text:
    Allen, Appellant, v. Hirlinger.

      Wills — Life estate — Widow—Power of sale.

    Testator directed as follows: “All the balance, or whatever may remain then of my estate, real, personal and mixed, I give, devise and bequeath to my beloved wife whom I desire to be the real owner thereof, and for her only proper use, benefit and behoof, during her natural life, or so long as she remains my widow, with full permission to her to use and live therefrom as her necessities may require, and she to have the full ownership thereof, the same as I now have, and have had during my natural life. When my beloved wife dies, my will is, whatever may then remain of my estate, real, personal or mixed, I desire that the said remaining portion, if any, be given to my beloved daughter, for her individual use, benefit and behoof, granting to her full power to keep, have and to hold or dispose of the same at her individual pleasure.” The estate consisted of real and personal property. Held, (1) that the widow had a right to use the personal property and enjoy the real estate; (2) that she had a life estate and not a fee in the real estate; and (3) that she had no power to‘sell the real estate.
    Argued Nov. 16, 1906.
    Appeal, No. 205, Oct. T., 1905, by plaintiff, from judgment of C. P. Lancaster Co., April T., 1906, No. 9, for plaintiff on case stated in suit of Leonora Allen v. J. W. Hirlinger.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladv, Head and Beater, JJ.
    Affirmed.
    Case stated to determine the marketable title to real estate.
    Before Landis, P. J.
    ‘ The facts are stated in the opinion of the Superior Court.
    The court in an opinion by Landis, P. J., entered judgment for defendant.

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

      Wm. R. Brinton, for appellant.
    — Plaintiff has a life estate in the realty with power to use the same as her necessities may require, and consequently with power to sell the real' estate, and convey a fee simple title to the purchaser: Redding v. Rice, 171 Pa. 301; Lininger’s App., 110 Pa. 398 ; Rominger’s Estate, 43 Pitts L. J. 206; Cashman’s Est., 134 Ill. 88 (24 N. E. Repr. 963) ; Clark v. Middlesworth, 82 Ind. 240.
    February 25, 1907:
    The widow took an absolute estate in fee simple: Kinter v. Jenks, 43 Pa. 445; Dalrymple v. Leach, 192 Ill. 51 (61 N. E. Repr. 443) ; Nesbit v. Clarke, 1 Penny. 483 ; Huber v. Hamilton, 211 Pa. 289; Boyle v. Boyle, 152 Pa. 108; Hardaker’s Est., 204 Pa. 181; Waston v. Smith, 210 Pa. 190; Murray v. Lowrie, 208 Pa. 1; Good v. Fichthorn, 144 Pa. 287.

      William S. Furst and O. E. Montgomery, with them J. W. Denlinger, for appellees.
    — It is respectfully submitted that under the terms of the will and the decisions of our courts, the appellant has no authority to convey an estate in fee simple under the terms of her husband’s will, and that she has a mere life interest in the real estate : Evans v. Smith, 166 Pa. 625 ; Tyson’s Estate, 191 Pa. 218; Cooper v. Pogue, 92 Pa. 254; Fox’s App., 99 Pa. 382; Oyster v. Oyster, 100 Pa. 538; Follweiler’s App., 102 Pa. 581; Cox v. Sims, 125 Pa. 522 ; Long v. Paul, 127 Pa. 456 ; Oyster v. Knull, 137 Pa. 448 ; Gross v. Strominger, 178 Pa. 64; Zimmerman’s Est., 23 Pa. Superior Ct. 130; Martin v. Heckman, 25 Pa. Superior Ct. 451.
   Opinion by

