author: Head, J.,

text:
    Nether Providence School District, Appellant v. Montgomery.

      Constitutional law — School law — Contagious disease — Act of April 11, 1899, P. L. 38.
    The Act of April 11, 1899, P. L. 38, empowering the school districts of the several townships of the commonwealth to exercise the powers of a board of health in each township is not unconstitutional either on the ground that it is special legislation regulating the affairs of school districts, or that it undertakes to divert the school funds to other purposes than the support of the public schools.

      February 26, 1909:
    Argued Nov. 17, 1908.
    Appeal, No. 46, Oct. T., 1908, by plaintiff, from judgment of C. P. Delaware Co., June T., 1905, No. 107, on verdict for defendant in case of Nether Providence School District v. Montgomery.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from settlement of the accounts of the defendant treasurer of the school district of Nether Providence. Issue to determine liability of the defendant for certain expenditures during an epidemic of smallpox. Before Johnson, P. J.
    At the trial the court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      A. B. Geary, for appellant.
    The act of 1899 is unconstitutional: Com. v. Gilligan, 195 Pa. 504; Van Loon v. Engle, 171 Pa. 157; Briegel v. Phila., 135 Pa. 451; Erie School Dist. v. Fuess, 98 Pa. 600.
    The act of assembly does not authorize the expenditure of school funds for such purposes: Page v. Allen, 58 Pa. 338; Fowler v. Scully, 72 Pa. 456; Miller v. Miller, 44 Pa. 170; Miller v. Kirkpatrick, 29 Pa. 226; Brocket v. Ohio & Penna. R. R. Co., 14 Pa. 241; Brown v. West Salem School Dist., 14 Pa. Dist. Rep. 492.

      John E. McDonough, for appellee,
    cited: Stull v. Reber, 215 Pa. 156; Marlette v. Alleppo Twp. School Dist., 34 Superior Ct. 323.
   Opinion by

Head, J.,

The appellant asks us to declare unconstitutional the Act of April 11, 1899, P. L. 38, on the grounds (a) that it is special legislation regulating the affairs of school districts; (b) that it undertakes to divert the school funds to other purposes than the support of the public schools.

The correct standpoint from which a court should approach the consideration of questions of this kind, has been repeatedly-described in many authoritative utterances; fully and forcibly in the recent case, In re Likens, not yet reported. The pith and marrow of them all may be found in these few words quoted from the opinion of the present eminent chief justice in Sugar Notch Borough, 192 Pa. 349: “It must not be lost sight of that the attitude of courts is not one of hostility to acts whose constitutionality is attacked. On the contrary, all the presumptions are in their favor, and courts are not to be astute in finding or sustaining objections.” It is also to be observed that the act mentioned belongs to the class of remedial legislation to which the courts have ever accorded a broad and liberal interpretation.

In disposing of the questions before us, clearness of view will not be promoted by an attempt to analyze and harmonize the multitude of cases wherein the same provisions of the constitution have been considered, but under conditions that vary widely from those now confronting us. But if, starting with the two cardinal principles referred to, we follow the light shed by one or two recent decisions, in cases closely resembling the one at bar, the way to a correct solution of our problem will not be difficult to find.

Turning then to the act we observe that, in form at least, it manifests the intention of the legislature to enact a general, not a special law. Looking to its main purpose and object, as distinguished from the incidents that are involved in these, we discover that it does not deal with 'school districts’ at all. That expression cannot be found either in the title to or body of the act. The territory within which the act is to be operative is state wide, the townships, all of the townships of the commonwealth. Not one is necessarily excluded. The object directly sought to be accomplished throughout that territory is, not the regulation of school affairs, but the preservation of the public health when menaced by sudden assault from pestilence. True, the persons authorized to exercise the powers conferred by the act are those who are the school directors; but if they had been the road supervisors instead, would the act, for that reason, have been fairly classified as road legislation? True also, the act contemplates and authorizes some expenditure of the school funds. In these two incidental respects only can it be said to affect school districts or regulate school affairs. As to such incidents, when necessarily involved in working out a main purpose which is itself the subject of valid legislation, the constitution has placed no yoke on the legislative power. As was said in Sugar Notch Borough, supra, “the restrictions of the constitution upon legislation apply to direct legislation, not to the incidental operation of statutes, constitutional in themselves, upon other subjects than those with which they directly deal.” And this language is quoted with approval in Stull v. Reber, 215 Pa. 156, where the court, upholding the constitutionality of the Act of June 18, 1895, P. L. 203, requiring the exclusion from the public schools of children who have not been vaccinated, said, “but the act is, in no proper sense, a regulation of school districts.”

But even if the act could be fairly regarded as legislation regulating the affairs of school districts, and even if, by its terms, it excludes from its operation school districts within boroughs, it does not follow that it is special legislation within the prohibition of the constitution. When the Supreme Court in Wheeler v. Phila., 77 Pa. 338, determined that the classification of cities was a valid exercise of the legislative power, it did not declare that the power to classify was, by that single exercise of it, exhausted. As often as the like necessity recurs the power may be again exercised and the later children of the same mother will be as legitimate as her firstborn. And the subjects of such proper classification may be townships or school districts as well as cities. We again quote from the same case, already cited, which, in our judgment, practically rules this branch of the case at bar: “It is the settled law since Wheeler v. Phila., 77 Pa. 338, that classification based on genuine and substantial distinctions is within the constitutional power of the legislature, and an act which applies to all the members of the class is general and not special.” The act of 1899 cannot therefore be successfully assailed as special legislation.

But it is further argued that the act is invalid because it undertakes to divert to other and different uses funds which have been raised by taxation or appropriation for school purposes only. State appropriations for the public schools, it is said, are made in pursuance of art. X, sec. 1 of the constitution, which declares: “The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public schools .... and shall appropriate at least one million dollars each year for that purpose.”

When a dangerous and contagious disease makes its appearance in a community one of the first results that follow is the closing of the public schools. If a portion of the school funds can be effectively expended in “preventing the introduction and spread” of such disease, we are unable to see how such expenditure can be regarded as an unlawful diversion of the money from the broad purpose declared in the article and section quoted. We therefore regard the act of 1899 as a valid exercise of the police power of the state, embodied in a general statute which violates no provision of the constitution.

Finally, it is objected that the act, if constitutional, does not warrant the expenditures here complained of. In Marlatt v. Aleppo Township School District, 34 Pa. Superior Ct. 323, practically the same objection was made and passed on by this court. We there briefly expressed our views as to the character of the expenditures that could lawfully be made under the act. We have no desire to repeat or enlarge upon what was there said. Following that case we must hold that this position of the appellant is not tenable. The assignments of error are all overruled.

Judgment affirmed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Enyeart v. Figard, Appellant.

      Broker — Real estate broker — Commissions—Vendor and vendee.

    Where an owner of land agrees to pay commissions to a broker for the sale of it and the latter prepares articles of sale, inserting the name of an alleged purchaser and providing that the purchaser should have a right to decline the property within two months, and the owner signs the agreement, without the alleged purchaser having any knowledge whatever of it, the broker cannot after the death of the owner and after the expiration of the two months, recover his commissions, because the purchaser named on discovering the transaction, but without having any extension from the owmer, bought the land under a new contract from the executor.
    Argued Oct. 29, 1908.
    Appeal, No. 169, Oct. T., 1908, by defendant, from order of C. P. Bedford Co., April T., 1907, No. 26, refusing to take off nonsuit in case of J. Frank Enyeart y. Theophilus Figard and Albert Figard, executors of the last will and testament of John C. Figard, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for commissions for sale of land. Before Woods, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was refusal to take off nonsuit.

      Alvin L. Little, for appellant.
    All that was necessary in order for J. Frank Enyeart to earn his commissions was for him to produce a person who was able and willing to buy upon terms satisfactory to John C. Figard: Clendenon v. Pancoast, 75 Pa. 213; Middleton v. Thompson, 163 Pa. 112.
    He not only did this but he also produced one who was entirely satisfactory to his principal, John C. Figard, as is shown by the fact that Figard entered into a contract with the man he produced then, and when he had done this he could not escape paying J. Frank Enyeart his commissions even though the sale was not consummated: Keys v. Johnson, 68 Pa. 42; Hippie v. Laird, 189 Pa. 472; Pratt v. Patterson, 112 Pa. 475; Reed v. Reed, 82 Pa. 420; Restein v. McCadden, 166 Pa. 340.
    February 26, 1909:

      E. M. Pennell, for appellee.
   Opinion by

Henderson, J.,

The appellant’s action is founded on a written contract by the terms of which he agreed to make sale of the mineral right in 250 acres of land owned by John C. Figard, whose estate the ap.pellees represent. The contract provided for a commission of $3.00 per acre to be paid to the plaintiff within five days after a sale and the payment of the purchase money to the vendor. On the day this agreement was made another contract was prepared by one J. H. Ramsey by which Figard agreed to sell to Daniel L. Hutchinson, Jr., the mineral right referred to in the Enyeart contract. Ramsey claimed to represent Hutchinson in the transaction. Enyeart was present and brought about the agreement for the sale to Hutchinson. This contract was dated January 5, 1905, and provided that the property was to be delivered to the purchaser on or before March 5, 1905, on the payment to the vendor of the' purchase price. The vendee named in the contract had the privilege of declining to accept the property on or before the date last named, in which case the contract was to become null and void. It was further declared to be the true intent and meaning of the agreement that the purchaser had the privilege of purchasing the property within two months of the date of the contract, at which time he was to pay $500, the balance to be paid within two months from that date. Hutchinson did not sign this contract, nor does it appear that he had any knowledge of its existence up to the time of the death of Figard; nor was it signed by anyone as his agent or representative. Ramsey, who claimed to be acting for Hutchinson; witnessed the signature of Figard but did not sign the contract. Figard died July 3, 1905, without any action on the part of Hutchinson toward the completion of the purchase. About four months after Figard’s death Hutchinson learned of the fact, and about the middle of December, proposed to the decedent’s executors to take the property. He testified that he and some persons associated with him were prepared at that time to pay the purchase money, but it does not appear from any evidence offered that he was willing and ready to take the property before that time. The infirmity of the plaintiff’s case is the fact that Hutchinson was never bound to perform and never ready to perform in Figard’s lifetime. An attempt was made to show that the failure to survey the property and define just what was involved in the contract was because of bad. weather in March of that year. But this does not explain the omission to act in April and May and June, if Figard were still willing to carry out his-offer. The evidence does not justify the conclusion that there was an extension of time granted on the contract, which would conclude Figard. No witness was called who testified to any agreement with the vendor that the time was to be extended at the option or convenience of Hutchinson. The evidence tending to show that Figard was willing to sell the property after March 5, falls very short of proof that he had agreed or was obligated so to do. Hutchinson never became bound to Figard, never notified him that he would accept the property, never paid him any part of the purchase money. It cannot be said, therefore, that the plaintiff brought to Figard a purchaser who was ready and willing to perform according to the terms of the contract; Hutchinson had the privilege of purchasing, but never did so at the time fixed in the agreement, nor at any other time to which Figard assented. The failure of the deal was not brought about by Figard, but because Hutchinson was not a purchaser under the contract. The court, therefore, very properly entered a judgment of nonsuit.

