author: Rice, P. J.,

text:
    Adair v. Decker, Appellant.

      Promissory notes — Renewal notes — Payment—Agreement—Judgment note — Opening judgment — Collateral.
    Renewal notes do not constitute.legal payments of the debts represented by original notes, unless there is an express agreement of the parties to that effect.
    Where a judgment has been entered upon a judgment note, and subsequently a part of the judgment has been paid, and a renewal note given for the unpaid balance, the renewal note is entitled to the protection of the lien of the judgment until such note has been paid.
    Where a judgment' note is given to a partnership, and judgment entered thereon, and subsequently the partnership is dissolved, and its successor takes over its assets and agrees to pay its debts, and thereafter a part of the original note is paid, and a renewal note for the balance given, the successor to the partnership is entitled to the protection of the lien of the judgment until the renewal note is paid.

      Bankruptcy — Federal act — Debtor’s exemption — Pennsylvania insolvent act — Act of June 4,1901, P. L. 404 — Waiver of exemption.

    The provision in the 31st section of the Act of June 4, 1901, P. L. 404, relieving a debtor from the consequences of a waiver of exemption in any contract or judgment, does not apply to insolvents or the estates of insolvents in general, but only applies to insolvents who have taken advantage of the act.
    Property generally exempted by state laws from the claims of creditors, is not part of the assets of the bankrupt, and does not pass to the assignee, but such property must be pursued by those having special claims against it in the proper state tribunals. If it appears that the bankrupt has waived the exemption in favor of a particular creditor, and has not taken the benefit of the Pennsylvania insolvency act of 1901, the creditor may take in execution the exempted property set apart by the federal court.
    Argued March 13, 1907.
    Appeal, No. 12, March T., 1907, by defendant, from order of C. P. York Co., Jan. T., 1906, No. 105, discharging rule to open .judgment in case of Adair & Reiff v. Thomas R. Decker.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment.
    Wanner, J., filed the following opinion:
    The defendant asks the court to set aside the fi. fa. in this case and to open the judgment and .let the defendant into a defense, on the ground of payment of the several debts secured by this collateral judgment. • ■
    His petition contains a general allegation of the payment of a certain note of $1,000 indorsed by Adair & Reiff for defendant’s accommodation, and of other notes amounting to $500 given by him for tobacco purchased from them. But no details of the payment are given in the petition to open this judgment, and though the execution plaintiff denied said above payments in the answer'filed, the defendant has offered no further evidence to the court to sustain his allegation of payment.
    It clearly appears, however, from the testimony of the execution plaintiff and others, that $750 is still due and owing on a renewal note given by defendant for the unpaid portion of the original $1,000 note covered by this collateral judgment.
    Renewal notes were given from time to time by the defendant, but they were only acknowledgments' of the original debt. It is well settled that they do not constitute legal payments of the debt unless there was an express agreement of the parties to that effect: McCartney v,. Kipp, 171 Pa. 644; Shrew-bury Savings Institution’s Appeal, 94 Pa. 309.
    There is no evidence in this case of such an understanding between the parties. “ It follows, therefore,” as was said in the last cited case, “ that the indebtedness for which the judgment was given as collateral, being still unpaid, the debtor has no standing to allege that the note is not protected by the lien of said judgment.” This was said of a similar renewal note in that case and is precisely applicable to the facts of this case.
    Defendant’s counsel contended that this collateral judgment was only given to secure payment of the several notes named in the petition, but the evidence submitted by the execution ■plaintiff, fully establishes the fact that it was a general collateral, and was intended to cover not only the defendant’s then existing indebtedness to the firm of Adair & Reiff, but also such as might afterwards accrue. As there is still 1750 due on a renewal of one of the notes admitted by defendant to have been covered by this collateral judgment, the extent of the collateral is scarcely a material question in this case. The firm would, under the above-recited decisions, clearly be entitled to enforce its collateral judgment against the defendant for this unpaid balance of the debt due it on the original note, although evidenced now only by a renewal thereof. It is claimed by the defendant that the dissolution of the partnership relieves him from payment of this collateral obligation because it was given to the firm only. But by the terms of dissolution all the firm property, assets and claims were assigned to James Adair, the present execution plaintiff, who, in consideration thereof, assumed payment of the debts of the firm. He therefore has the same right to enforce this collateral as the firm itself had, before its dissolution. No authority has been cited to the contrary by counsel and any other conclusion would be manifestly unjust to the creditor and unmerited bjr the debtor, who is under the fullest legal obligation to pay this debt to the assignee of his former creditor.
    There is no merit in the objection made to the sale of the debtor’s exempt property because it was set aside to him in bankruptcy proceedings. That such property may be seized and sold by a judgment creditor (whose judgment waived the exemption) before the final discharge of the bankrupt, has been repeatedly decided by the courts: Wagenseller v. Gemberling, 18 Pa. Dist. Rep. 716 ; Lockwood v. Exchange Bank, 190 U. S. 294; Sharp v. Woolslare, 25 Pa. Superior Ct. 251; Gilmore & Co. v. Smith, 15 Pa. Dist. Rep. 347.
    We find no sufficient warrant either in the law or in the facts of this case to justify the court in staying this execution or opening this judgment. There is clearly now due and owing to the execution plaintiff a portion of the original debt due the firm of Adair & Reiff, greater in amount than the whole of the property seized under fi. fa., and the defendant will suffer no injustice if the law is permitted to take its course in the sale of the same: Parrish v. Felts, 12 Luz. Leg. Reg. Rep. 457.

      The rule to show cause why this fi. fa. should not be set aside, and the judgment note opened, is therefore discharged at the cost of the defendant.
    On reargument Wanner, J., filed the following opinion:
    In a former opinion, the court refused to open this collateral judgment, or to set aside the fi. fa. under which the bankrupt defendant’s exempt property was seized, because there remained unpaid a portion of the original indebtedness secured by this collateral, greater in amount than the value of the goods levied upon; and because the exempt property of a bankrupt may legally be sold by a creditor whose judgment contains a waiver of the benefit of the exemption laws.
    Upon a reargument of the case, defendant’s counsel contended that section 31 of the Act of June 4, 1901, P. L. 404, secures to an insolvent his exemption in all cases, notwithstanding a waiver thereof in his judgment note, and notwithstanding the fact that he may not have made an assignment under the provisions of that act.
    It was urged that the national bankrupt act of 1898 only suspended such parts of the act of 1901, as conflict with said act of congress, which expressly reserves to bankrupts the exemption allowed them by the state laws in force at the time of the filing of the petition in bankruptcy, and, therefore, that section 31 of the act of 1901, protecting the insolvent against any waiver of the exemption by him, is still effective, notwithstanding the proceedings in bankruptcy in the defendant’s case.
    But we do not so understand the act of 1901, and the decisions of the Superior Court of Pennsylvania, on this subject.
    It was held in Potts v. Smith Manufacturing Co., 25 Pa. Superior Ct. 206, after a careful review of the decisions of the courts of this and other states, that the national bankruptcy act was intended to supersede, and does supersede and suspend, all state laws relating to insolvency or bankruptcy; that the act of 1901 is substantially a bankrupt act similar to the national law on the subject, and that congress having passed a bankrupt act, even if the states previous to that had concurrent powers of legislation on the subject, such powers could not be exercised by them, after the enactment of a national bankrupt law.