Henderson, J.,

It is evident from the language of the third and fourth clauses of the will under consideration that the testator intended to make both his wife and daughter objects of his benevolence. In so doing he first made provision for his wife in language appropriate to create a life estate in the real estate of which he died seized. The words of the will are, “ All the balance, or whatever may remain then of my estate, real, personal and mixed, I give, devise and bequeath to my beloved wife Leonora whom I desire to be the real owner thereof, and for her only proper use, benefit and behoof during her natural life, or so long as she remains my widow, with full permission to her to use and live therefrom as her necessities may require, and she to have the full ownership thereof, the same as I now have, and have had during my natural life.” The fourth clause contains the following directions : “ When my beloved wife dies, my will is whatever may then remain of my estate, real, personal or mixed I desire that the said remaining portion, if any,- be given to'my beloved daughter, Mary, wife of J. W. Denlinger, for her individual use,- benefit and behoof, granting to her full power to keep, have and to hold or dispose of the same at her individuad pleasure.” That the testator had in his mind the thought that the estate which he was giving his wife would be terminated by her death or remarriage is manifest, for the language of the third clause so states. The only doubt' upon that question arises from the use of the words “ the real owner ” and “ she to have the full ownership thereof the same as I now have and have had during my natural life ” in connection with the devise. It will be observed that the expression of desire that the wife be the real owner of the property bequeathed and devised precedes the declaration that it was to be for her usé, benefit and behoof during her natural life or so long as she remained the testator’s widow. The words were not used to enlarge the estate which the language of the will limits to the devisee’slife or widowhood, but to indicate the absolute enjoyihent which the testator intended she should have therein while -the estate lasted. The reference to full ownership in the latter part of the clause is but a restatement in other words of the idea expressed in the term “ the real owner ” above quoted. The purpose apparently was to give the wife exclusive and uncontrolled use of the property until her title thereto was terminated by death or marriage. We cannot assume that the-testator intended to make inconsistent and contradictory provisions in regard to the estate which he gave to his wife, and the will should be so interpreted as to give effect to all of its parts unless they are so incompatible that they cannot stand together. In the disposition made by the testator his entire estate is blended. The bequest of the use and right to live from the estate implies the right to consumé and dispose of that .which was personal; and as to that, she had the ownership to which the testator refers. There is, however, no express authority to sell the real estate and such power is not so plainly inferable from the language of the will that the express limitation for life must be ignored. Construed as a whole the meaning is that the widow shall have a full and unconditioned enjoyment of the estate during her life subject to be determined sooner, by her marriage. This view is supported by the provision for the testator’s daughter, to whom he gives “ whatever may then remain of my estate.” To her he gives the right of disposal which, as we have seen, was withheld in the ease of his widow. The testator had, as we conclude from the language of his will, an understanding of the difference between an estate for life or widowhood and an absolute estate, and also the effect of the power of disposal; and his will should be interpreted so as to give force to the words which he used intelligently if not perspicuously. A construction which would give to the appellant an estate in fee would defeat one of the testator’s objects which was to make some provision for his daughter after the death or marriage of the widow. Cooper v. Pogue, 92 Pa. 254, is a case closely resembling this, in which it was held that the widow took a life estate in the realty and an absolute estate in the personal property. . To the same effect is Gross v. Strominger, 178 Pa. 64. In the latter case the will contained a power of sale and the question arose on a claim to the remainder of the proceeds, but an interpretation of the will was involved in the action. In Martin v. Heckman, 25 Pa. Superior Ct. 451, a devise “ to my wife the whole of my estate, both real and mixed; after her death, the same, or whatever remains thereof, to be equally divided amongst my children, or their legal heirs, share and share alike ” was held to vest a life estate in the widow. The appellant argues that the provision as to the testator’s daughter is merely precatory and that there is no disposal of a residuary estate, but the language is not susceptible of this construction. The words with reference to the disposal of the testator’s estate after the death of his wife are “ my will is ” and there is not only the appropriate language of a bequest but a power of disposal. Taking into consideration all of the terms of the fourth clause it gives to the testator’s daughter all of his estate not given to his widow in the third clause. Our attention has been called by the appellant’s counsel to Huber v. Hamilton, 211 Pa. 289; Boyle v. Boyle, 152 Pa. 108; Hardaker’s Estate, 204 Pa. 181, as authorities supporting the appellant. They are all distinguishable, however. In the first of these there was an absolute gift to the wife; in all of them there was a power of disposal and in the last two there was no bequest of a remainder.

If, then, the wife took a life estate under the will the case was rightly decided unless there is an implied power to sell. Such a power is contended for by the appellant and must be inferred if it exist from the use of the words “ whatever may then remain of my estate ” in the bequest to his daughter. As the bequests both to the widow and daughter included real and personal estate the provision of the will which authorizes the widow to use the estate has reference to the personal property and the enjoyment of the real estate. Authority to convey the real estate cannot be inferred merely from the use of language applicable to a different subject: Follweiler’s Appeal, 102 Pa. 581; Cox v. Sims, 125 Pa. 522. An implied power of sale should be clearly indicated. We do not find it in the will presented for our consideration.