The judgment is affirmed^


author: Porter, J.,

text:
    Leven good’s Estate.

      Executions — Judicial sale — Liens—Decedents’ estates — Sheriff’s sale — ■ Widow’s election — Devise at valuation.

    1. The policy that judicial sales shall pass land clear of all liens, other than those expressly saved by statute, is of general application, and the exceptions to it may be reduced to three classes: (1) Where liens are created by last wills and testaments as permanent provisions for wives and children; (2) where from the nature of the incumbrance it will not readily admit of valuation; and (3) where it is plain from the agreement of the parties that the incumbrance was intended to run with the land.
    2. When lands are devised, or the lands of an intestate are taken under proceedihgs in partition subject to a charge the interest of the amount to be paid to the widow during her lifetime, or widowhood, and the principal to be paid to the heirs or legatees upon the happening of the contingency which determines the widow’s interest, a sheriff’s sale of the land upon a lien attaching after the heir or devisee has acquired title and before the happening of the contingency which determines the estate of the widow, will not discharge the lien of the principal secured
    to the heirs or legatees, nor will it discharge the installments' of interest subsequently becoming payable to the widow, although the accrued and annual payments to the widow are payable out of the proceeds of the sheriff’s sale and thereby discharged.
    3. When land is by deed, will or proceedings in partition, made subject to a charge the 'interest upon which is to be paid to the widow annually during her life and at her death the principal to be paid to the heirs or legatees of the decedent, the death of the widow renders the amount of the charge or lien and the interest thereon immediately ascertainable ; it is then due and there is no reason for its remaining longer an incumbrance when the contingency upon which the principal of the charge was to become due and payable has occurred, and a sheriff’s sale of the land discharges the entire lien. When the amount of a charge or lien has become certain; when the event upon which it was to be paid has occurred; when it is due, it is discharged by a sheriff’s sale.
    4. A widow who elects against her husband’s will takes nothing under the will, and the devises and bequests to her are a trust in her for the benefit of the disappointed devisees and legatees to the amount of their interest therein. The part of the estate thus sequestrated to compensate disappointed legatees, consists of the rejected devises and bequests to the widow. Testator cannot be held to have died intestate as to the one-third of his real estate to the use of which during her life, the widow was entitled.
    5. The only remedy for a devisee who is disappointed by the election of a widow not to- take under the will is through an appeal to the equity powers of the court, to procure a marshaling of the assets, and the court may, upon considering all the provisions of will and the entire assets of the estate, enter a decree which will protect and preserve the interests of all the legatees and devisees, and fix the conditions under which charges imposed by the will upon land devised shall be secured and paid. When this is not done the devisees pxust pay the charges to which the devises are by will made subject, and the settlement of each devisee with the widow is a matter entirely outside the will. At law the devisee cannot accept the land and then refuse to pay the charge in the manner by the will required.
    6. Where a testator devises his land to his brother at a valuation, charges an amount specified on the land for his wife during her life or widowhood, and gives the remainder of his estate to his daughter, and the brother elects to take the land, but the widow elects to take against the will, thereafter marries and subsequently dies, and the brother pays to the widow during her lifetime a fixed sum per year without any decree of court, or record of the agreement, a sheriff's sale of the property after the remarriage of the widow will divest the daughter of her right to any interest in the land after the death of her mother.
    Argued Nov. 10, 1908.
    Appeal, No. 26, Oct. T., 1908, by' Frank L. Mauger, from decree of O. C. Berks Co., Oct. T., 1907, No. 37, enforcing a charge on land in estate of Philip Levengood, deceased.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Petition to charge a certain fund on land and decree its payment thereout. Before Bland, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree in favor of the petition.

      Isaac Hiester, for appellant.
    Assuming that the entire valuation money was a charge it was divested by the sheriff’s sale and the amount remaining unpaid was payable out of the proceeds of the sheriff’s sale: Barnet v. Washebaugh, 16 S. & R. 410; Hellman v. Hellman, 4 Rawle, 440; Loomis’s App., 22 Pa. 312; Hanna’s App., 31 Pa. 53; Woods v. White, 97 Pa. 222; Pryer v. Mark, 129 Pa. 529; Darling v. Edson, 4 Pa. Superior Ct. 498; Gilbert’s App., 85 Pa. 347; Lancaster County Nat. Bank’s App., 127 Pa. 214; Coover’s App., 74 Pa. 143; Ferguson’s Est., 138 Pa. 208; Vance’s Est., 141 Pa. 201; Woodburn’s Est., 151 Pa. 586.
    The election of the widow to take against the will and her agreement with the devisee to accept from him during her life the interest on one-third of the valuation money in lieu of dower did not under the law entitle him to retain in his hands the principal of that one-third until her death as a fixed lien not subject to discharge by a sheriff’s sale: Sandoe’s App., 65 Pa. 314; Young’s App., 108 Pa. 17; Batione’s Est., 136 Pa. 307; Evans’s Est., 150 Pa. 212; Armstrong v. Walker, 150 Pa. 585; Collins’s Est., 10 Pa. Dist. Rep. 249; Devecmon v. Kuykendall, 89 Md. 25 (42 Atl. Repr. 963).
    There is no evidence that Anna Maranda, the legatee, agreed that $1,038.30 of the valuation money should remain a charge during the life of the widow or that the purchaser at sheriff’s sale had notice of any such agreement if there was one: Hiester v. Green, 48 Pa. 96; Heist v. Baker, 49 Pa. 9; Strauss’s Appeal, 49 Pa. 353; Trinity Church v. Watson, 50 Pa. 518; Rudy’s Appeal, 94 Pa. 338; Celia’s Estate, 17 Pa. Superior Ct. 428.
    The appellee was negligent in not keeping her claim alive and demanding payment from the proceeds of the sheriff’s sale: Maple v. Kussart, 53 Pa. 348; Garrard v. Haddan, 67 Pa. 82; Jeffers v. Gill, 91 Pa. 290; Dowd v. Crow, 205 Pa. 214.

      C. H. Ruhl, with him John W. Bickel, for appellee.
    By her election, the intestate laws superseded the will as to her and excluded the power of conversion under the will so far as it affected her estate. The devisee could take the real estate, but he took it subject to the widow’s statutory dower: Hoover v. Landis, 76 Pa. 354; Murray’s Estate, 28 Pa. Superior Ct. 474.
    When a testator by his will directs the sale of his real estate, and a widow elects to take her rights under the intestate law, as to her there is no will and no conversion: Cunningham’s Estate, 137 Pa. 621.
    The widow’s estate under the intestate act of April 8, 1833, sec. 1, is “one-third part of the real estate for the term of her life,” and the form in which the law assigns it, leaves its character unchanged: Schall’s App., 40 Pa. 170; Gourley v. Kinley, 66 Pa. 270; Miller v. Leidig, 3 W. & S. 456; Diefenderfer v. Eshleman, 113 Pa. 305; Bachman v. Chrisman, 23 Pa. 162; Hart’s Estate, 7 W. N. C. 162; Medlar v. Aulenbach, 2 P. & W. 355; Hise v. Geiger, 7 W. & S. 273; Fisher v. Kean, 1 Watts, 259; Watterson’s App., 95 Pa. 312; McGowan v. Bailey, 179 Pa. 470; Schall’s App., 40 Pa. 170; Kline v. Bowman, 19 Pa. 24; Woods’s App., 20 W. N. C. 250.
    February 26, 1909:
    Unpaid consideration money is a lien upon land and is to be paid in preference to a mortgage created by the grantee: Neas’s Appeal, 31 Pa. 293; Hartzell’s Appeal, 178 Pa. 284; Ruoff’s Appeal, 188 Pa. 384; Walters’s Estate, 197 Pa. 555.
    But after the widow’s death her interest is a mere lien which a subsequent judicial sale will discharge: Riddle’s Appeal, 37 Pa. 177; Grove’s Appeal, 103 Pa. 562.
    When land is adjudged at the valuation her share is a statutory lien which exists in favor also of those entitled to the principal after her death: Medlar v. Aulenbach, 2 P. & W. 355.
    It need not be secured by recognizance: Good v. Good, 7 Watts, 195; Hart v. Homiller, 23 Pa. 39; Ruoff’s Appeal, 188 Pa. 384; Fishburn’s Appeal, 10 W. N. C. 489.
   Opinion by

Porter, J.,

The court below entered a decree that the land of the appellant “is subject to a charge or lien amounting to $723.17, its proportionate part of the principal of the dower of Rachel Geyer (late Levengood), deceased;” and that said amount, with interest from April 8, 1907, the date of the death of said Rachel Geyer, be paid by said Frank L. Mauger to Anna Maranda Knapp, a daughter of Philip Levengood, deceased, and that upon failure to so pay the payment should be enforced by a writ of levari facias against the land of the appellant. The respondent appeals.