      The court, therefore, held that the act of June 4,1901, never became operative at all because of the previously existing national bankrupt act of July 1, 1898, as to any of the persons and subjects to which the latter act applies.
    The defendant is admittedly subject to the provisions of the national bankrupt act, and the entire act of 1901, so far as he is concerned, is, therefore, suspended and inoperative. He cannot invoke in this proceeding the benefits of section 81 of said act of 1901, while he and his property are in the clutches of the bankrupt laws of the United States. At the time of the filing of this application for a stay of execution, his exempt property had been set aside to him, but he was not yet finally discharged as a bankrupt.
    The defendant’s contention that section 31 of the act of 1901 protects any and all insolvent debtors against a waiver of exemption, and that it is intended to reverse the former decisions of the courts on that subject, is not supported by any decision to that effect, and the act of 1901 does not seem, on careful consideration, to bear that construction. . Its exemption clause only speaks of certain property which the insolvent shall be entitled to retain “ out of his assigned estate,” and as to which no waiver shall be effective. To so enlarge this language of the act as to include in its protection insolvent debtors generally, irrespective of any proceedings under said act, as contended for by the defendant’s counsel, would be to give to every insolvent debtor in every execution, the' opportunity of escaping with $300 worth of property in spite of his contract waiver of the exemption. Though the Supreme Court of Pennsylvania in Firmstone v. Mack, 49 Pa. 387, intimated that if the question were a new one it would reject a debtor’s waiver of his exemption, yet the court has ever since followed precedent, and enforced the waiver. .
    We cannot believe that this section of the act of 1901 was inserted to reverse the decisions of the courts of last resort on this subject, and to introduce.a new general rule on the subject of exemptions. A simple general act to that effect, or a clear statement of that purpose in the title of this act, would have been the proper method of accomplishing that purpose. To annul any waiver made previous to the passage of this act would be clearly unconstitutional, because it would impair the obligation of an existing contract. In Weist v. Wuller, 210 Pa. 143, the Supreme Court of Pennsylvania held that where the debtor had waived the stay of execution, his assignee for the benefit of creditors had no standing, under the subsequent provisions of the act of 1901, to demand a stay.
    The decisions of the courts wherein it has been held that a judgment creditor of a bankrupt in whose favor the latter had waived the exemption, can sell the exempt goods of the bankrupt, are all based necessarily upon the validity of the waiver. They sustain it notwithstanding the provisions of the act of 1901, and an examination of the facts of the cases, shows that in some instances the waiver had been made subsquent to the passage of the act of 1901: Illfelder v. Montgomery, 14 Pa. Dist. Rep. 25; Lafferty v. Patton, 14 Pa. Dist. Rep. 255.
    Finding no sufficient authority in the statutes or in the decisions of the courts to apply said 31st section of the act of 1901 to this case, we adhere to the conclusion reached in the former opinion filed in this case and, therefore, discharge the rule at the cost of the petitioner.

      Error assigned was the order of the court.

      J. Gr. Gclessner, with him K. W. Altland, for appellant.
    The exemption allowed by section 31 of the Act of June 4, 1901, P. L. 404, does not apply to bankrupts under the national bankrupt law: In re Tilden, 1 Am. R. R. 300; Citizens’ Nat. Bank v. Gass, 29 Pa. Superior Ct. 125; Potts v. Smith Mfg. Co., 25 Pa. Superior Ct. 206 ; Griswold v. Pratt, 50 Mass. 16 ; Hull’s Est., 10 Pa. Dist. Rep. 661.

      Elmer S. Welsh, for appellees.
    Where the constitution of the United States leaves in the states and in congress concurrent power over a particular subject, and congress has exercised its power over such subject, the control of the states over such subject is prohibited: Ranck’s Estate, 14 Pa. Dist. Rep. 496; Fister’s Estate, 21 Montg. 43; Imperial Stain., etc., Co.’s Estate, 6 Lackawanna Jurist, 146; Clark Electrode Co.’s Estate, 9 Del. County Rep. 458; Potts v. Smith Mfg. Co., 25 Pa. Superior Ct. 206; Illfelder & Co. v. Montgomery, 29 Pa. C. C. Rep. 622; Lafferty v. Patton, 14 Pa. Dist. Rep. 255; Myers’s Estate, 14 Pa. Dist. Rep. 859; Myers’s Est., 19 York, 21; Gilmore v. Smith, 15 Pa. Dist. Rep. 347; Wagenseller v. Gemberling, 29 Pa. C. C. Rep. 285; Tyler v. Parliman, 30 Pa. C. C. Rep. 152.
    October 7, 1907:
   Opinion by

Rice, P. J.,

The defendant’s application in the court below was, first, to open the judgment and let him into a defense ; second, to set aside the execution and the levy made thereunder. The opinion of the learned judge below contains a full and accurate recital of the facts essential to a determination of the first branch of the defendant’s application, and we fully concur in his conclusion and in the reasons given by him therefor. We also have reached the same conclusion with regard to the second branch of the application, but differ slightly, although, perhaps, not materially, in the method by which it is reached. What we shall have to say will relate to the question of the liability of the property to execution.

The judgment was entered on January 5, 1906, upon a promissory note dated October 26, 1904, containing a warrant to confess judgment and a waiver of the benefit of any exemption law; on January 10, 1906, the defendant filed his petition in the United States district court and was adjudged a bankrupt; on February 7, 1906, the trustee in bankruptcy set apart to him certain property under his claim to have the benefit of what is commonly called the $300 exemption law of Pennsylvania; on February 8, 1906, an alias fi. fa. was issued upon the judgment, by virtue of which the personal property* thus set apart to the defendant was levied upon. It does not appear that the defendant has been discharged in bankruptcy.

Under the bankruptcy act of 1867 it was held that property generally exempted by the state laws from the claims of creditors was not part of the assets of the bankrupt and did not pass to the assignee, but that such property must be pursued by those having special claims against it in the proper state tribunals. Speaking of that act, Justice Bradley said: “In other words, it is made as clear as anything can be that such exempted property constitutes no part of the assets in bankruptcy. The agreement of the bankrupt in any particular case to waive the right to the exemption makes no difference. He may owe other debts in regard to which no such agreement has been made. But whether so or not, it is not for the bankrupt court to inquire. .The exemption is created by the state law, and the assignee acquires no title to the exempt property. If the creditor has a claim against it, he must prosecute that claim in a court which has jurisdiction over the property, which the bankrupt court has not:” In re Bass, 8 Woods, 382. In Lockwood v. Exchange Bank of Fort Valley, 190 U. S. 294 (23 Sup. Ct. Repr. 751), the same construction was given to the act of 1898. Mr. Justice White, after quoting the foregoing remarks of Mr. Justice Bradley, said : “ The fact that the act of 1898 confers upon the court of bankruptcy authority to control exempt property in order to set it aside, and thus exclude it from the assets of the bankrupt estate to be administered, affords no just ground for holding that the court of bankruptcy must administer and distribute, as included in the assets of the estate, the very property which the act, in unambiguous language, declares shall not pass from the bankrupt or become part of the bankruptcy assets. . . . The act of 1898, instead of manifesting the purpose of congress to adopt a different rule from that which was applied, as we have seen with reference to the act of 1867, on the contrary, exhibits the intention to perpetuate the rule, since the provision of the statute to which we have referred in reason is consonant only with that hypothesis.” This is plain enough, but it will not be out of place to notice in connection with the foregoing extracts from the opinion.that the order reversing the judgment of the district court and remanding the proceeding was accompanied by direction “ to withhold the discharge of the bankrupt, if he be otherwise entitled thereto, until a reasonable time has elapsed for the excepting creditor to assert, in a state tribunal, his alleged right ” (arising out of a waiver of exemption in the note) “ to subject the exempt property to the satisfaction of his claim.” See also Sharp v. Woolslare, 25 Pa. Superior Ct. 251. It is apparent from the foregoing that the question, whether as against the plaintiff the defendant is entitled to claim the exemption notwithstanding the waiver contained in the note, is to be determined by the state law. Its determination cannot be affected by the fact that the goods claimed were set apart to the defendant in the bankruptcy proceeding, unless there is something in the state law giving that fact, or the fact of the defendant’s insolvency, a conclusive effect as against the waiver. Notwithstanding regrets expressed in Firmstone v. Mack, 49 Pa. 387, that the court had not held differently at the beginning, nothing was better settled in Pennsylvania than that the right of a debtor to claim the benefit of the exemption law of 1849, was a personal privilege which could be waived. But it is claimed that the law as to waiver of the exemption has been changed by the thirty-first section of the Act of June 4,1901, P. L. 404, which provides : “ That an insolvent shall be entitled to the same exemption out of the assigned estate, as he would be had an execution been issued against him; and his right thereto shall not be denied for or by reason of the character'of any claim presented or by reason of any waiver in any contract or judgment or by reason of failure to reserve it in the deed of assignment.” It is claimed on the other hand that the act of 1901 and all of its provisions are in abeyance as to any of the persons and subjects to which the national bankruptcy act applies: Potts v. Smith Mfg. Co., 25 Pa. Superior Ct. 206. To this the appellant’s counsel reply that the national bankruptcy act permits the state court to apply the state exemption law that is in force immediately prior to the bankruptcy proceeding, which in this case was the thirty-first section of the act of 1901. The conclusive answer to the latter part of this contention is, that that section does not apply to insolvents or the estates of insolvents in general. It does not create a new exemption, but simply gives the insolvent who has taken advantage of its provisions the benefit of existing exemption laws and declares that the right of such person to the exemption shall not be denied for or by reason of a waiver in any contract or judgment. The case of Citizens’ National Bank v. Gass, 29 Pa. Superior Ct. 125, was a case where the assignor for the benefit of creditors claimed exemption out of the assigned estate, and the property claimed was regularly set apart to him under the provisions of the act of 1901. No such case is presented here. The fact that the defendant is insolvent, of course is undisputed. But if the legislature had intended to enact generally that insolvency of the debtor at the time the exemption is claimed shall defeat the waiver, we think they would have' said so in plain and unequivocal terms. Under no fair construction of-the act of 1901 can it be held that this was the intention of the legislature. Therefore, the question, whether such a law could under the federal constitution be enacted by a state legislature and put in force during the existence of a national bankruptcy law, does not arise in this case.