The judgment is, therefore, affirmed.


source: Caselaw Access Project

author: Hendekson, J.,

license: Public Domain

text:
    Todd’s Estate.

      Wills — Construction—Vested and contingent gifts — Gift to a class.

    The rule is general that a bequest to a number of persons not named .but answering a general description is a gift to them as a class; and the principle of interpretation in such a case is that only those members of the class participate in the estate who are living when the gift vests.
    Testator having made specific devises to four nephews and nieces naming them, children of T., concluded his will as follows: “I will and bequeath that the balance of my property and estate remaining after the aforesaid devises and bequests are paid and satisfied, shall be divided, equally between the children of my brother C. and J. and the children of my sister J., giving to each of said nephews and nieces (not hereinbefore mentioned in this will) share and share alike, in case of the death of any of said nephews and nieces without issue his or her share to be equally divided among the survivors.” A son of the sister died in the lifetime of the testator, and before the date of his will, leaving to survive him one child, who also survived the testator. Held, that such child did not take under the residuary clause of the will.
    The Act of July 12, 1897, P. L. 256, provided that where one is a member of a class named by the testator as objects of his benevolence, the legacy or devise shall not become void because of his death in the lifetime of the testator, but shall be good in favor of surviving issue of the dead legatee. The act does not apply, however, unless such .cleceasédlegatee was a member of a class at some time between the execution of the will and the death of the testator.
    Prior to the act of. July 12, 1897, the legal presumption was that where a member of a class died during the lifetime of the testator it was not the intention of the latter that the issue of the person so dying should take under the will. Under the 'act the presumption is that the testator intended that if a person actually within the class died leaving issue, such issue should take by substitution. The statute 'does not establish a new rule for the interpretation of wills nor designate . as primary legatees persons not described as legatees by the testator, but entitles the issue of one who was within the class when the will was executed or afterwards, and died before the testator, to take by substitution.
    Argued Nov. 22, 1906.
    Appeal, No. 213, Oct. T., 1906, by Preston Ayres, from decree of O. C. Chester Co., No. 6,825, dismissing exceptions to auditor’s report in Estate of Roland Todd, deceased.
    Before Ríes, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Exceptions to report of J. Frank Hause, Est., auditor.
    The material portion of the will of Roland Todd was as follows:
    “ 3. I give and devise to my nephew Roland Todd, son of my brother John Todd, (deceased), for and during his natural life, my farm of eighty acres in Lincoln township, Wright county, Iowa, viz.: N. N. E. J section ten (10) T. 91, N. R. 24, west of 5th P. M. At the death of said Roland Todd said-landto descend and go to the children of said Roland Todd then living, share and share alike, in fee simple.
    “ 4. I give and devise to my nephew Robert Todd son of John Todd the forty acres of land lying south of the railroad in Lincoln township, Wright county, Iowa, being part of W. ■£, S. E. 4, sec. 3-91-24.
    “ 5. I give and devise to my nephew Harry Todd, son of John Todd, the forty acres (less right of way of Rjr.) lying north of railroad in Lincoln township, Wright county, Iowa, being part of W. S. E. {-, sec. 3-91-24.
    “ 6. I give and devise to my niece Anna Todd, daughter of John Todd, my house and two lots in the town of Clarion, Wright county, Iowa, known as
    “7.1 give and devise to my beloved brother Robert Todd* my house and lot No. , Star street (lot 33, blk. 4, Martin & Burns’ add.), also my house No. 315 Appel street (on leased ground) both in the city of Peoria, county of Peoria, state of Illinois.
    “ Further, I give and bequeath to my said brother, Robert Todd, the sum of $1,000.
    “8. I give and bequeath to my step brother Porter Todd, the sum of $500, and to my step brother Albert Todd, the sum pf .($10.00).
    “ 9. I give and bequeath to my sister Ellen Hieston the sum of $3,000. All said bequests to be liens on my real estate until paid.
    “ 10. I will and bequeath that the balance of my property and estate remaining after the aforesaid devises and bequests are paid and satisfied, shall be divided equally between the children of my brothers Charles Todd and James Todd and the children of my sister Jane Ayres, giving to each of said nephews and nieces (not hereinbefore mentioned in this will) share and share alike, in case of the death of any of said nephews and nieces without issue his or her share to be equally divided among the survivors.”
    Jane Ayres had foul children, Elizabeth T. Schofield, Annie E. Auehenbaeb, Ellen King and Robert Ayres, the latter of whom died before testator made his will, leaving to survive .him a son, Preston Ayres, who now seeks to recover the portion of this estate which would have passed to his father, .Robert Ayres, had he survived the testator.
    The auditor disallowed the claim of Preston Ayres.
    The court dismissed the exceptions to auditor’s report.