Philip Levengood died on November 4, 1859, and by his last will devised to his brother, Augustus W. Levengood, his farm, “Containing seventy-four acres, being the same more or less, for which he is to pay four thousand dollars.” The will then bequeathed certain personal property to his wife Rachel and provided that “one thousand dollars shall remain in my real estate, the interest thereof must be paid to my wife Rachel annually as long as she stay my widow.” The will then bequeathed “ all what is left after my just debts are paid” to his daughter Anna Maranda, the appellee, with this special provision: “ If it should happen that my said wife should marry again then the amount which remains in my real estate, shall fall to my daughter Anna Maranda.” The will provided for the contingency of the death of Anna Maranda, the daughter, during her minority by the following clause: “If it should happen that my daughter Anna Maranda should die before she arrives at the age of twenty-one years or without heirs, then it shall fall to my brother and sisters or their heirs share and share alike.” The will further directed that in case Augustus W. Levengood, the brother of testator, should refuse to take the real estate at the valuation fixed by the will, then the farm should be sold by the executors, and empowered said executors to make a deed or deeds conveying the same by title in fee simple. Rachel Levengood, testator’s widow, on November 23,1859, filed her election in writing not to take under the will of Philip Levengood, but to claim her “right of dower in his real estate,” and the “interest in his personal property as given to me under the laws of this Commonwealth.” Augustus W. Levengood, on February 8, 1860, filed his written acceptance of the devise of the farm in the following form: “I do hereby give notice that I will accept the real estate of said Philip Levengood, deceased, at the sum of four thousand dollars according to the provisions of the will of said deceased, and that I offer to pay to Rachel Levengood, the widow of said deceased, the sum of sixty-two dollars and thirty cents per annum during her natural life, which annual sum, shall be a lien on said real estate during her lifetime.” Augustus W. Levengood, the devisee, and Rachel Levengood, the widow, entered into a written agreement, on March 5, 1860, which was duly recorded, setting forth the devise of the farm to the former and the refusal of the latter to take under the will and her election to claim her dower in the land and her share of the personal property under the intestate laws; that “for the purpose of settling the amount of dower or yearly payment which said Rachel Levengood shall receive, and to avoid the expense and trouble of an action of dower to ascertain said amount,” it was agreed that said Rachel Levengood should receive from said Augustus W. Levengood, his heirs and assigns, “the sum of sixty-two dollars and thirty cents yearly and every year, during the term of her natural life, the first payment to be made on the first day of January one thousand eight hundred and sixty-one, and every year thereafter, said sum to remain a lien on the aforesaid real estate, and the said Rachel Levengood shall have a right to resort to all remedies given by law for the collection of said yearly payment to which she would have a right to resort at any common law or under the intestate laws of this Commonwealth'. In consideration whereof the said Rachel Levengood does hereby remise, release and quitclaim unto the said Augustus W. Levengood, his heirs and assigns, all her right, title and interest in the real estate aforesaid which she has under and by virtue of the will aforesaid, and it is understood that the yearly payment aforesaid shall be in lieu and stead of her dower at common law or under the intestate laws of Pennsylvania.” On June 2, 1861, Rachel Levengood, the widow, married William Geyer. Augustus W. Levengood and those who from him derive title continued to pay to Rachel Geyer (formerly Levengood) the yearly payment of $62.30 until the time of her death, which occurred on April 8, 1907. Augustus W. Levengood, by deed dated November 14,1868, and duly recorded on the twenty-seventh day of the same month, conveyed to Mahlon Focht eleven acres and fifty-six perches, a part of the tract of seventy-four acres devised to him, as aforesaid; the deed containing the following clause: “and also subject to one other dower of $159.27, the interest thereof to be paid annually to Rachel Levengood, widow of Philip Levengood, deceased, now Rachel Geyer, during her natural life, and after her death the principal sum of $159.27, to be paid by the said Mahlon Focht, his heirs, or assigns, to the legal heirs of Philip Levengood, deceased.” The devisee, on April 2, 1887, conveyed another part, being eleven acres and fifty-four perches, of the tract to Wellington L. Mauger, “subject to the payment of $155.66, the interest whereof to be paid annually to said Rachel Levengood and the principal sum to be paid as provided in the will of Philip Levengood, deceased,” but this deed was not recorded and of its contents neither the purchaser at the sheriff’s sale, hereinafter referred to, nor those who claim under him had notice. Augustus W. Levengood, the devisee, on April 2, 1895, being still the owner of fifty-two acres of the tract, mortgaged the same to Cornelius F. Roland, for $3,700, without any reservation or mention of any dower or other charges, and this mortgage was the same day duly recorded. This mortgage was duly foreclosed and the fifty-two acres of land were sold thereunder to Horace Roland and a deed therefor given by the sheriff on August 22, 1896. The title thus acquired by Horace Roland in the tract has by sundry mesne conveyances become vested in Frank L. Mauger, this appellant, who acquired title on March 14, 1907. The widow of Philip Levengood having died on April 8,1907, Anna Maranda Knapp (formerly Levengood), on November 1,1907, presented her petition to the court below praying that the lands of the appellant be decreed to be charged with the payment of its proportionate part of the principal of the fund upon which the widow, Rachel, had during her lifetime received the interest. The hearing upon this petition developed the facts hereinbefore recited, and the court, being of opinion that those facts constituted the supposed principal of the fund a fixed and continuing lien, which would not be discharged by a sheriff’s sale, entered the decree of which the appellant complains.

The question is, was the land of the appellant subject to a lien or charge, in favor of this appellee, which was not divested by the sheriff’s sale in 1896, and, if so, how did that charge arise? This inquiry leads us first to consider the will of Philip Levengood. The farm was devised to his brother, the devisee, to pay for the same $4,000, and the money to be paid became a charge upon the land. Had the will contained no further provision, the price which the devisee was to pay would have been a lien which would be discharged by a sheriff’s sale, and, so far as the will is concerned, that rule is applicable to all of the purchase money which the devisee was to pay except the $1,000 which was to remain in the real estate so long as Rachel Levengood, the widow, did not remarry: Lancaster County National Bank’s Appeal, 127 Pa. 214; Pryer v. Mark, 129 Pa. 529. The policy that judicial sales shall pass land clear of all liens, other than those expressly saved by statute, is of general application, and the exceptions to it may be reduced to three classes: “1st. Where liens are created by last wills and testaments as permanent provisions for wives and children; 2d. Where from the nature of the incumbrance it will not readily admit of valuation; and 3d. Where it is plain from the agreement of the parties that the incumbrance was intended to run with the land:” Hiester v. Green, 48 Pa. 96; Heist v. Baker, 49 Pa. 9; Rohn v. Odenwelder, 162 Pa. 346. When lands are devised, or the lands of an intestate are taken under proceedings in partition, subject to a charge the interest of the amount to be paid to the widow during her lifetime, or widowhood, and the principal tq be paid to the heirs or legatees upon the happening of the contingency which determines the widow’s interest, a sheriff’s sale of the land upon a lien attaching after the heir or devisee has acquired title and before the happening of the contingency which determines the estate of the widow, will not discharge the lien of the principal secured to the heirs or legatees, nor will it discharge the installments of interest subsequently becoming payable to the widow, although the accrued annual payments to the widow are payable out of the proceeds of the sheriff’s sale and thereby discharged: Kline v. Bowman, 19 Pa. 24; Hartzell’s Estate, 188 Pa. 384; Walters’s Estate, 197 Pa. 555;Schall’s Appeal, 40 Pa. 170; Dickinson v. Beyer, 87 Pa. 274. When land is by deed, will or proceedings in partition, made subject to a charge the interest upon which is to be paid to the widow annually during her life and at her death the principal to be paid to the heirs or legatees of the decedent, the death of the widow renders the amount of the charge or lien and the interest thereon immediately ascertainable, it is then due and there is no reason for its remaining longer an incumbrance, when the contingency upon which the principal of the charge was to become due and payable has occurred, a sheriff’s sale of the land discharges the entire lien: Riddle & Pennock’s Appeal, 37 Pa. 177; Grove’s Appeal, 103 Pa. 562. When the amount of a charge or lien has become certain; when the event upon which it was to be paid has occurred; when it is due, it is discharged by a sheriff’s sale: Woods’s Appeal, 20 W. N. C. 250. The 11,000 which was by the testator charged upon his real estate was so charged for the purpose of making provision for his widow during her widowhood. The widow was to receive the income of that amount so long as she did not remarry. The daughter took under the will a vested remainder in this fund, subject to be divested by her death prior to her attaining the age of twenty-one years. The brother and sisters of the testator took a contingent remainder in the fund, to take effect in case the daughter died during her minority: Batione’s Estate, 136 Pa. 307. The widow having remarried, in 1861, her interest in the fund then terminated, and the amount of the charge became then definitely ascertainable. When, in 1877, Anna Maranda, the daughter, attained the age of twenty-one years her right to receive the fund became absolute, the right of the brother and sisters of the testator therein had terminated, the contingency upon which that right depended not having happened. There was from that time no uncertainty as to the amount of the charge nor the person to whom it was to be paid; it was due, under the provisions of the will. If, therefore, this lien was not divested by the sheriff’s sale, in 1896, the reason for its continuance must be found outside the provisions of the will of Philip Levengood.