The- order is affirmed and the appeal dismissed at the costs of the appellant. '


source: Caselaw Access Project

license: Public Domain

text:
    Ackerman, Appellant, v. Ackerman.

      Will — Construction—Remainder-man—Life estate — “Her and my heirs ” — Husband and wife — Estate tail.

    Where a husband executes a deed for a nominal consideration of all his estate, real, personal and mixed, to his wife, naming her, “her and my heirs,and assigns,” and it appears that at the date of the deed he had living one child by his first wife and two by the wife named in the deed, the wife takes an estate for life, and upon his death an interest in remainder vests in the child of the first wife, and upon the death of the life tenant the children of such child, he having died intestate in the meantime, are entitled to a share in possession in the real estate covered by the deed.
    Whilst the precise words, “heirs of the body,” are not necessary to the creation of an estate tail, it is requisite that the heirs shall be limited to be procreated by, or begotten on, some body certain, either by express words or by words amounting to so much. It results that a conveyance to A, and the heirs of the grantor and the heirs of the grantee, even though the grantor and the grantee are husband and wife, neither by express words nor by express implication creates an estate tail, which by virtue of the act of 1855 becomes an estate in fee simple. And it is very clear that a granting clause in that form does not, ex vi termini, vest a fee simple in severalty in A. Further, applying the rule nemo est haeres viventis, it is beyond controversy that such a grant would not, eo instanti, vest an estate in fee simple in A and the living children of the grantor and of the grantee as tenants in common.
    In this state, when the word “heirs” is used as a word of purchase, it,means “statutory heirs” — those persons designated by the intestate act to take the estate not disposed of by last will and testament.
    Argued March 14, 1907.
    Appeal, No. 17, March T., 1907, by plaintiff, from judgment of C. P. Dauphin Co., for defendant on case stated in suit of John P. Ackerman et al. v. John M. Ackerman.
    Before Rice, P. J., Porter, Henderson, Morrison, 0 ready, Head and Beaver, JJ.
    Reversed.
    Case stated in ejectment for land in borough of Middletown.
    The opinion of the Superior Court states the case.
    The court in an opinion by Kunkel, P. J., entered judgment for defendant.

      Brror assigned was in entering judgment for defendant on the case stated.

      Levi B. Alriaks, for appellants.
    The children of Ansel Ackerman, deceased, are not to be excluded from what their grandfather, Isaac Ackerman, considered their inheritance because of the deed of settlement: Baker v. Chalfant, 5 Wharton, 477 ; Luce v. Harris, 79 Pa. 482; Hauer’s Estate, 16 Pa. Superior Ct. 257; Lehman v. Lehman, 29 Pa. Superior Ct. 60; Malone v. Dobbins, 23 Pa. 296; Nightingale v. Quartley, 1 Durn. & East, 630; Morris v. Stephens, 46 Pa. 200. The great rule of interpretation, with respect to deeds and contracts, is to put such a construction upon them as will effectuate the intention of the parties, if such intention be consistent with the principles of law: Huss v. Stephens, 51 Pa. 282; Bagshaw v. Spencer, 1 Ves. 142; Stoever v. Stoever, 9 S. & R. 434; Packer v. Noble, 103 Pa. 188; Wolford v. Morgenthal, 91 Pa. 30; Criswell v. Grumbling, 107 Pa. 408; Hague v. Hague, 161 Pa. 643.

      H. L. Nissley, for appellee.
    -The grantor’s mind was positively fixed upon the words “ her and my heirs, ” and it must be presumed that he knew their exact meaning and purposely used them as he did in this conveyance. There is nothing in the grant to indicate that heirs meant children: Auman v. Auman, 21 Pa. 343; Seybert v. Hibbert, 5 Pa. Superior Ct. 537; Physick’s App., 50 Pa. 128; Nice’s App., 50 Pa. 143; Dobson v. Ball, 60 Pa. 492. The plaintiffs herein are the children of a son of the grantor by a former wife, and are not the heirs of both grantor and the wife named in the grant, and are not the heirs of the life tenant: Jones v. Morgan, 1 Bro. C. C. 206; Tucker’s App., 75 Pa. 354; Ashhurst’s App., 77 Pa. 464,

      October 7, 1907:
   Opinion by

Rice, P. J.,

In consideration of #1.00 and his natural love and affection for her, Isaac Ackerman conveyed — to quote from the deed— “ unto her, my said wife, Sarah Ackerman, her and my heirs and assigns, all my estate, real, personal and mixed, that is to say,” — here follows a description of divers lands, buildings and chattels — “and all of my effects whatsoever, .... to have and to hold the said estate hereby granted and assigned unto her, the said Sarah Ackerman, her and my heirs and assigns and to her only proper use and behoof for herself and her and my heirs and assigns.” At the date of this deed and at the date of his death intestate about two years later, Isaac had three children — Ansel, a son by his deceased wife, and John M. and Mary C., a son and a daughter by his second wife Sarah. After the death of Isaac, Ansel died intestate, leaving to survive him a widow and three children, and at a later date Sarah conveyed the land in dispute by deed in fee simple to her son John M. After her death, the children of Ansel brought this action of ejectment against John M. and claim to recover one undivided third part of the land.

If the words, “ her and my heirs,” must be interpreted so as to exclude every person who at the death of Sarah was not an heir of both Isaac and Sarah, the plaintiffs have no case. But however strict be the rule of law as to the interpretation of the word heirs, there is no rule of law, which, without regard to the intention of the grantor, compels such construction of the words “ her and my ” as would exclude the heirs of the grantor by his first marriage. Nor can it be truthfully said that, irrespective of. rules of law, the phrase itself is so plain and unambiguous as to preclude inquiry as to the meaning the parties intended to be taken from it. If analogous precedents be needed to support these preliminary statements, we may cite Luce v. Harris, 79 Pa. 482, and Lehman v. Lehman, 29 Pa. Superior Ct. 60 ; s. c. 215 Pa. 344. In the former case a devise of land to Jacob and his wife Eliza, to be “ equally divided among their children at their death,” was construed to include the children of Jacob by a former wife. In the latter case, the children of the insured by a former wife were held entitled to share in the proceeds of a policy of life insurance, which was issued after his second marriage, and by its terms was payable to “ Ms wife, in trust for herself and their cMldren.” In Roe, dem. Nightingale v. Quartley, 1 Term Rep. 630, a devise was by way of remainder to the right heirs of Walter Read and Mary his wife, forever, and the court observed : “ It has been argued that this description of the right heirs of Walter and Mary must either mean the heirs of the survivor, or else it must mean to give an estate in moieties to the heirs of each; and if so, the plaintiff can only be entitled to a moiety. But we are of opinion that the heirs of Hester” (which heirs claimed as being the heirs of the marriage of Walter and Mary, in opposition to a half-sister of Hester, who was Walter’s daughter by a second wife) “ought to take the whole.” In support of this conclusion the court said: “ In the first place we think it may plainly be collected from the will that such was the testator’s intention, which ought in all places to govern, if not contrary to any rule of law.” The court then specifically referred to. the other provisions of the will which Were considered to show the testator’s intention; thus implying, seemingly, that the result might have been different, if those other provisions of the will had disclosed a different intention. We are unwilling to concede that the Pennsylvania decisions above cited are in irreconcilable conflict with the English decision properly understood; they certainly are in harmony with it in this, that in the construction of a will, or other instrument of the same nature, the actual intention is the primary thing to be considered. Sometimes a rule of law, like the rule in Shelley’s Case, operates to defeat the intention, whether of a deed or a will; but we have high authority for saying, that “ the intention of a deed is as much the governing rule of construction as in a will, except that the former still requires formal words of limitation to make an estate of inheritance in conveyances of real estate: ” Sharswood, C. J., in Phillips’s Appeal, 93 Pa. 45. This is certainly the case so far as the construction of the words “ her and my ” is concerned; that is, it is as much a question of intention as if we were construing the same words in a will. We have here a deed whereby a man parts not only with Ms land, but with all of his property real, personal and mixed, for a nominal pecuniary consideration. The same reasoning, which, in the construction of a will or a policy of life insurance, would lead to the conclusion that in the use of the words “her and my ” he did not deliberately premeditate the exclusion of his living son by á former wife, or the issue of that son,.if he or they should answer to the other part of the'description at the time the estate granted the heirs was to vest in interest, leads irresistibly to. the same conclusion in the construction of this deed. Having regard to all those considerations that may be regarded in ascertaining the actual intention of the grantor, we are inclined to the opinion that all persons that would have been included in the description “her heirs and my heirs,” were intended to be included in the elliptical expression “ her and my heirs.” It may be objected to this construction that, in the event of the death of the children of their. marriage before the death of Sarah, it might let in heirs of Sarah who would not be of the blood of Isaac. This was a possibility which the grantor may not have thought of, or, if he did think of it, which he regarded as too remote to require that he provide against it. The objection is worthy of consideration, but it is not nearly so weighty as the objection to the construction which would exclude altogether his son by his first marriage and the issue of that son. In view of the circumstances, a grant in favor of his heirs and her heirs was a natural one, indeed, more natural than one that would have disinherited one of his sons; and as the words are susceptible of that construction, we proceed to a consideration of the questions that would arise if he had chosen that form of expression.

