the land in controversy —103 acres and 158 perches situated in Haines township, Centre county — under a -patent from the commonwealth to Henry Hess, issued December 12, 1821. On August 12,1796, a patent was issued to Aaron Levy on a warrant granted to Joseph Henry, July 24, 1792, for 400 acres and 52 perches, and it was admitted on the trial that the land called for in the Hess patent was embraced within the lines of the Levy patent. One of the defenses set up was this outstanding title granted by the commonwealth more than twenty-five years before the patent was issued to Hess. With nothing more, this was, as was properly held by the Superior Court, a complete defense, for the plaintiff could recover only on the strength of his own title : Kreamer v. Voneida, 24 Pa. Superior Ct. 347. Another defense was that the plaintiff had not proved possession of the land by Voneida, the real defendant. The writ had not been served on him, the return of the sheriff being as follows : “As to William Voneida, he not being found in the county of Centre, and that the lands described in the within writ are located in said county of Centre and aré unoccupied, and that the said William Voneida does not reside in the county in which said lands are located and has no known agent or person having the charge or superintendency of said lands resident within the county of Centre and notice of said suit was given personally to William Voneida at Laurelton, Union county, Pa., as directed by the act of 13th of April, 1858, anda copy was given him of within writ.” These two defenses, resting on undisputed facts, were made the subject of two points, asking that a verdict be directed for the defendants. The points were reserved and a verdict directed for the plaintiff. Subsequently judgment was entered on the verdict.

The question of the plaintiff’s right to recover in the absence of any proof of the possession of the land by Voneida, was not considered by the court in the opinion directing judgment to be entered on the verdict, and, as to the other defenses, the trial judge was of opinion that the Levy title was derelict and abandoned, and that the defendants could not, therefore, set it up against the Hess title. On appeal to the Superior Court the judgment below was reversed and a new trial awarded. From this judgment the appeal of the plaintiff below is before us.

From the sheriff’s return it affirmatively appears that Voneida was not an occupant of the land, and was not in the county at the time the writ was served. It was served on him in Union county, the return being that it had been served as directed by the Act of April 18, 1858, P. L. 256, but as the directions of the Act of April 14, 1851, P. L. 612, to which the act of 1858 is but a supplement, had not been complied with, the service was ineffectual to bring the defendant within the jurisdiction of the court. This seems to be admitted by the appellant. On this appeal, however, the position is taken, and apparently for the first time, that as the defendant voluntarily appeared the plaintiff was not required to prove that he was in possession of the land, and the fourth section of the Act of March 29, 1824, P. L. 167, is cited in support of this. That section provides : “ That any person wishing to bring an ejectment for land on which no person resides, and which lands have been sold for taxes, may bring his action and serve the writ on the person who purchased the said lands ; and if such person cannot be found in the proper county, then the court, after the return day of the writ, may, on motion of the plaintiff or his attorney, grant a rule on the defendant, describing the premises, to appear and plead, which rule shall be published for sixty days successively, before the return day thereof, in a weekly or daily newspaper of the proper county; and if no person appears, then the court, on proof of the publication, shall, on motion in open court, at the stated term, give judgment by default; but when the purchaser appears, or some person claiming under him, the court shall cause the person or his legal representative so claiming under the purchaser to be made defendant, and the cause shall be proceeded in and tried on respective titles of the parties as fully as if there was an actual occupation of the land.”

As the directions of the act of 1824 had not been complied with by the plaintiff, he is not in a position to ask for its application. The case as presented is one of a voluntary appearance by a defendant in an action of ejectment, without service of the writ upon him or notice given as directed by any statute to appear and plead to the action. The appearance having been voluntary, he waived service of the writ and would be bound by a judgment against him, to which, however, the plaintiff- would be entitled only by proof of title in himself and possession by the defendant of the lands in controversy. The act of 1807 relieves the plaintiff from the burden of proving possession by the defendant, if there is a return of service by the sheriff, but when there is no service and the defendant voluntarily appears, possession by him must be established by the plaintiff as a condition of his right to recover: Mclntire v. Wing et al., 113 Pa. 67. That case is conclusive that the plaintiff ought not to have been allowed to recover. There, as here, there was no service by the sheriff, but the defendants voluntarily appeared, and, in affirming the judgment of non-suit entered because the plaintiff failed to show that the defendants were in possession of the land, we said : “ There is no error in the refusal of the court to take off the compulsory nonsuit. The evidence wholly failed to show that the defendants were in possession of the land in question. They were not served with the writ by the sheriff. The presumption of possession created by the statute, when the sheriff makes return under oath that he has duly served the writ on the defendants, does not exist. While an appearance and plea by counsel may lead to a verdict and judgment against the defendants, yet on the trial it is necessary to prove that they were in possession of the premises. Failing in this, the nonsuit was properly entered. This view makes it unnecessary to consider the other questions.”

The trial judge was of opinion that the Levy title could not prevail against the Hess patent because the failure of Levy, or of any one under him, to assert his title for over 100 years was such “ dereliction ” as would now estop anyone claiming under him to set up the title as a valid and subsisting one. On this appeal the learned counsel for appellant zealously urges that the Levy title “ has become derelict and is nonsubsisting,” and Riland v. Eckert, 23 Pa. 215, is cited and pressed upon our attention as conclusive of the contention that it cannot prevail against the Hess title. In that case the land belonging to the estate of Judge James Wilson, deceased, had been sold on a judgment obtained against his administrators, without notice to his heirs, and in an ejectment brought against the persons in possession they undertook to defend on the outstanding title, which they alleged was still in the heirs, as the sale by the sheriff had been on a judgment against the administrators alone, which did not divest their title. All that was decided in that case was that the defendants had no right to take the place of the heirs and avail themselves of an irregularity which the heirs might haye chosen to waive. The plaintiffs, who purchased the land at the sheriff’s sale, took a title which was not void as to any except the heirs and the devisees of the deceased, and if they did not question the sale, strangers could not. As to the heirs, who alone could have raised the question of the regularity of the sale, the title may have become abandoned or derelict, but as to them WOODWAED, J., says : “ When a party shall present himself claiming under the heirs of Judge Wilson, it will be soon enough to consider the effect of the long delay and inaction which have attended their title, and to decide whether they are concluded or not; but until that happens the inquiry will be impertinent and superfluous.”

A different situation is presented here, and what is said in Riland v. Eckert has no application. A prior valid outstanding title from the commonwealth to another confronts the plaintiff, which has not been divested by any act of the original grantee, nor by any proceeding against him, his personal representatives, or anyone claiming under him. Such a perfect title passing by the commonwealth’s patent is in no danger from the doctrine of abandonment, unless, in consequence of abandonment, adverse possession is taken by another and held for the period of the statute of limitations. This abundantly appears in Hoffman v. Bell, 61 Pa. 444; Bear Valley Coal Co. v. Dewart, 95 Pa. 72; Putnam v. Tyler, 117 Pa. 570, and the other cases cited in the opinion of the Superior Court.

The evidence of adverse possession by the plaintiff was insufficient to establish title under the statute, and the Superior Court so held; but, instead of remitting the record with direction that judgment be entered for the defendant non obstante veredicto, a new trial has been ordered. As there is no appeal by the defendants from this order, we cannot interfere with it, though urged by them to do so, and the judgment of .the Superior Court is, therefore, affirmed. On another trial the plaintiff may be able to present such a case as will entitle him to recover.

Judgment affirmed.