The learned judge of the court below held that as the widow had refused to take under the will, electing to take her dower in the land, and the devisee had entered into an agreement with her under the provisions of which he was to pay her 162.30 per year, in lieu of her dower in the land, the land became charged not only for the yearly payment but for an amount of principal sufficient at the rate of six per cent interest per annum to pay that yearly charge, the said principal to be paid to the legatees under the will upon the death of the widow. The amount of the principal was ascertained to be 11,038.30, and the proportion of said amount chargeable upon the fifty-two acres owned by the appellant was fixed at the sum named in the decree. The learned judge held that, by implication of law, the devisee must be held to have retained this amount out of the valuation at which, under the terms of the will, he had taken the farm. It may here be observed that in no record in the line of the title of the appellant, or in any manner connected therewith, is there any mention of a charge upon the land amounting to $1,038.30; nor was there any evidence that Cornelius F. Roland, the mortgagee of Augustus W. Levengood, or Horace Roland, the purchaser at the sheriff’s sale, had either notice or knowledge of any charge or lien amounting to that sum. The court below held, however, that because the devisee was disappointed by the election of the widow to demand her dower in the land and was compelled to pay her a yearly sum in lieu of dower, he not only had the right to retain out of the amount by the will charged upon the land, a sum sufficient to realize at six per cent interest the amount of the yearly payment to the widow, but further that the presumption of law was that the devisee had so retained it.

When Philip Levengood died, in 1859, he left to survive him a widow and child. When the widow declined to take under the will she became entitled, under the Acts of April 8, 1833, P. L. 249, and April 11, 1848, P. L. 536, to a life estate in one-third of the lands of her deceased husband and one-third of the personal estate absolutely. She took this not under the will, but by title paramount thereto, as to her there was no will: Hoover v. Landis, 76 Pa. 354; Cunningham’s Estate, 137 Pa. 621. The widow having thus taken adversely to the will the part of the estate to which she was by law entitled, the will operated upon all that remained of the estate precisely as if the widow had been dead: Coover’s Appeal, 74 Pa. 143; Ferguson’s Estate, 138 Pa. 208; Vance’s Estate, 141 Pa. 201; Woodburn’s Estate, 151 Pa. 586. The widow could, of course, take nothing under the will, and the devises and bequests to her are a trust in her, for the benefit of the disappointed devisees and legatees to the amount of their interest therein: Sandoe’s Appeal, 65 Pa. 314; Gallagher’s Appeal, 87 Pa. 200; Young’s Appeal, 108 Pa. 17; Evans’ Estate, 150 Pa. 212; Armstrong v. Walker, 150 Pa. 585; Batione’s Estate, 136 Pa. 307. The part of the. estate thus sequestrated to compensate disappointed legatees consists of the rejected devises and bequests to the widow. The testator cannot be held to have died intestate as to the one-third of his real estate to the use of which during her life the widow is entitled: Sullivan v. Kieffer, 122 Pa. 135. Augustus W. Levengood took whatever title he acquired to this farm under the will of Philip Levengood; the only interest which he did not acquire under the will was the life estate of the widow, in the one-third, which she held by title adverse to the will. What he did take under the will was two-thirds of the land by absolute title in fee simple, and a vested remainder in the other one-third to take effect after the death of the widow. He was a disappointed devisee, to the extent of the life estate of the widow in one-third of the land. The sole legatee under the will, apart from the widow, was also disappointed, to the extent that the widow took one-third of the personal property absolutely. Applying to this case the principles settled by the decisions above cited, we have this result. The bequest to the widow of the interest on $1,000, charged upon the land, during widowhood, was to be sequestered to compensate the parties disappointed by the widow’s election. The widow declined to accept the interest on that fund, during the period of her widowhood, and by her election imposed upon the land devised a charge greater than the annual interest upon the fund which she had declined. Augustus W. Levengood was, therefore, entitled to the income upon the $1,000 so long as the widow remained unmarried. That is the only fund out of which and the only extent to which he could be compensated for his disappointment as a devisee. The devise of the remainder in this fund, to take effect upon the remarriage of the widow, was specific, and Augustus W. Levengood was not entitled to compensation out of that fund. Augustus W. Levengood knew, at the time he filed his acceptance in writing of the devise, that he was taking the land subject to the right of the widow, and he in plain terms accepted “at the sum of four thousand dollars according to the provisions of the will of said deceased;” and to to that he added, “And I offer to pay .Rachel Levengood the widow of said deceased, the sum of sixty-two dollars and thirty cents per annum during her natural' life, which annual sum shall be a lien on said real estate during her lifetime.” There is here no mention of any charge for a principal sum, the annual interest upon which would be equal to the yearly payment to be made to the widow. There is nothing from which it could be inferred that the nature of the charge upon the land created by the will, the amount thereof, or the time at which or contingency upon which it should become absolutely payable was to be in any manner varied. The law does not favor the creation of liens or any essential change in the nature thereof by mere implication: Hiester v. Green, 48 Pa. 96; Strauss’s Appeal, 49 Pa. 353. The agreement, as to the annual payments in lieu of dower, between Augustus W. Levengood and Rachel Levengood created a charge upon the land for the annual payments only; it contained nothing which could even remotely suggest that any principal sum was to continue a charge during the life of the widow and at her death be paid to the legatees under the will of Philip Levengood. The legatees under the will of Philip Levengood were not parties to that agreement, and even if the devisee and the widow had attempted to change the time at which or conditions upon which the legacy charged upon the land was to become payable they did not have the power to accomplish that result: Loomis’s Appeal, 22 Pa. 312. The deed from Augustus W. Levengood to Mahlon Focht, for a part of the original tract, did make the part of the tract by that deed conveyed subject to a charge of $159.27 the interest thereof to be annually paid to Rachel Levengood, during her life, and after her death the principal to the legal heirs of Philip Levengood; but that deed contained nothing which implied that the amount so charged was a part of a larger amount charged upon the entire tract. So far as that deed indicates the specific amount thus charged upon the part conveyed embraced the whole charge to which the entire tract was then subject. The appellant does not claim under that deed; it conveyed no part of the land which he now owns. The legatees under the will of Philip Levengood, to whom the charge created by the will was payable, were not parties to that conveyance, and the covenants thereof could not have the effect of changing the nature of the lien which was by will created. These circumstances lead us to the conclusion that the purchaser at the sheriff’s sale was not by this deed, nor by the agreements hereinbefore referred to, visited with notice that the nature of the charge created by the will of Philip Levengood had been changed and that there had been fixed upon the land a lien of a character so tenacious that it would not be discharged by a judicial sale: Loomis’s Appeal, 22 Pa. 312; Dickinson v. Beyer, 87 Pa. 274; Maul v. Rider, 59 Pa. 167. The accounts filed by the guardian of the daughter, Anna Maranda Levengood, merely tended to show that the entire amount of the $4,000 charged by the will of Philip Levengood upon the entire tract had not been paid prior to 1877, but they contain nothing which tended to show that the nature of that charge and the conditions under which it should become payable had been in any manner varied. We find nothing in any of the records offered in evidence which could by any reasonable implication be held to be notice to the purchaser at sheriff’s sale that the nature of the charge as originally created by the will had been in any manner varied by any subsequent covenant between parties competent to contract with regard to the same. There never had been any proceedings in the orphans’ court resulting in a marshaling of the assets of the estate of the decedent and a decree of the court that the devisee should be permitted to retain any part of the fund charged upon the land by the will, and pay the interest upon the fund so retained to the widow during her life and the principal to the legatees upon her death. No attempt was ever made to so secure this charge against the rights of purchasers or incumbrancers. The question in this case is not whether the devisee had paid the full amount of the purchase money. It is whether the charge for that purchase money was at the time of the sheriff’s sale of such a nature that it was not by the sale discharged.

The mere election of the widow to take against the will did not entitle the devisee, after accepting the land as devised, to retain one-third of the amount which under the terms of the will he was required to pay. He also had the right of election, he could decline to accept the devise or he could accept it according to its terms. If he accepted he must comply with the conditions imposed by the testator. He could net change the will any more than could the widow. Had the testator during his lifetime sold and conveyed, by title in fee simple, one-third of this tract of land, thus leaving only two-thirds of it when the will took effect, the devisee could not have accepted what remained of the farm and then absolutely refused to pay the full amount charged thereon. The only remedy for a devisee who is disappointed by the election of a widow not to take under the will is through an appeal to the equity powers of the court, to procure a marshaling of the assets, and the court may, upon considering all the provisions of the will and the entire assets of the estate, enter a decree which will protect and preserve the interests of all the legatees and devisees, and fix the conditions under which charges imposed by the will upon land devised shall be secured and paid. When this is not done the devisees must pay the charges to which the devises are by the will made subject, and the settlement of each devisee with the widow is a matter entirely outside the will. At law the devisee cannot accept the land and then refuse to pay the charge in the manner by the will required.

When this land was sold at sheriff’s sale, in 1896, the charge created by the will of Philip Levengood had been for over thirty years ascertainable; for eighteen years there had been no uncertainty as to its amount or the person who was entitled to receive it, during all that period it was due; it was payable out of the proceeds of the sheriff’s sale and was by that sale discharged.

The decree of the court below is reversed and the petition dismissed at cost of the appellee.


author: Per Curiam,

text:
    Commonwealth v. Nichols, Appellant.

      Fish law — Summary conviction — Justice of the peace — Certiorari— Act of May 29, 1901, P. L. 302.
    A conviction before a justice of the peace for violating see. 11 of the' Fish Law of May 29, 1901, P. L. 302, will be sustained where the information sufficiently charges a violation of the section, although the act and the section are not specifically referred to in the information.