Whilst the precise words, heirs “ of the body,” are not necessary to the creation of an estate tail, it is requisite that the heirs shall be limited to be procreated by, or begotten on, some body certain, either by express words or by words amounting to so much : Beresford’s Case, 7 Rep. 41; 2 Preston on Estates, 484, 490; 2 Blackst. Com. 114; Lessee of Hall v. Vandegrift, 3 Binney, 374; McIntyre v. Ramsey, 23 Pa. 317; Jones v. Jones, 201 Pa. 548. It results that a conveyance to A, and the heirs of the grantor and the heirs of the grantee, even though the grantor and the grantee are husband and wife, neither by express words nor by necessary implication ■ creates an estate tail, which by virtue of the act of 1855 becomes an 'estate in fee simple. ' And it is very clear that a granting clause in that form does not, ex vi termini, vest a fee simple in severalty in A. Further, applying the rule nemo est haeres viventis, it is beyond controversy that such a grant would not, eo instanti, vest an estate in fee simple in A and the living children of the grantor and of' the grantee as tenants in common. See Coursey v. Davis, 46 Pa. 25; Crawford v. Forest Oil Co., 208 Pa. 5 ; also Hague v. Hague, 161 Pa. 643, wherein it is declared that the case of Shirlock v. Shirlock, 5 Pa. 367, “ cannot now be regarded as authority.” These observations lead to the conclusion, in which we concur with the learned judge below, that the deed conveyed to Sarah an estate for life only, with remainder in fee to those who fall within the description, “ her and my heirs; ” but, as has been seen, we differ from him, in that we interpret that clause as not excluding any heir of the grantor.

In this state, when the word “ heirs ” is used as a word of purchase, it means “ statutory heirs ” — those persons designated by the intestate act to take the estate not disposed of by last will and testament: Clark v. Scott, 67 Pa. 446. We are of opinion that the word must be given that interpretation here; but it was uncertain who would be the heirs of Isaac, and who would be the heirs of Sarah. If Isaac had survived both Ansel and Sarah, it would seem that the children of Ansel would not be entitled to take, because at her death they would be neither heirs of Isaac nor heirs of Sarah. But this did not happen. When Isaac died Ansel, his son by his first wife, and John M. and Mary, his children by his second wife, became his heirs. They answered to the description, “my heirs.” But as it was not certain that no other children would be born to Sarah by a second marriage, the share or shares that the heirs of Isaac would take must await the termination of the particular estate; at least, that view is most favorable to those who might claim as the heirs of Sarah alone, and for present purposes may be taken for granted. If, therefore, Ansel had survived Sarah, the life tenant — no other children having been born to her by a second marriage — the persons who at the termination of the particular estate would have answered to the description, “ my heirs,” would have been Ansel, John M. and Mary. In that event Ansel would have taken a third of the whole or of a moiety, depending upon considerations hereafter to be noticed. But Ansel did not survive the life tenant, and, strictly speaking, the children of Ansel would not answer to the description, my heirs in being at the termination of the life estate. Hence, it becomes necessary to determine the time as of which it was intended that the persons within the description, “ my heirs,” should be ascertained. The law favors vested remainders and their vesting at the earliest possible moment. There being nothing in the context, or in the extrinsic circumstances that may be considered, to show a contrary intention, we conclude that at the death of Isaac the remainder to his heirs vested in interest at once, the time of enjoyment, however, being postponed until the termination of the life estate. They constituted a class of persons who, in any event, would take a moiety upon the termination of the life estate, and would take the whole, in the event which happened, namely, the death of Sarah, without other heirs than those who were also heirs of Isaac. In this view the title of Ansel became complete on the death of his father, and no subsequent change in the circumstances of the family of his father could altogether divest the right thus acquired; upon Ansel’s death intestate his share passed to his children, and upon the death of Sarah, the life tenant, their right to the immediate enjoyment of the share or interest which Ansel would have taken, if he had survived her, became complete. The result of our investigation is to preserve that equality among the children of the donor which there is reason to believe was intended by him; and this is a weighty consideration in the construction of a will or of a deed of this kind.

The judgment is reversed, and judgment is now entered in favor of the plaintiffs for an undivided third part of the land described in the case stated.


text:
    Baker, Appellant, v. Barley.

      Deed — Deficiency of acreage — Representations—Oral statements — Judgment — Opening judgment — Evidence.
    Where an owner of a farm agrees to sell it to another, and the vendor and the vendee employ the same attorney to draw the deed, purchase money mortgage, and an agreement as to liens, and the attorney draws the papers from the title papers submitted to him, and in each of the three papers the land is described as containing in the aggregate about twenty-three acres, and there is uncontradicted evidence that the papers were read in the hearing of the parties, the vendee cannot, on a rule to open the judgment entered on the bond accompanying the mortgage, allege as a ground therefor, that the vendor prior to the execution of the deed had represented to him that the farm contained thirty acres, and that he would not have bought it if he had known it contained the acreage as it actually existed, and such representation is denied by the vendor. In such a ease the rule applies that all prior negotiations and understandings must be presumed to have been merged in and superseded by the deed.
    Where a contract is executed by a deed and bond, or other security taken for the unpaid purchase money, the rule is not to open a contract so far executed to allow for a deficiency of quantity, nor can there be a recovery for an excess.
    Argued March 13, 1907.
    Appeal, No. 232, Oct. T., 1907, by plaintiff, from order of C. P. Bedford Co., Feb. T., 1901, No. 136, making absolute rule to open judgment in case of Mary Baker v. William G. Barley and Annie Barley.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Rule to open judgment.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court making absolute rule to open judgment.

      J. II. Longeneolcer, with him D. S. Brumbaugh, for appellant.
    In transactions like this all preliminary negotiations, articles, executory contracts or understandings, are merged in and superseded by the deed and when it is executed become null and void, in the absence of clear and indubitable proof of fraud, accident or mistake in the execution of the conveyance. There is no such proof: Haggerty v. Fagan, 2 P. & W. 533; Wilson v. McNeal, 10 Watts, 422; Creigh v. Beelin, 1 W. & S. 83; Madore’s App., 129 Pa. 15; Gangloff v. Smaltz, 18 Pa. Superior Ct. 460; Blood v. Crew Levick Co., 177 Pa. 606; Yaryan Co. v. Pa. Glue Co., 180 Pa. 480; Russell v. Glass Works, 6 Pa. Superior Ct. 118.
    The proof is abundant that the defendant heard the quantity of acres read three times in as many different papers before signing the mortgage, bond and the agreement about liens; but if he had not, he could not plead ignorance of their contents on the ground that he could not read well, or read at all, for he was bound to know or find out what they contained: Greenfield’s Est., 14 Pa. 489; Penna. R. R. Co. v. Shay, 82 Pa. 198 ; Hoffman v. R. R. Co., 157 Pa. 174.
    The scrivener acted for both parties, as the agent of each, as he legally could do: Goodwin Gas Stove & Meter Co.’s App., 117 Pa. 514; Mitchell v. Mitchell, 212 Pa. 62.
    It is nowhere directly alleged that the plaintiff fraudulently sought to deceive the defendant, nor is it pretended that there was either accident or mistake in the preparation or execution of the papers. If a fraudulent purpose were specially charged, the proof would have to be clear, precise and indubitable in order to relieve the defendant. There is no such proof: Cummins v. Hurlbutt, 92 Pa. 165; Murray v. R. R. Co., 103 Pa. 37, 43; Campbell v. Patterson, 95 Pa. 447; Hoffman v. R. R. Co., 157 Pa. 174; Spencer v. Colt, 89 Pa. 314; Goggins v. Risley, 13 Pa. Superior Ct. 316; Nulton’s App., 103 Pa. 286; Ogden v. Traction Co., 202 Pa. 480.
    A mere conflict of testimony is no reason for opening a judgment: It is the court’s duty to consider and weigh it, as a chancellor, and pass it on: Applebee’s App., 126 Pa. 385; Lenare’s App., 126 Pa. 400 ; Blauvelt v. Kemon, 196 Pa. 128; Jenkintown Nat. Bank’s App., 124 Pa. 337; Stephan v. Hudock, 4 Pa. Superior Ct. 474.

      B. O. Harder man, for appellee,
    cited: Com. v. Stevens, 178 Pa. 543 ; Renwick Bros. v. Richardson, 5 Pa. Superior Ct. 202; Jenkintown Nat. Bank’s App., 124 Pa. 337; Schettiger v. Hopple, 3 Grant, 54 ; Bartle v. Vosbury, 3 Grant, 277; Wolfe v. Arrott, 109 Pa. 473 ; Cover v. Manaway, 115 Pa. 338; Cridge v. Hare, 98 Pa. 561; Comegys v. Davidson, 154 Pa. 534 ; McGrann v. R. R. Co., 111 Pa. 171.
    October 7, 1907:
   Opinion by

Rice, P. J.,

In March, 1897, William W. Barley, the defendant, purchased from the plaintiff a small farm for the consideration of $800, and in part payment of the purchase price conveyed to her his house and lot for the consideration of $350. For the balance of the purchase money he gave his bond, with warrant of attorney to confess judgment and an accompanying mortgage on the farm. In 1901 judgment was entered on the bond, and in the same year the defendant applied for and obtained a rulé to show cause why the judgment should not be opened. After long delay the rule came on for disposition upon depositions, and from the order making it absolute the plaintiff took this appeal.

In his petition to open the judgment the defendant did not claim that he did not obtain all of the land that the deed to him calls for, nor that there was a preliminary contract for a sale by the acre. What he claims is that in the oral negotiations prior to the drawing, execution and delivery of the deeds and mortgage the plaintiff" and the plaintiff’s husband stated to him that the farm contained thirty acres less one perch; that in fact it contains but twenty-two or twenty-three acres ; that he. was not on the farm and did not know its contents prior to the execution and delivery of the deeds and mortgage, and that he would not have bought it if he had known “ it did not contain more land than it does.” The plaintiff and her husband testified positively that no such statement was made. We infer, although the opinion filed does not make it entirely clear, that it was upon the ground of this dispute that the learned judge below deemed the case a proper one for submission to the jury. If this be the proper inference we think the learned judge was in error as to the materiality of the statement, assuming it to have been made. The uncontradicted evidence shows that the attorney who drew the papers was selected by both parties ; he was as much the attorney of one as of the other. He testified that he drew the deeds and mortgage from the title papers that they brought to him, and, while the plaintiff’s husband testified that he did not recollect this fact, neither he nor the plaintiff denied it. At any rate there is not a word of testimony going to show that the attorney did not draw them in accordance with the directions of the parties, or that any representation as to the quantity of the land, differing from the description contained in the deed and mortgage, was made to him or in his presence, at the time the directions were given or at the time the deed and mortgage were executed, or that anything was said by either party as to the prior statement alleged to have been made by the plaintiff and her husband. The deed describes the land in three parcels : the first by courses, distances and adjoiners, and as containing fifteen acres and sixty-seven perches ; the second by courses, distances and adjoiners,- and as containing three acres and two perches— “ the said tracts together containing eighteen acres and sixty-nine perches net measure,” — and the third as being a timber tract containing five acres, more or less. The mortgage describes the land in substantially the same manner, and a third paper, relating to liens, which was executed by the parties at the same time or a few days afterwards, refers to the land conveyed by the deed as “ containing about twenty-three acres.” There being no evidence that the contents of the papers were misrepresented, or that anything was -said or done at the time of execution to induce the defendant to forego requesting to have them read in his hearing, it would be no answer to this solemn evidence of what the plaintiff intended to sell and the defendant intended to buy, to say that he could not read and that the papers were not read in his hearing: Greenfield’s Estate, 14 Pa. 489. But the conelusiveness of the deed and mortgage as evidence of what was intended to be conveyed does not depend upon the application of the rule which was enunciated by Chief Justice Gibsok in that case, and has been cited and followed in many subsequent cases. The fair interpretation of the testimony of the scrivener is that the papers were read in the hearing of the parties before execution, and neither the defendant nor any other witness testified to the contrary. As to the papers relating to the liens, in which the land conveyed is referred to as containing about twenty-three acres, the testimony is very clear and positive. Four witnesses —one of them called by the defendant ‘himself — testified that it was read in the hearing of the parties before execution, and the defendant did not testify that it was not. All that he was able or willing to testify to on that subject was, “ I don’t remember anything that was said about the number of acres in tbe property at the time the agreement was signed.” This is not a denial of the fact testified to by the other witnesses, nor is it tantamount to an assertion that the paper was not read in such manner that he would have noticed what was said as to the quantity of land if he had given attention to the reading. Having regard to the facts to which we have alluded, upon what theory could a verdict allowing $he defendant an abatement of the purchase price be sustained ? Surely not upon the ground of fraud or mutual mistake. This, it seems to us, needs no argument or citation of authority. And it seems equally clear that such verdict could not be sustained upon the ground that notwithstanding the execution and delivery of the deed and mortgage, the plaintiff is bound by a prior contract to convey thirty acres or to make good the deficiency by an abatement of the price. In the first place the defendant’s testimony, even if believed, does not show that there was such a contract even in parol; the most that it shows is a representation that the land which the parties had in mind contained thirty acres. In the second place, the contract, if contract there was, was not to sell the land at so much an acre, but to convey the farm for a certain price, and this contract was consummated by the execution and delivery of the deeds and the mortgage on March 4, 1897. The plaintiff conveyed the land that she agreed to convey, and there is no material discrepancy between the actual quantity of land and the quantity stated in the deed. This being so, and there not being sufficient evidence to sustain a finding of fraud or mutual mistake, all prior negotiations and understandings must be presumed tb have been merged in and superseded by the deed: Wilson v. McNeal, 10 Watts, 422; Madore’s Appeal, 129 Pa. 15. The question of the right of a vendee to be allowed to recover for an alleged deficiency in quantity of land purchased by him as described in his deed or articles of agreement, has arisen in many cases. In Farmers’ & Mechanics’ Bank v. Galbraith, 10 Pa. 490, Chief Justice Gibson stated the rule'as follows : “ The execution of a conveyance is the consummation of a purchase, after which the parties have no recourse to each other except for imposition or fraud. Such is the rule established by Bailey v. Snyder, 13 S. & R. 160, and several other cases, in which it was ruled that when a conveyance has been made, without a survey, and a bond taken for the purchase money, the contract is definitely closed, except where the actual quantity differs so grossly from the estimate as to be evidence of deceit.” In Coughenour’s Administrators v. Stauft, 77 Pa. 191, Chief Justice Agnew said upon the same subject: “ Where the contract is executed by a deed and bond, or other security taken for the unpaid purchase money, the rule is not to open a contract so far executed to allow for a deficiency of quantity, npr can there be a recovery for an excess.” He cited numerous cases in support of this proposition. See also Kreiter v. Bomberger, 82 Pa. 59, where the subject is fully discussed and the cases are classified by Mr. Justice Shabswood; also Landreth v. Howell, 24 Pa. Superior Ct. 210, and the cases there cited. The facts of this case do not bring it within any of the exceptions to the general rules above stated.

The order is reversed and the rule to show cause is discharged, the costs to be paid by William W. Barley, the appellee.


text:
    Commonwealth v. Jackson, Appellant
    (No. 1).