      Submitted Nov. 18, 1908.
    Appeal, No. 209, Oct. T., 1908, by defendant, from judgment of C. P. Bradford Co., Dec. T., 1908, No. 11, sustaining judgment of justice of the peace in case of Commonwealth v. Perley H. Nichols.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace.
    Fanning, P. J., filed the following opinion:
    It was charged in the complaint that the defendant “did unlawfully and maliciously take and catch from the waters of the Susquehanna river, by means of an outline, a quantity of game fish, to wit: Five wall-eyed pike, the said game fish being then and there caught on the said outline and not returned to the said waters by said Perley Nichols, according to law contrary to the Act of Assembly in such case made and provided.” The defendant was found guilty of the offense charged in the information and a fine of 125.00 was imposed, “to be distributed as Section 36 of the Act of General Assembly of the Commonwealth of Pennsylvania of May 29, 1901, provides,” together with the costs of suit.
    Defendant’s exceptions are as follows:
    1. The complaint is unlawful and insufficient, not setting forth any acts in violation of any specific act or acts of assembly.
    2. The evidence in the case is insufficient upon which to found a conviction.
    3. The justice failed.to find any specific act or acts committed by the defendant in violation of any specific section of any act or of any specific act of assembly.
    4. The record shows that the defendant was sentenced to forfeit and pay the sum of 125.00, for some offense, presumably fishing with an illegal device, and there is no evidence whatever to found any such conviction upon.
    5. Because said conviction was unlawful and irregular as appears by the said record, and, besides, the justice in the said case was partial and has failed to return only a small portio of the testimony taken in said case.

      The defendant further states that the justice has failed to return with his transcript a full record of the evidence and proceedings in said case.
    The first, third and fourth exceptions may be considered together. Section 11 of the Act of May 29, 1901, P. L. 302, permits, under certain conditions, the catching of eels, catfish, carp and suckers upon outlines. The complaint was evidently drawn, as contended at the argument, for violation of that portion of said section which reads as follows: “Any fish, other than those named in this section, when caught upon such lines, shall immediately be removed therefrom and set free in the waters from which it was taken.” It is objected that no specific section of any act of assembly is referred to as having been violated. ’“ It is essential that a summary conviction shall contain a finding that a special act has been performed by the defendant; that it shall describe it in such a way as to individuate it, and show that it falls within an unlawful class of acts:” Com. v. Nesbit, 34 Pa. 398.
    It is the better and safer practice in proceedings of this nature to refer in the complaint to the particular act alleged to have been violated. We cannot, however, say that the omission in this case is fatal. Here a specific charge is made and circumstances given. The act of the defendant, a single offense, is fully described in the complaint, and if committed, as was found by the magistrate, clearly offended against the act of assembly to which reference has been made.
    It was held in Com. v. Burkhart, 23 Pa. 521, “That when the charge in the complaint and summons is so specific as to give the defendant fair notice of the substance, time and place of the offense charged . , . it ought to be regarded as sufficient. And where the defendant appears and goes to trial without any objection to the complaint and summons on account of indefiniteness, such a defect ought to be considered and cured.” Defendant was represented by counsel and the case evidently closely contested.
    A violation of the provision of the section quoted, subjects he offender to a fine of $25.00, which, under the finding, was 'fully imposed, “to be distributed as Section 36 of the Act of General Assembly of the Commonwealth of Pennsylvania of May 29, 1901, provides.”
    February 26, 1909:
    The fifth exception avers, inter alia, that, “The justice failed to return only a small portion of testimony.” The record shows that the witnesses both for the commonwealth and defendant were duly sworn, and purports to give their testimony, or at least, the substance of it. The evidence on the part of the commonwealth, if believed, was sufficient to warrant the conclusion reached. There was a conflict of testimony, and the question of facts was for the determination of the magistrate, who decided adversely to the defendant. We are of the opinion that the record taken as a whole is self-sustaining.
    And now, March 23,1907, the exceptions are dismissed.
    After reargument:
    Following the decision of this case by the court, it was urged that the prosecutor under his own statement was a particeps criminis; that his testimony is uncorroborated and, therefore, insufficient to warrant a conviction. This could perhaps properly be considered under the second exception. Counsel representing the respective parties agreed that this question might be considered and came before the court October 14, 1907.
    And now, October 25, 1907, after hearing arguments upon the questions involved, we adhere to the conclusion heretofore reached and the exceptions are dismissed.

      Error assigned was the judgment of the court dismissing the exceptions.

      Lilley & Wilson, for appellant,
    cited: Com. v. Nesbit, 34 Pa. 398; Carlisle v. Baker, 1 Yeates, 471; Hester v. Com., 85 Pa. 139.
    L. T. Hoyt, for appellee, filed no printed brief.
   Per Curiam,

We agree with the learned judge below that, although the information did not specify the act and the section thereof alleged to have been violated, it sufficiently charged a violation of that clause of the eleventh section, the Act of May 29, 1901, P. L. 302, which reads: “Any fish, other than those named in this section, when caught upon such lines” (outlines) “shall immediately be removed therefrom and set free in the waters from which it was taken.” This being so, and the record of the justice showing that he adjudged the defendant to be guilty of the offense charged against him in the information, the defendant has no cause to complain because he was adjudged to pay the fine of $25.00, prescribed by the eleventh section. And this is true, although it be conceded for argument’s sake that upon the same information and proofs he might have been subjected to a fine of $10.00 for each fish, $50.00 in the aggregate, under sec. 20. See 12 Cyclopedia of Law and Procedure, 783, 934, IV. The doctrine of Carlisle v. Baker, 1 Yeates, 471, does not apply to such a case, and the decision in Lowrie v. Verner, 3 Watts, 317, is still more plainly inapplicable. For further discussion of the exceptions we refer to the opinion of the learned judge below.

We are not willing to commit ourselves to the proposition that an order upon certiorari to a justice of the peace, merely overruling exceptions to his record, is a final judgment from which an appeal can be taken. But as counsel on both sides, by their agreement printed in the appellant’s paper-book, evidently intend that it shall be treated as such, we will not subject them to further expense and delay in the disposition of the case.

The order of the court and the judgment of the justice of the peace are affirmed at the costs of the appellant, and the record is remitted to the court below to the end that the judgment be carried into effect.


author: Beaver, J.,

text:
    Delaware County Trust Company v. Lukens, Appellant.

      Mortgage — Sheriff’s sale — Constitution—Different owners.

    Where two portions of mortgaged premises become owned by different persons by reason of a sheriff's sale, neither person has preference over the other, and the portions so owned by them, are, as between themselves, liable to the payment of the mortgage debt in proportion to their respective values at the time of the sheriff's sale.
    Argued Nov. 18, 1908.
    Appeal, No. 191, Oct. T., 1908, by-defendants, from order of C. P. Delaware Co., March T., 1905, No. 25, entering judgment for plaintiff non obstante veredicto in case of The Delaware County Trust, Safe Deposit and Title Insurance Company to use of Frank G. Perrin, Assignee, v. Rudolph C. Lukens, mortgagor, and Bernard V. Black, terretenant.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Broomall, J.
    The opinion of the Superior Court states the case.
    Verdict for plaintiff for $164.61. On motion for judgment non obstante veredicto, the court entered judgment for plaintiff for $428.59. Bernard V. Black appealed.

      Error assigned was the entry of judgment non obstante veredicto.

      Garrett E. Smedley, for appellant.
    The Supreme Court, whilst enforcing the doctrine of contribution, has given no general rules for our guidance in all cases. Each case presents its own peculiar equities which control its settlement.
    If the time of the sheriff's sale, or any other time after improvements have been made be inflexibly adopted, it is obvious that great injustice might be done: Leech v. Bonsall, 10 Phila. 384.

      February 26, 1909:

      Albert J. Williams, for appellee.
    This case is ruled by Fisher v. Clyde, 1 W. & S. 544.
   Opinion by

Beaver, J.,

It was well settled in Carpenter v. Koons, 20 Pa. 222, that:

“1. When the mortgagor himself sells the mortgaged premises in pieces for a full price, and at different times, the several parts are liable for the mortgage debt in the inverse order of their alienation.
“2. But this rule does not apply to the case of sales of mortgaged premises made by the sheriff, since the Act of 6th of April, 1830, P. L. 293, under a judgment subsequent to the mortgage.
“3. Two purchasers at a sheriff's sale of pieces of land each sold, since the act of 1830, subject to the same mortgage, are in equali jure; neither has a preference over the other; and the portions so purchased by them, are, as between themselves, liable to the payment of the mortgage debt in proportion to their respective values.”

In delivering the opinion of the court in that case, Mr. Chief Justice Black said: “A man who purchases part of a tract covered by a mortgage, buying the title out and out, clear of incumbrances, and paying a full price for it, has a plain right to insist that his vendor shall allow the remainder of the mortgaged premises to be taken in satisfaction of the mortgage debt before the part sold is resorted to. This being the right of the vendee against the mortgagor himself, the latter cannot put the former in a worse condition by selling the remainder of the land to another person. The second purchaser sits in the seat of his grantor and must pay the whole value of what he bought towards the extinguishment of the mortgage, before he can call on the first purchaser to pay anything. The first sale having thrown the whole burden on the part reserved, it cannot be thrown back again by the second sale. In other words, the second purchaser takes the land he buys subject to all the liabilities under which the grantor held it.

“But if the rule is to cease when the reason of it ceases, it cannot extend to a case where the first sale was made subject to a mortgage; and that is the condition of the present one. The defendant’s deed is older than his adversary’s, but it conveys him nothing but the equity of redemption. The act of 1830 provides that, if the oldest lien be a mortgage, and the land be sold on a judgment, the sheriff’s vendee shall take it subject to the mortgage. When the defendant made his purchase, therefore, he had manifestly no claim either on the mortgagor or on anybody else to pay off the whole mortgage and relieve him entirely from what was probably the most burdensome part of his contract. His share of the mortgage formed a part of the price he agreed to pay for the land. The statute of 1830 entered into and made one of the elements of his contract.

“There is a wide and palpable difference between one who buys land subject to a mortgage, and has a reduction in the price equal to the amount of the lien, and another who pays its full value and stipulates for a title clear of incumbrances. Such a distinction is anything in the world but a 'theoretical subtlety.’ . . .

“Two purchasers at a sheriff’s sale, subject to a mortgage which is a common incumbrance on the land of both, stand on a level. Neither of them has done or suffered anything which entitles him to a preference over the other. Equality is equity. They must pay the mortgage in proportion to the value of their respective lots.”

It is also said in that opinion that: “The value of the lots is to be ascertained and determined by the jury on all the legal evidence which the parties see fit to produce.”

In the case under consideration, the parties agreed as to the valuation of the lots called upon to contribute their proportionate share to the payment of the mortgage at the time of the sale of the first lot, the only question here being practically the time at which the valuation of the several parts should be made. The court below, on the trial of the cause, fixed the time at which contribution should be made according to the relative value of the lots, as of the time of trial, the appellee then insisting that the values should be determined as of the time when the first sale was made. On a motion for judgment non obstante veredicto, the court properly, as we think, accepted this suggestion and entered judgment for the plaintiff for $428.59, being $300, with interest thereon from the time of the sale to the date of the verdict, with interest on $300 of the amount of the judgment from December 18, 1907, the date of the verdict.

The opinion of the court in entering judgment non obstante veredicto is not printed in the appellant’s paper-book. We find it, however, in that of the appellee and, inasmuch as the facts and the position of the parties are fully and succinctly stated by the court, we quote therefrom:

“When the mortgaged premises belonged to Rudolph C. Lukens, he built a mill with steam engine and boiler therein on the mortgaged land, and in doing so he incurred a debt, which being unpaid became the subject of a mechanic’s lien, entered by the creditor against the entire mortgaged land. By appropriate legal proceedings, a curtilage was set apart to this lien, and the mill with its appurtenant curtilage was sold at sheriff’s sale and purchased by the predecessor in title of Bernard V. Black. This sale did not divest the mortgage. The remainder of the premises by sundry subsequent conveyances became vested in George M. Mooré, and this part was released from the mortgage, as above stated. The plaintiff’s contention is that, when the two pieces of the mortgaged premises became owned by different persons, by virtue of the sheriff’s sale of one of them to the predecessor of Bernard V. Black, each of them became liable for a part of the mortgage to be ascertained by their then respective values. The parties have agreed that the value of the parcel belonging to Bernard Y. Black is one-fifth of the value of the entire mortgaged premises. Its share of the mortgage money is, therefore, $400. The contention of the plaintiff, further, is that the release of the other part of the mortgaged land has no legal effect to augment or diminish the liability of the Black parcel, and has no effect to relieve it in any way from its liability as fixed by the sheriff’s sale. And that the claim of the plaintiff being for less than the liability of the Black parcel as thus established, the plaintiff is entitled to judgment n. o. v.
“ On the other hand, the defendant contends that the effect of the release by the mortgagee of the part of the mortgaged premises remaining in the mortgagor, after the sheriff’s sale of his purpart to his predecessor, is to discharge his purpart from all liability for the amount of the plaintiff’s claim. Hence he moves for a new trial, or for a judgment in his favor non obstante veredicto.
“Upon the trial the court was against the defendant’s contention. In this we see no error. Hence the defendant’s motion is overruled.
“The court was with the plaintiff’s contention, except that we were of opinion that the liability of the unreleased part now owned by Bernard V. Black should be fixed by the relative values of the two purparts' at the present time. In this we have concluded we were in error: Fisher v. Clyde, 1 W. & S. 544; Carpenter v. Koons, 20 Pa. 222. We are of opinion that the values at the time of the division by the sheriff’s sale must determine the proportionate part of the mortgage which each must pay.”

In the conclusion thus reached we fully agree, for, as argued by the appellee, “Any other rule would be a hardship on the owner of the remainder of the property, as will appear from the following: By the sale, and he had no control over it, a valuable part of his property was sold; we will assume that the part sold at the time of the sale was worth |1,000, and that the remainder of the property was worth $2,000; that the whole' property was subject to a $2,000 mortgage; on this basis, the proportion of the mortgage that the piece sold should bear would be one-third, or $666.66. The purchaser received credit for this amount and obtained title on paying $333.34. Now having obtained title, he permits the property to fall into a dilapidated condition. The owner of the remainder of the property keeps it up and improves it, so that it becomes more valuable. Some time after-wards suit is brought on the mortgage. The relative values at the time of bringing suit have changed. The piece sold is only worth $600; the remainder of the property is worth $6,000. If these values are taken, then the-piece sold should only bear one-eleventh of the mortgage, or $181.81, and thus the purchaser is relieved of $484.85, for which he received credit when he purchased, and this is thrown back on the remainder of the property. This would be unjust, and yet the foregoing is a fair statement of the facts in the case at bar?’

The liability for his share of the mortgage attached the moment the defendant secured title. If so, the time at which the parties should be held responsible for their respective shares or purparts of the mortgage was also fixed.

We are clearly of the opinion that, for the reasons stated, the court was correct in fixing the relative value of the two tracts at the time of the sale of the first, and these values being admitted there was no occasion for a submission of the case to the jury.

Judgment affirmed.


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    Commonwealth v. Burns, Appellant.

      Liquor laws — Sale without license — Malt liquor.

    A conviction for selling liquor without a license will be sustained where the evidence shows that the beverage which the defendant sold contained two per cent of alcohol, had the taste and smell of beer, and was in fact a malt liquor.
    Argued Nov. 19, 1908.
    Appeal, No. 192, Oct. T., 1908, by defendant, from judgment of Q. S. Chester Co., on verdict of guilty in case of Commonwealth v. Charles H. Burns.
    Before Rice, P. J:, Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for selling liquor without a • license. Before Butler, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was portion, of charge, quoted in the opinion of the Superior Court.

      Charles H. Pennypacker, and W. S. Harris, for appellant.
    The evidence tended to show, if it tended to show anything, that the beverage in question was a malt liquor. The commonwealth produced a few witnesses, who all testified that the liquor tasted a little like beer. All the commonwealth’s witnesses who had tasted the liquid, said it did not affect them, except one witness, who said: “It gave me a little of the feeling that alcohol does.” This is the only evidence in the case tending to show that the liquor or beverage was intoxicating. In the judgment of counsel, this was nothing more than a scintilla of evidence and did not entitle the commonwealth to submit the case to a jury upon the allegation that the defendant had sold spirituous, vinous or malt liquors: Allred v. State, 89 Ala. 112 (8 So. Repr. 56); United States v. Ducournau, 54 Fed. Repr. 138; Weisbrodt v. State, 50 Ohio, 192 (33 N. E. Repr. 603); State v. Starr, 67 Me. 242; Boyles’ License, 190 Pa. 577; Schwuchow v. Chicago, 68 Ill. 444; Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. Repr. 499).
    February 26, 1909:

      Wilmer M. MacElree, for appellee.
   Opinion by

Beaver, J.,

The indictment charged that the defendant “ on the 29th day of August, 1908, at county aforesaid and within the jurisdiction of this court, with force and arms, etc., did sell certain vinous, spirituous, malt and brewed liquors, and an admixture thereof, without having first obtained license, agreeably to law, for that purpose, contrary to the form of the act of assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.”

The Act of May 13, 1887, P. L. 108, “To restrain and regulate the sale of vinous and spirituous, malt, or brewed liquors, or any admixture thereof,” provides in its fifteenth section: “Any person who shall hereafter be convicted of selling or offering for sale any vinous, spirituous, malt or brewed liquors, or any admixture thereof, without a license, shall be sentenced to pay a fine of not less than five hundred dollars, nor more than five thousand dollars, and undergo an imprisonment in the county jail of not less than three months, nor more than twelve months.”

The defendant himself testified: “I sold the ‘rikk,’ as has been testified. It was represented to me as nonintoxicating. It did not appear to affect anyone. I poured some bottles of ‘ rikk ’ into a vessel and sent it by Solomon Hazzard to Prof. Cochran to be analyzed. I received from him a receipt for payment of the charge for making the analysis, on which was stated the percentage of alcohol found, a little over two per cent.”

In the appellant’s paper-book is printed what purports to be “testimony given by C. B. Cochran in case of Commonwealth v. Charles H. Burns.”

“A sample of liquid marked ‘rikk’ was delivered to me by R. 0. Jefferis on July 20, 1908. I made an analysis of the sample and found it contained:

“Alcohol by weight......3.12%.
Alcohol by volume......3.90%
Total solids........3.25%
Ash........0.10%
Maltose........0.62%
Phosphoric acid...... 0.032%
“The sample was a carbonated liquid and had the odor and taste of beer.”
“As a result of the analysis, I concluded that the sample was a malt liquor, made as indicated on the label, from malt, yeast, hops and water. Using the term vinous in its broad sense, the sample is a vinous liquid.”

The question of the defendant’s guilt was submitted to the jury.

The 'only allegation of error on the part of the appellant is that “The court erred in its general charge to the jury as follows: That on the defendant’s own showing, there was about two per cent of alcohol in the beverage in question. In the judgment of the court he [the defendant] was guilty as charged, if the liquor sold was either malt or vinous.”

There is nothing erroneous in thus submitting the real question at issue in the case to the jury. Whether the chemist used the term vinous in its broad or restricted sense is a matter of little consequence. There was no allegation, and absolutely no attempt to show, that the liquid was not a malt liquor. The label upon the bottles seemed to indicate it. The taste and smell were those of beer. Whether or not the defendant was put upon notice of the character of the drink which he sold is immaterial. It was a malt liquor. He sold it without a license and is, therefore, as the jury found, guilty under the indictment.

The sentence was a minimum one in accordance with the provisions of the Brooks law and should be sustained.

Judgment affirmed and record remitted to the court below, to the end that the sentence, as imposed, may be fully carried into effect.


text:
    Hall v. Haines, Appellant.