      Boroughs — Ordinances—Distribution of advertisements — Act of April 3, 1851, P. L. 320.
    An ordinance which forbids the casting of advertisements, handbills, circulars or waste paper upon the streets, alleys, highways or in other public places of a borough is sustainable by the legislative grant to boroughs of the powers to make such laws, ordinances, by-laws and regulations not inconsistent with the laws of this commonwealth as they shall deem necessary for the good order and government of the borough; to regulate, and to exercise all needful jurisdiction over, the roads, streets, lanes, alleys, public squares and common grounds of the borough; to prohibit and remove any obstruction in the highways of the borough, and any nuisances, whether in the highways or in public or private ground; and “to make such other regulations as may be necessary for the health and cleanliness of the borough.”
    If an ordinance, or even the same section of an ordinance, contains two separate prohibitions relating to different acts, with distinct penalties for each, one of which is valid and the other void, the ordinance may be enforced as'to that portion of it which is valid.
    Where a defendant charged with willfully violating a borough ordinance, pleads guilty, and appeals to the court of quarter sessions, he thereby waives mere irregularities in the proceedings, and, to avoid the effect of his plea, he is bound to establish the invalidity of the ordinance as a whole, or to show that his act was not prohibited by the valid part of the ordinance.
    The placing of advertisements in the vestibules of houses may be prohibited by borough ordinance.
    Argued April 8, 1907.
    Appeal, No. 178, April T., 1907, by-defendant, from judgment of Q. S. Allegheny Co., Sept. T., 1906, No. 128, affirming judgment of burgess in case of Commonwealth, Borough of Munhall, v. Ralph Jackson.
    Before Rice, P. J., Henderson, Morrison, Head and Be ayer, JJ.
    Affirmed.
    Appeal from summary conviction.
    The facts appear by the opinion of the Superior Court.

      Error assigned was judgment affirming judgment for plaintiff.

      J. A. Wakefield, for appellant.
    A municipal corporation has only those powers which are expressly given by statute, or which are necessary to carry into effect the objects- of the incorporation: Dillon on Municipal Corporations, sec. 89.
    This ordinance destroys, by prohibiting, the well-known business of distributing circulars and partially destroys the business of merchants by preventing” them from advertising their wares in a cheap and expeditious manner, and thereby violates the section of the bill of rights which gives to the citizens the inherent and inalienable right to acquire, possess and protect property and reputation and of pursuing their own happiness: Village of Des Plaines v. Poyer, 123 Ill. 348 (14 N. E. Repr. 677); People v. Armstrong, 73 Mich. 288 (41 N. W. Repr. 275).

      October 7, 1907:
    Philadelphia v. Brabender, 17 Pa. Superior Ct. 331; s. c. 201 Pa. 574 ; McQuillin on Municipal Ordinances, pages 729 and 730; Livingston v. Wolf, 136 Pa. 519.

      J. Merrill Wright, for appellee.
    It is within the power of the borough acting through its board of health to prohibit or regulate that which is necessary for the preservation of the public health.
    It is a legislative and not a judicial question: Powell v. Commonwealth, 114 Pa. 265; People v. Armstrong, 73 Mich. 288 (41 N. W. Repr. 275) ; Philadelphia v. Brabender, 17 Pa. Superior Ct. 331.
   Opinion by

Rice, P. J.,

The single question which the appellant raises upon this appeal is, whether a borough incorporated under the act of 1851, and its supplements, has power to ordain as follows: “No advertisements in' the form of handbills, posters, flyers or any samples of patent medicine, or of any kind of groceries or merchandise whatsoever, no matter in what form the same may be put up, shall be distributed among the houses or other places in the borough of Munhall, nor shall the same be thrown on the streets, alleys, highways, public places, or on improved or unimproved property within the limits of the borough of Munhall.” As will be seen in the succeeding case, an ordinance which absolutely prohibits the distribution of advertisements within the limits of a borough, except by its licensee, is invalid. But an ordinance which forbids the easting of advertisements, handbills,. circulars or waste paper upon the streets, alleys, highways or in other public places of a borough is sustainable by the legislative grant to boroughs of the powers: to make such laws, ordinances, by-laws and regulations not inconsistent with the laws of this commonwealth as they shall deem necessary for the good order and government of the borough; to regulate, and to exercise all needful jurisdiction over, the roads, streets, lanes, alleys, public squares and common grounds of the borough; to prohibit and remove any obstructions in the highways of the borough, and any nuisances whether in the highways or in public or private ground; and “ to make such other regulations as may be necessary for the health and cleanliness of the borough: ” Act of April 3,1851, P. L. 320. The powers under which the ordinance considered in Philadelphia v. Brabender, 17 Pa. Superior Ct. 331; s. c. 201 Pa. 574, was sustained, were not broader than those above enumerated; therefore, the reasoning of the opinion filed in that case is applicable here, and need not be repeated.

There is no essential connection between the prohibition of this ordinance against the distribution of advertisements in any form or manner, and the prohibition against distributing them in the manner described in the latter part of the section. Therefore, the general principle is applicable that if’an ordinance, or even the same section of an ordinance, contains two separate prohibitions relating to different acts, with distinct penalties for each, one of which is valid and the other void, the ordinance may be enforced as to that portion of it which is valid: 1 Dill. Mun. Corp. (4th ed.) sec. 421; Trickett on Boroughs, p. 125; City of Pittsburg’s Appeal, 115 Pa. 4; Lansdowne Boro. v. Springfield Water Co., 16 Pa. Superior Ct. 490.

The record shows that the defendant was charged with willfully violating the ordinance, that he pleaded guilty, and that upon special allowance of the court he appealed to the quarter sessions. He thereby waived mere irregularities in the proceedings, and to avoid the effect of his plea was bound to establish the invalidity of the ordinance as a whole, or to show that his act was not prohibited by the valid part of the ordinance. He has done neither of these things, and therefore has no just cause to complain of the action of the court in affirming the judgment of the burgess.

The same result is reached, if we go outside the record and take the statement of his counsel that his act was “ passing advertisements in said borough by placing the same in the vestibules of houses.” This act was in violation of the latter part of the ordinance, which, for the reasons given in Philadelphia v. Brabender, must be held to be a reasonable regulation which the borough had power to make.

Judgment affirmed.


text:
    Commonwealth v. Jackson, Appellant
    (No. 2).

      Boroughs — Ordinances—Police power — Taxation—Distributing advertisements.

    A borough has no power to enact an ordinance providing “that no person shall distribute any handbills or other advertising matter in the borough without having previously procured a license so to do from the chief of police of said borough, which license shall be issued to the party applying for the same on the payment of $5.00 per day.” The ordinance is invalid because, first, it is an attempt to impose an unreasonable annual tax, under the guise of a police regulation, and, second, it is not a proper exercise of the police power, because it prohibits all distribution of advertisements, irrespective of their subject-matter, and manner of distribution.
    Argued April 8, 1907.
    Appeal, No. 179, April T., 1907, by defendant, from judgment of Q. S. Allegheny Co., Sept. T., 1906, No. 91, affirming judgment of burgess in case of Commonwealth, Borough of Wilmerding, v. Ralph Jackson.
    Before Rice, P. J., Morrison, Henderson, Head and Beaver, JJ.
    Reversed.
    Appeal from summary conviction.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the judgment of the court.

      J. A. Wakefield, for appellant.
    The ordinance is invalid: Commissioners v. Northern Liberties Gas Co., 12 Pa. 318 ; Livingston v. Wolf, 136 Pa. 519 ; New Hope Borough v. Telegraph Co., 16 Pa. Superior Ct. 306; People v. Armstrong, 73 Mich. 288 (41 N. W. Repr. 275) ; Frazee's Case, 63 Mich. 396 (30 N. W. Repr. 72) ; Carrollton v. Bazzette, 159 Ill. 284 (42 N. E. Repr. 837); Wan Yin, 22 Fed. Repr. 701.

      William A. Jordan, with him S. M. Myers, for appellee,
    cited: Philadelphia v. Brabender, 17 Pa. Superior Ct. 331; s. c. 201. Pa. 574 ; McQuillin on Municipal Ordinances, pages 729 and 783; Livingston v. Wolf, 136 Pa. 519.

      October 7, 1907 :
   Opinion by

Rice, P. J.,

The first section of the ordinance under which the defendant was convicted provides, “ that no person shall distribute any handbills or other advertising matter in the borough of Wilmerding without having previously procured a license so to do from the chief of police of said borough, which license shall be issued to the party applying for the same on the payment of |5.00 per day.” The second section provides that anyone violating the provisions of the ordinance shall, on conviction, pay a fine of not less than $5.00 nor more than $100, and costs, and in default of payment shall be imprisoned, either in the lockup for a period not exceeding five days, or, in the discretion of the burgess or justice of the peace, in the county jail for thirty days. According to the transcript of the proceedings before the burgess, the act for which the defendant was adjudged to pay a fine of $5.00 and costs or undergo an imprisonment for ten days in jail was “passing advertising matter in houses on Westinghouse avenue” in the borough without having procured a license so to do.