      Account render — Action—Judgment quod computet — Acts of April 4, 1831, P. L. 492, October 13, 1840, P. L. (1841) 1, and June 24, 1895, P. L. 243.
    1. A judgment quod computet in the ordinary common law action of account render is interlocutory only, and no appeal lies from it.
    2. The Act of June 24, 1895, P. L. 243, allowing an appeal from a decree of the common pleas requiring an account, is restricted to cases where the court has made the decree in the exercise of its chancery powers. .
    3. In an account render where the plaintiff proceeds under the Act of April 4, 1831, P. L. 492, a formal judgment quod computet is not necessary, inasmuch as the substance of such judgment is impliedly embraced in the general finding.
    4. The plaintiff in an account render is not compelled to proceed under the Act of April 4, 1831, P. L. 492, since under the Act of October 13, 1840, P. L. (1841) 1, when the liability of defendant to account is established, the court in its discretion, may either appoint auditors and proceed according to the practices and usages of the common law, or direct a jury to be impanelled to settle the accounts of the parties.
    Argued Dec. 7, 1908.
    Appeal, No. 210, Oct. T., 1907, by defendants, from judgment quod computet of C. P. Lehigh County, October T., 1905, No. 25, in case of Francis L. Hall v. Alvin S. Haines and J. Martin Koons, trading as the Provident Slate Company.
    February 26, 1909:
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Action of account render. Before Trexler, P. J., sitting .without jury.
    The opinion of the Superior Court states the case.

      Error assigned was the judgment of the court.

      Frank Jacobs, for appellants.

      Joseph J. Brown, with him Edward Harvey, for appellee.
   Per Curiam,

The Act of April 4, 1831, P. L. 492, provides that the jury, in an action of account render, shall have full power to settle the accounts between the parties, and find in favor of the plaintiff, or one or more of the defendants, such sum or sums as shall appear to be due. When this act is proceeded under, a formal judgment quod computet is not necessary; the substance of such judgment is impliedly embraced in the general finding: McLean's Executors v. Wade, 53 Pa. 146. It would seem, however, not to be compulsory to proceed under that act, for by the Act of October 13, 1840, P. L. (1841) 1, it is provided that after it shall have been found, or admitted by the pleadings, that the defendant is liable to account to the plaintiff, it shall be in the discretion of the court, to either appoint auditors and proceed according to the practices and usages of the common law, or direct a jury to be impaneled to settle the accounts of the parties, and find the balance due the plaintiff and defendant. In the present case the plaintiff did not proceed under the act of 1831, but prosecuted the case to judgment quod computet, according to the course of the common law, and from that judgment, nothing further having been done in the case, the defendants took this appeal. We do not question the regularity of the proceedings leading up to the judgment, but clearly it is not a final disposition of the matter in controversy: Newbold v. Sims, 2 S. & R. 317; Tutton v. Addams, 45 Pa. 67; 2 Brightly’s Troubat and Haly’s Practise, secs. 1696, 1700- In Beitler v. Zeigler, 1 P. & W. 135, the writ of error was quashed for the reason that a judgment quod computet is interlocutory, and we are not aware of any subsequent case in which that ruling has been questioned. It was distinctly recognized in Gesell’s Appeal, 84 Pa. 238. The Act of June 24, 1895, P. L. 243, allowing an appeal from a decree of the common pleas requiring an account, is restricted to cases where the court has made the decree in the exercise of its chancery powers, and therefore does not apply to the common law action of account render.

The appeal is quashed at the costs of the appellant and the record remitted with a procedendo.


text:
    Hagman, Appellant, v. Hagman.

      Divorce — Desertion—Evidence.
    A suit by a husband for divorce on the ground of desertion cannot prevail where the proof shows residence of the parties within the time required to give the court jurisdiction, that they then went to a foreign country, where they resided for a time, that the husband returned without his wife, but thereafter visited her several times, and finally returned without her, and there is no proof of the grounds for the final separation or any competent evidence that the wife had refused without reasonable cause to come with, or follow him to this country, or of any other fact which would be valid ground for the presumption of an intention on her part to desert willfully and maliciously persisted in for two years.
    Argued Dec. 15, 1908.
    Appeal, No. 183, Oct. T., 1908, by plaintiff, from decree of C. P. No. 5, Phila. .Co., June T., 1905, No. 167, dismissing libel for divorce in case of Edward Hagman v. Hannah Hagman.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Libel for divorce on the ground of desertion. Before Ralston, J.
    The facts appear by the opinion of the Superior Court.

      February 26, 1909:

      Error assigned was decree dismissing exceptions to report of Thomas Kelby Smith, Esq., master, and in dismissing the libel.

      Joseph Hill Brinton, for appellant,
    cited: Horn v. Horn, 17 Pa. Superior Ct. 486.
    No book for appellee.
   Per Curiam,

The allegations of the libel are, that the parties were married in Boston, Mass.; that they went from there to Sweden on a visit with a view to returning to America; that afterward the libelant returned to America, the libelee having acquiesced therein and agreed to follow him when he should have established a home in Philadelphia; that having established a home in that city, he immediately requested the libelee to join him there, and furnished her the means of transportation; and that she declined without reasonable cause to come to America, and has since willfully and maliciously persisted in her refusal to join him there! Personal service of the subpoena or of the rule to take depositions was not made on the libelee, and she did not appear and defend. The testimony of the libelant and the witnesses called by him is sufficient to establish the fact of marriage and of his residence in Philadelphia for the period of time requisite to give the court jurisdiction, and to warrant a finding that he is an industrious man of good character and behavior and of sufficient ability to support his wife. But his witnesses do not testify as to the circumstances under which the parties separated in Sweden. They do testify to having been shown letters by the libelant in which he requested her to come to this country, and a letter or letters purporting to be from her refusing to come. But there is no competent evidence of the mailing of his letters to her or of the authenticity of the letter or letters purporting to come from her, and the latter were not produced at the hearing. This testimony, as well as the testimony as to what the libelant said to these witnesses, is clearly incompetent. Disregarding the hearsay and otherwise incompetent testimony, there is none which would warrant a finding that she refused without reasonable cause to come with, or follow, him to this country, or of any other fact which would be valid ground for the presumption of an intention on her part to desert, willfully and maliciously persisted in for two years. There has been a separation for many years, it is true, but by the libelant’s own admissions in his libel it had its inception under circumstances which forbid the presumption of an intention on her part to desert at that time; it was therefore incumbent on him to show that something occurred later from which such intention may be inferred: King v. King, 36 Pa. Superior Ct. 33. The mere fact, unexplained by competent testimony, that she did not come to this country, is not sufficient.

We have thus far spoken of the case as it was presented when the court referred the case back to the master to ascertain whether the libelee ever lived in this country so as to give the court jurisdiction in the premises. On the second hearing the fact was developed, which seems quite inconsistent with the allegations of the libel, that at one time she lived with the libel-ant in Philadelphia and then returned to Sweden. But as on the first hearing the libelant volunteered the testimony that he had returned to Sweden several times, their final separation, which he says took place when they were living together in that country, must have occurred after their living together in Philadelphia. This being so, the fact developed on the second hearing before the master cannot change the result. Even with that fact in it. and assuming that they did not live together after she went from Philadelphia to Sweden, the case presented by the libelant is weaker than Bishop v. Bishop, 30 Pa. 412, and Horn v. Horn, 17 Pa. Superior Ct. 486.

The decree is affirmed at the costs of the appellant.


author: Beavek, J.,

text:
    Jennings’s Estate.

      Appeals — Orphans’ court — Order to pay — Paper-hooks—Failure to print will.

    1. Where an appeal from a decree of the orphans’ court raises a question involving the construction of a will, and the appellant fails to print the will in his paper-book, the appeal will be dismissed.
    2. No appeal lies from a mere order to pay made by the orphans’ court, in accordance with a previous decree of distribution made by the same court, from which no appeal was taken. The decree of distribution cannot be collaterally attacked on an appeal from an order to pay.
    Argued Dec. 17, 1908.
    Appeal, No. 42, Oct. T., 1908, by Hannah Jennings Rogers, from decree of O. C. Phila. Co., July T., 1885, No. 20, ordering executrix to pay in estate of Richard Jennings, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal dismissed.
    Petition for order to pay.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      W. Henry Sutton, with him Isaac C. Sutton, for appellant.
    The court erred in granting an order to pay over the estate of John Workman to the attorney for the distributees who had asked for a distribution of said estate upon the presumption of death instead of to a duly appointed administrator of said estate: Sherwood’s Estate, 26 Pa. C. C. Rep. 589; Wisler’s Est., 6 Montg. 159; Levy’s Est., 6 Phila. 122.
    An order or decree of the orphans’ court directing the payment of money is a final decree from which an appeal may be taken: Owen’s Appeal, 78 Pa. 511.

      Jerome J. Rothschild, with him Charles Edwin Fox, for appellees.
    It is respectfully submitted that the order of March 7 being merely in the nature of an execution, enforcing the previous decree of the court, is not such a final decree of court as may be appealed. The propriety of the order to pay depends solely upon the legality of the decree of court previously entered, and that previous decree is therefore the only subject-of appeal: Chew’s Appeal, 3 Grant, 294; State v. Judge, 30 La. Ann. 229; Murphy v. Murphy, 45 La. Ann. 1482.
    February 26, 1909:
   Opinion by

Beavek, J.,

The first step in the consideration of this case involves the construction of the will of Richard Jennings, deceased, the appellant claiming that a portion of said estate under the will vested in one John Workman, and that the court below should have decreed the interest belonging to him to be paid to an administrator instead of distributing it to the residuary estate of the said Richard Jennings. The will, under which this claim is made, is not printed, and we are unable, therefore, to determine what is the status of the amount directed by the court to be paid by the appellee, the executrix under the will and the trustee of the estate. The way to any further advance in the consideration of the case, therefore, is barred by the failure of the appellant to print the said will in her paper-book.

On November 23, 1907, the orphans’ court apparently considered a petition presented on behalf of the appellees, the prayer of which was granted, and it was “ordered, adjudged and decreed that the petitioner and the other distributees named in the said petition may file their own bonds, and as collateral security therefor assign to Hannah Jennings Rogers, trustee of the estate of Richard Jennings, deceased, their further interests in the estate of the said Richard Jennings, deceased, which bond and assignment shall be in the following form, to wit.” Then follows a complete designation of the character of bond and assignment to be presented to the trustee, forming part of the decree. Exceptions were taken to this decree and there is no appeal therefrom, nor is there a copy of the petition upon which the decree was granted printed in the appellant’s paper-book. Except, therefore, as we can gather the questions involved from the decree itself, we are unable to reach any definite conclusion.

On March 7, 1908, upon petition of the appellee, it was ordered: "That Hannah Jennings Rogers, surviving executrix and trustee of decedent’s estate, upon delivery to her of the bonds and assignments as therein set forth and on receipt signed by Jerome J. Rothschild as counsel for the distributees pay to Jerome J. Rothschild the sum of $1,370.38 within ten days after the personal service of this order upon her.” An answer to this order was filed by the executrix and trustee March. 11, 1908, and a motion for a rehearing refused March 14, 1908. From this order, an appeal to this court was taken and filed March 20, 1908.

The effect of the order to pay to the appellees the amount awarded to them by the decree of November 23,1907, would be to attack collaterally the order, to which there was no exception and from which there was no appeal. This we think cannot be done. In Chew's Appeal, 3 Grant, 294, which was a decree in equity in the court of common pleas, but which does not differ in principle from the present case, Mr. Chief Justice Lowrie said: “The order appealed from here is not properly the subject of an appeal, for it is not properly a final decree, but merely an order to pay the sums which had formerly been decreed against this appellant. It merely warrants him to perform his duty under the decrees entered on his former accounts. It was only the decrees, and not this order, that could be appealed from.”

It seems clear to us that the appeal from the order to pay cannot be construed into an appeal from the decree, in and by which the rights of the parties respectively were determined, nor can we by reason of this appeal inquire into the merits of the decree of distribution. It was one to which the appellant could have taken exception and from which she could have appealed. Having failed to do either, she is concluded, so far as the legal validity of that decree was concerned, and we cannot attack it collaterally in the appeal now before us.

For the reasons, therefore, that the appellant’s paper-book does not contain the will of Richard Jennings, essential to an understanding of the proceedings, under which, and the petition of the appellees for distribution, upon which, the decree of November 23, 1907, was made, and that no appeal lies from the mere order to pay, in accordance with a previous decree from which no appeal was taken, this appeal is dismissed.

Appeal dismissed at the costs of the appellant.


text:
    Wyatt v. Szymanski, Appellant.

      Appeals — Certiorari—Justice of the peace — Judgments—Quashing appeal.

    Where the court of common pleas in determining whether a justice of the peace has jurisdiction of a cause, considers depositions produced by the defendant, and upon these affirms the judgment, and a consideration of the record of the transcript of the justice shows that it is doubtful whether or not he had jurisdiction, the Superior Court on certiorari will quash appeal from the common pleas, inasmuch as the certiorari does not bring up the depositions, and the upper court has no means of determining whether the contract sued upon was or was not without the jurisdiction of the justice.
    Argued Dec. 9, 1908.
    Appeal, No. 49, Oct. T., 1908, by defendant, from order of C. P. Schuylkill Co., Sept. T.,-1907, No. 308, affirming judgment of justice of the peace in case of R. W. Wyatt v. Adam Szymanski.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Certiorari to judgment of justice of the peace.
    The opinion of the Superior Court states the case.

      Error assigned was in affirming the judgment of the justice of the peace.

      Guy E. Farquhar, with him Otto E. Farquhar, for appellant.
    In determining the jurisdiction of the justice of the peace, neither testimony taken for the purpose of being used on the argument of the certiorari, nor the recital of facts in the opinion filed by the lower court can be considered by the appellate court in determining the question of jurisdiction: Com. v. Smith, 200 Pa. 363; Com. v. Brownell, 35 Pa. Superior Ct. 249.
    The record of the justice shows that the whole transaction upon which the plaintiff’s claim was founded related to the sale of real estate and involved the validity of that sale concerning which the question of title might be and in fact, in this case, was vitally important: Sechrist v. Connellee, 3 P. & W. 388; Lauchner v. Rex, 20 Pa. 464; Campbell v. Gallagher, 2 Watts, 135; O’Neill v. McVickar, 21 W. N. C. 496; Doud v. Truby, 2 Grant, 37; Gruber v. Sheetz, 2 Woodward, 63; Fowler v. Eddy, 110 Pa. 117; Com. v. Barnett, 199 Pa. 161; Brashvalley Twp. Poor Directors v. Poor Directors, 25 Pa. Superior Ct. 595; Crumley v. Crescent Coal Co., 13 Pa. Superior Ct. 231; Phœnix Iron Works Co. v. Mullen, 25 Pa. Superior Ct. 547.

      R. P. Swank, for appellee.
    By the twenty-second section of the Act of March 20, 1810, 5 Sm. L. 161, the judgment of the court of common pleas upon certiorari to the judgment of a justice of the peace is final and no writ of error shall issue thereon: Cozens v. Dewees, 2 S. & R. 112; Borland v. Ealy, 43 Pa. 111; Castor v. Cloud, 2 W. N. C. 252; Penna. Pulp, etc., Co. v. Stoughton, 106 Pa. 458; Loop v. Haycock, 4 Kulp, 463; Diehm v. Parkes, 1 Mona. 174; Jacobs v. Ellis, 156 Pa. 253; Carroll v. Barnes & Erb Co., 11 Pa. Superior Ct. 590; Crumley v. Crescent Coal Co., 13 Pa. Superior Ct. 231; Minogue v. Ashland Borough, 27 Pa. Superior Ct. 506; Alexander v. Goldstein, 13 Pa. Superior Ct. 518; Spicer v. Rees, 5 Rawle, 119; Mahanoy Boro. v. Wadlinger, 142 Pa. 308; Colwyn Borough v. Tarbotton, 1 Pa. Superior Ct. 179.
    This provision is not repealed by the Act of July 7, 1879, sec. 1, P. L. 194, enlarging the juxisdiction of justices of the peace: Stewart v. Lindsay, 3 Penny. 85; Penna. Pulp & Paper Co. v. Stoughton, 106 Pa. 458; Palmer v. Lacock, 107 Pa. 346; Phœnix Iron Works Co. v. Mullen, 25 Pa. Superior Ct. 547.
    The Act of June 24, 1895, P. L. 212, creating the Superior Court and defining its jurisdiction, does not extend the appellate jurisdiction of the court so as to repeal this clause: Colwyn Borough v. Tarbotton, 1 Pa. Superior Ct. 179; Carroll v. Barnes 6 Erb Co., 11 Pa. Superior Ct. 590; Crumley v. Coal Co., 13 Pa. Superior Ct. 231.
    February 26, 1909:
    The judgment of the court of common pleas and of the justice of the peace will be affirmed: Carle v. White Haven Ice Co., 7 Kulp, 429; Cooke v. Shoemaker, 17 Pa. C. C. Rep. 641.
    Even under the act of 1810, it is not enough merely to allege a claim of title; it must appear that such a claim may be a defense: Heritage v. Wilfong, 58 Pa. 137; Camp v. Walker, 5 Watts, 482; Rhoades v. Patrick, 27 Pa. 323; Helfenstein v. Hurst, 15 Pa. 358; Murphy v. Thall, 17 Pa. Superior Ct. 500; Kuhn v. Eggers, 17 Pa. C. C. Rep. 155.
   Per Curiam,

The twenty-second section of the Act of March 20,1810, 5 Sm. L. 161, relating to writs of certiorari in cases originating before justices of the peace provides as follows: “And the judgment of the court of common pleas shall be final on all proceedings removed as aforesaid, by the said court, and no writ of error shall issue thereon.” It is claimed that this section does not apply to the present case, because the cause of action upon which the justice rendered judgment in the plaintiff’s favor was not within his jurisdiction; also that in determining whether the cause of action was within his jurisdiction we can look only at his transcript. This shows that the defendant was summoned to answer the plaintiff “in a plea of assumpsit arising from contract express or implied for a sum not exceeding $300,” and that on the hearing of the case the plaintiff claimed “the sum of $275 for breach of contract between plaintiff and defendant.” While this is an imperfect statement of a cause of action under the act of 1810, it does not show that the contract sued upon was one of which a justice of the peace could not take cognizance. But looking at the recital of the evidence given in support of the alleged cause of action, which is set forth in the transcript, it must be conceded that it is at least an arguable question whether the contract was not one excepted from the jurisdiction of justices of the peace by the clause in the first section of the act of 1810 which reads “except in cases of real contract, where the title to lands or tenements may come in question.” The defendant while excepting to the record of the justice upon this ground was evidently not content to rest his exception exclusively upon what the record showed, but proceeded to take depositions to be read upon the hearing of the exception. Ordinarily nothing can be considered by the court of common pleas upon certiorari to a justice of the peace but the record. There are, however, exceptions to this general rule, and one that has been very frequently recognized in practice is that want of jurisdiction of the cause of action may be shown by evidence outside the record. Therefore in the present case the court below had before it the record and the depositions which the defendant had taken; at least the defendant is not in position to deny the authority of the court to consider the depositions. But they did not become part of the record which was brought up on this appeal, and therefore the appellant was perfectly right in not printing them in his paper-book: Crumley v. Crescent Coal Co., 13 Pa. Superior Ct. 231. We have no knowledge of what they contain. It is not impossible that the very depositions which the defendant took showed that, notwithstanding the defective statement of the cause of action set forth in the transcript, it was not actually an action upon a real contract. It is apparent, therefore, that it is not necessary to decide the abstract question whether or not the judgment of the common pleas is final, and not reviewable on appeal, in a certiorari to a judgment of a justice of the peace upon a cause of action of which justices of the peace have no jurisdiction. As we are not in position, by reason of the fact that the depositions submitted to the court below are not before us, to declare that the contract sued upon was of the excepted class, we hold that the twenty-second section of the act of 1810 applies. See Crumley v. Crescent Coal Co., 13 Pa. Superior Ct. 231.

The appeal is quashed.