The power of this borough to require those who desire to distribute advertising matter therein to procure a license, and to pay a fee for the privilege, is not expressly conferred by any general or local statute. If the borough has the power to prohibit the distribution, except by its licensee, of advertising matter within its limits, it is implied in the general power of boroughs to enact such ordinances as the corporate officers shall deem necessary for the good order and government of the borough, or in one or more of the powers specifically enumerated in section 2 of the Act of April 3, 1851, P L. 320. Therefore, assuming for the moment that the regulation of the distribution of advertising matter generally is within the implied powers of a borough, the ordinance relating thereto must be reasonable and for the common benefit, and must not be oppressive: Commissioners v. Northern Liberties Gas Co., 12 Pa. 318. Whether it is so or not is a question for the court, and in determining it the court will have regard to all the circumstances of the particular borough, the objects sought to be attained, and the necessity which exists for the ordinance: 1 Dill. Mun. Corp. sec. 327; Kneedler v. Borough of Norristown, 100 Pa. 368. If tbe mode adopted for tbe regulation of tbe distribution of advertising matter, whether as a business or as a single act, be by license, the fee exacted for the license must be reasonable, and the amount of it must not be fixed with a view to revenue or to prohibition. “ The form in which the charge is imposed or the name by which it is designated does not conclusively determine the character of the charge: Braddock v. Allegheny County Telephone Co., 25 Pa. Superior Ct. 544. If it is in reality an annual tax, under the guise of a police regulation, and is imposed for revenue only, the municipality must show some express legislative authority to impose it. We are not bound to uphold an ordinance adopted ostensibly as a police measure but used as a mere subterfuge for the purpose of raising revenue. Courts will not sustain municipalities in such abuse of their powers, if it be shown. But if the purpose of the ordinance is police regulation, and it tends to accomplish the object sought, then, under the power to regulate, the ordinance may be sustained, although the municipal charter does not, in so many words, confer authority to license: ” Kittanning Boro. v. Kittanning Consolidated Natural Gas Co., 26 Pa. Superior Ct. 355. Viewing the question in the light of these general principles, we have no hesitation in concluding that a fee of $5.00 a day, which would amount to over $1,500 a year if the privilege were exercised each working day, for the privilege of distributing advertising matter, without regard to the mode of distribution, in a borough having population of 5,000, or thereabouts, is unreasonable and oppressive. To most persons desiring to exercise the privilege it would be prohibitive.

Section 1 of the ordinance must be declared invalid for another reason. The ostensible purpose of the borough in enacting it, as shown by the preamble, was to promote the cleanliness of its streets. As pointed out in the immediately preceding case against this defendant, boroughs have very extensive powers conferred upon them for the accomplishment of that object, and for the full accomplishment of other objects for which the streets are designed. The lawful and reasonable exercise of these powers may, and often does, restrict the liberty of the citizen in matters which, in the absence of the ordinance, would be of common right. He must submit to such restriction for the common good. “ Therefore, while ordinances which unnecessarily restrain trade or operate oppressively upon individuals will not be sustained, yet such as are reasonably calculated to preserve public health ” (and, we add, promote the cleanliness and safety of the public streets), “ are valid, although they may abridge individual liberty and individual rights in respect of property: ” 1 Dill. Munc. Corp. 326. The distinction made by the learned text-writer cannot be better illustrated than by contrasting the ordinance considered in Philadelphia v. Brabender, 17 Pa. Superior Ct. 331; s. c. 201 Pa. 574, with the ordinance in question. In the former, the act prohibited is the casting of advertisements, handbills, circulars and waste paper in places whence, naturally and without further act of the wrongdoer or of anyone else, they are liable to be, and probably will be, blown into the streets. Speaking of that ordinance the court said: “ So far as we can see, the purpose of this ordinance is to prevent the littering up of the streets and the frightening of horses, and we cannot say that the means chosen are not adapted to, and reasonably necessary for, the full accomplishment of that purpose.” On the other hand, the ordinance in question applies generally to the distribution of advertising matter without respect to the form or the subject-matter of the advertisement, or to the manner of distribution. In terms which are not susceptible of a narrower construction it applies as well to advertising matter that is wholly unobjectionable and even desirable for public information, as to that which is objectionable upon the ground of good morals ; it applies as well to the distribution of advertising matter through the mails or by delivery to persons in their homes and places of business, as to the distribution of handbills by casting them upon the streets or upon porches, or steps, or into open vestibules. It is in restraint of trade, it goes far beyond what is reasonably necessary for the accomplishment of any legitimate municipal object, and, unless its plain terms be restricted by unwarranted judicial construction, its enforcement must operate oppressively upon individuals. It may be questioned whether-the legislature, without transgressing constitutional limitations, could thus restrict citizens in the exercise of the common right of advertising. It is clear beyond doubt that a borough cannot, unless the power be given by express words or arise by necessary and unavoidable implication, and that in the present state of the law neither of these conditions exists.

For the two reasons above stated we are constrained to hold that the first section of the ordinance is void.

The judgment is reversed, the proceedings before the burgess are set aside, and restitution is awarded to the defendant of the fine and costs paid by him.


author: Beaver, J.,

text:
    Simon, Appellant, v. Simon.
    October 7, 1907:

      Divorce — Cruel and barbarous treatment — Indignity to person — Evidence.

    The cruel and barbarous treatment relied upon by a wife in a proceeding for a divorce from her husband must be such as endangered her fife.
    The communication of a loathsome disease by a husband to a wife, is such an indignity to her person rendering “her condition intolerable and life burdensome,” as will entitle her to a.divorce, but the fact that such disease was communicated must be established by positive evidence, and not based upon mere suspicion and inference.
    Argued April 9, 1907.
    Appeal, No. 44, April T., 1907, by plaintiff, from decree of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 75, refusing a divorce in case of Sophia Simon v. Philip F. Simon.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, J J.
    Affirmed.
    Libel for divorce. Before Kennedy, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree refusing a divorce.

      E. O. McCrirr, of Marrón Sp McG-irr, for appellant.
    No appearance nor printed brief for appellee.
   Opinion by

Beaver, J.,

The prayer of the libelant is for a divorce a mensa et thoro, and alimony, based upon cruel and barbarous treatment and “ such indignities to the person of petitioner as to render her condition intolerable and life burdensome.”

As has been clearly pointed out in Krug v. Krug, 22 Pa. Superior Ct. 572, and in Fay v. Fay, 27 Pa. Superior Ct. 328, the cruel and barbarous treatment relied upon by a wife in a proceeding for a divorce from her husband must be such as endangered her life. A careful reading of the testimony in this case satisfies us, as it did the court below, that taking the treatment of the wife by the husband as alleged in her testimony as verity, although it was directly contradicted by the husband and other witnesses, her life was never at any time in any danger.

If, therefore, the prayer of the libelant is to be granted, it must be based upon the second distinct cause alleged in her libel, namely, “ indignities to her person which rendered her condition intolerable and life burdensome.”

If the allegation of the wife, as contained in her testimony, that her husband had communicated to her a loathsome disease, could be sustained, this of itself would have been sufficient, under McMahen v. McMahen, 186 Pa. 485, and Baker v. Baker, 195 Pa. 407, not only to have justified, but to have entitled her to a decree such as she prays for; but, upon a careful examination of her testimony, it is clear to us that her allegation is based rather upon suspicion and inference than upon fact, and, inasmuch as she is not corroborated either by the physician who attended her husband or by her own physician and the question is, therefore, left in doubt, we are of opinion that the conclusion of the master that “ The charges of immorality against the respondent have not been sustained ’’ was fully justified. This finding was concurred in by the court below, and, being satisfied, upon a careful reading of the testimony, that the evidence upon this subject is not only not conclusive but is scarcely persuasive, we are of opinion that, this element being eliminated, there is not sufficient evidence to justify a divorce upon the ground of indignities to the person which would render the libelant’s “ condition intolerable and her life burdensome.”

It is sadly manifest from the testimony in this case that the conjugal relations existing between the libelant and the respondent were not such as should exist between husband and wife, but it is not clear by any means that the husband was the only transgressor. The cross-examination of the wife reveals not only a condition of affairs which justified the .court below in saying that “ in any personal encounter the libelant was a match for the respondent,” but the further fact that in the use of villification and intemperate language she was quite as culpable as he; and, whilst this was in no sense a justification of the husband’s conduct, we cannot find a single act of cruelty which endangered the life of the wife, nor such a continued course of indignities to her person as would justify a decree in her favor.

It is true, as pointed out by the court, that the master’s report does not contain the facts upon which an intelligent conclusion can be reached, as to the amount of alimony to be decreed, This difficulty, however, could have been easily obviated by referring the case back to the master for further testimony upon the subject of the income of the husband. Inasmuch, however, as the other branch of the case is not, in our opinion, sufficiently made out, we concur in the conclusion reached by the court below, that “ the divorce in this case must be refused.”

The decree is, therefore, affirmed and the appeal dismissed at the costs of the appellant.


text:
    Stevenson v. Henning, Appellant.

      Judgment — Opening judgment — Principal and agent — Attorney and client — Two innocent parties rule.

    On a rule to open a judgment entered on a judgment note where it appears that the note was signed by the defendant, and that at the time she signed it, she executed as collateral security for its payment an assignment of a portion 'of a claim against her husband’s estate, the defendant cannot be heard to say that she had no recollection of signing the note, and that if she did so, her signature was obtained by the fraud of her attorney, whom she had never authorized to borrow money for her.
    In such a case if the defendant negligently or ignorantly placed in the hands of her attorney the means through which he secured from the plaintiff the amount represented in the judgment, she, although innocent of wrong, must bear the responsibility rather than an innocent party who acted in good faith, relying upon the plain and unmistakable contents of the instruments which she had supplied.
    Argued April 9, 1907.
    Appeal, No 79, April T., 1907, by defendant, from order of C. P. No. 1, Allegheny Co., Dec. T., 1905, No. 313, discharging rule to open judgment in case of M. H. Stevenson v. Cathrin Henning.
    October 7, 1907:
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment.
    The facts are stated in the opinion of’the Superior Court.

      Error assigned was the order of the court discharging rule to open judgment.

      R. L. Smith, with him Trimble Qhalfant, for appellant.—
    The burden is one on the plaintiff to show the special agency of James H. Pprte to make this loan: Philadelphia Trust Co. v. Roberts, 14 W. N. C. 123; Pepper v. Cairns, 133 Pa. 114; Rafferty v. Haldron, 81* Pa. 438; Sergeant v. Martin, 133 Pa. 122.

      J. ff. Wise, with him W. E. Minor, for appellee.
    Where one of two innocent persons is to suffer from the tortious act of the third, he who gave the aggressor the means of doing the wrong, must also bear the' consequences of the act: Bank of Kentucky v. Schuylkill Bank, 1 Parsons’ Select Eq. Cases, 180; Burton’s App., 93 Pa. 214; Shattuck v. American Cement Co., 205 Pa. 197 ; Penna. R. R. Co.’s App., 86 Pa. 80; Louchheim v. Somerset B. & L. Assn., 25 Pa. Superior Ct. 3.25.
   Opinion by

Beaver, J.,

Upon November 10, 1905, judgment was entered upon a bill single, dated November 5, 1897, with warrant of attorney to confess judgment in favor of the plaintiff against the defendant. On March 1, 1906, a petition was presented by the defendant, asking for a rule to show cause why the judgment should not be opened and defendant let in to a defense. Among the grounds alleged in her petition for the opening of the judgment, it was averred: “ That she has no knowledge or recollection of signing the note upon which judgment has been entered in this case and that, if she did sign same, her signature thereto was obtained by fraud and misrepresentation ” by her attorney, J. H. Porte; “that she does not know the said M. H. Stevenson, plaintiff, in whose favor the alleged note is drawn, and that she never was, nor is she now, indebted to him in the sum of $466.23, or any other amount whatever; that she never authorized her attorney, J. H. Porte aforesaid, to borrow money for her or on her account, and that she paid him in full for his services, as her attorney.”

The answer to the petition and the testimony taken establish the fact that the note is signed by the defendant; that J. H. Porte, her attorney in the proceeding referred to in her petition, applied to Stevenson, the plaintiff, fpr a loan for the defendant; that, after the preliminary arrangments were made, he came with the note in question signed by the defendant and drawn to the order' of the plaintiff, and that, accompanying the note, was an assignment of a portion of a judgment obtained by the defendant against her husband’s estate, which is also admittedly signed by the defendant and which was to be held by the plaintiff as collateral security for the note in question.

That the plaintiff advanced the money upon the note and the assignment which accompanied it as collateral security is not seriously questioned. The allegation that Porte did not pay the money directly over to his client is not contradicted. Whether or not he used it in the payment of legitimate costs and expenses connected with the litigation against her husband’s estate in which the defendant was engaged, in which Porte was her attorney, does not affirmatively appear.

No opinion was filed by the court, and we are left to conjecture as to the reasons which influenced it in the discharge of the rule. There is no evidence whatever of any fraud on the part of the plaintiff, or of any collusion between him and Porte, the defendant’s attorneju The money seems to have been advanced in good faith and the manner in which it was done appears by the testimony.

The allegation of the defendant, and the legal ground on which the application for the opening of the judgment was based, is that an attorney at law is not, as such, the authorized agent of his client to borrow and receive money for, or on account of, the latter, and that, inasmuch as the plaintiff did not make specific inquiry as to the agency of the attorney, the defendant is not in law bound to pay the amount of her note and the interest thereon, although regular on its face and payable to the order of the plaintiff.

Without stopping to discuss the abstract question involved, it may be worthy of consideration whether the court below could not have found from the evidence that, under all the circumstances of the case, considering the fact of the litigation in which the defendant was engaged and in which Porte was her attorney of record, considering the negotiations for a loan in which Porte represented her, and considering, further, the fact that, after those negotiations, he came with a note drawn to the order of the plaintiff, and, accompanying it, had an assignment of a portion of the claim of the wife against her husband’s estate, as collateral security therefor, the plaintiff did not have a legal right to infer that Porte was acting as her agent in the premises and that his acts, as such, were legally binding upon her. Whether the court did so find or not we are, of course, unable to say, nor are we prepared to say that such a finding would not have been legitimate under the circumstances: Pepper v. Cairns, 133 Pa. 114.

It appears by the evidence, that in November, 1898, an agreement was entered into by Wise & Minor, attorneys for the defendant, William L. Monroe, attorney for Henry Henning-, a judgment creditor of the estate of the defendant’s husband, and the plaintiff, with J. H. Wise, in and by which it was agreed that the latter should become the purchaser of the property of Louis Henning, about to be sold upon a writ of venditioni exponas, issued upon the judgment of the defendant against her husband’s estate, in which, among other things, it is recited, “ Whereas three hundred dollars of said judgment has been assigned to M. H. Stevenson, which is first payable out of the proceeds of said sale,” and it was also “ agreed to pay the three hundred dollars assigned to M. H. Stevenson, with interest from November 5, 1897, until fully paid.”

It is true that the defendant has no recollection of the transaction recited in this agreement and denies knowledge of the sale therein provided for, but she does not deny'that Wise & Minor represented, her at one time. They are reputable attorneys of the Allegheny county bar. It maybe that the improbability of such attorneys representing the defendant without her knowledge and entering into an agreement as important as this, without informing her of its contents or purport, influenced the court below more than the general and indefinite denials of the defendant. If she had knowledge of the agreement in regard to the sale, she must have known of the claim of the plaintiff, and, if it was not a valid claim, that was the time for "her to speak. To what extent the mind of the court may have been influenced by this consideration we, of course, cannot say, but it is a very significant circumstance in the case.

There- is another feature of the case which seems to us to be conclusive of it. The defendant admits the signing of the note upon which the -judgment was entered, and also the assignment of a portion of the judgment against her husband’s estate which accompanied it. This admission, it is true, is coupled with the allegation that she did not know what she was signing when the papers were executed, but, when the rights of other people were involved, it was her duty to know. If she negligently or ignorantly placed in the hands of her attorney the means through which he secured from the plaintiff the amount represented in this judgment, she, although innocent of wrong, must bear the responsibility rather than an innocent party who acted in good faith, relying upon the plain and unmistakable contents of the instruments which she had supplied. Admitting that neither of the parties directly concerned is guilty of conscious wrong, as was said in Penna. Railroad Co.’s Appeal, 86 Pa. 80 : “ The equities of the respective parties are not equal. Where one of two parties, who are equally innocent of actual fraud, must lose, it is the suggestion of common sense, as well as equity, that the one whose misplaced confidence in an agent or attorney has been the cause of the loss shall hot throw it on the other.” See also Burton’s Appeal, 93 Pa. 214; Shattuck v. American Cement Co., 205 Pa. 197.

Looking at the case from any point of view, therefore, we cannot convict the court of an abuse of discretion in discharging the rule'to show cause why the judgment should not be opened.

The decree is, therefore, affirmed, and the appeal dismissed, at the costs of the appellant.