      Error assigned was in dismissing exceptions to auditor’s report.

      James G. Sellers, for appellant.
    — The manifest intention of Roland Todd, the testator, was that the issue of deceased children of his brothers and sister should take under the residuary clause of his will: Denlinger’s Estate, 170 Pa. 104; Benham’s App., 12 Lanc. Law Rev. 345; Long v. Labor, 8 Pa. 229.
    Under the Acts of May 6, 1844, P. L. 564, and July 12, 1897, P. L. 256, appellant is entitled to share in the distribution of the residue: Minter’s App., 40 Pa. 111; Moses’ Estate, 3 Pa. Superior Ct. 93; Harrison’s Est., 18 Pa. Superior Ct. 588; Cooper’s Estate, 13 Pa. Dist. Rep. 127; Scott’s Est., 163 Pa. 165; Reynold’s Est., 11 Pa. Dist. Rep. 387.
    February 25, 1907:

      C. Wesley Talbot, with him William M. Hayes, for appellees.
    —The bequest in this case is to the nephews and nieces as a class, inasmuch as it is a bequest to a number of persons not named, but answering a general description. What persons constitute the class is to be ascertained when the time comes at which the gift takes effect: Hunt’s Estate, 133 Pa. 260; Gross’s Estate, 10 Pa. 360; Moses’ Est., 3 Pa. Superior Ct. 93.
   Opinion by

Hendekson, J.,

The rule is general that a bequest to a number of persons not named but answering a general description is a gift to them as a class: Gross’ Estate, 10 Pa. 360; Hunt’s Estate, 133 Pa. 260; and the principle of interpretation in such a case is that only those members of the class participate in the estate who are living when the gift vests: Pemberton v. Parke, 5 Binney, 601; Gross’ Estate, 10 Pa. 360. The question for our consideration is whether there is anything in the language of the will which exempts this case from the operation of the rule. The gift is to be “ divided between the children of my brothers, Charles Todd and James Todd and the children of my sister Jane Ayres, giving to each of said nephews and nieces (not hereinbefore mentioned in this will) share and share alike, in case of the death of any of said nephews and nieces without issue his or her share is to be equally divided among the survivors.” In the third, fourth, fifth and sixth paragraphs of the will the testator devised to three nephews and a niece respectively the real estate in the several paragraphs described. In the seventh, eighth and ninth paragraphs he made gifts to two brothers and a sister. The tenth paragraph is that out of which the present controversy arises. Taking all the provisions of the will into consideration the testator apparently used the word “ children ” in that paragraph in its literal and common acceptation. The devisees referred to in the third, fourth, fifth and sixth paragraphs were children of a brother of the testator and, therefore, nephews and a niece. They are the persons excepted from the operation of the tenth paragraph by the parenthetic clause, and the words “ nephews and nieces ” in the paragraph referred to not only describe the relationship existing to the children of his brothers and sisters, but the sense in which the words are used is further indicated by that clause. He also had in mind the contingency that the nephews and nieces referred to might have children or that they might die without issue. None of the provisions of the will give any indication that the testator intended to include in the description “ chil- • dren'” persons having a more remote relationship to his brothers and sisters than children. Such intention must clearly appear, and if it does not the word “ children ” is confined to its ordinary meaning: Hunt’s Estate, 133 Pa. 260, 271. At the time the testator made his will Robert Ayres, the father of the appellant, was dead. Jane Ayres, the sister of the testator, had then three children living, all of whom survived the testator. Robert Ayres was not a person in existence and capable of receiving a legacy when the testator died or when he made his will. There were legatees living to whom the description in the will applied and there is no reason for extending the meaning of the word “children” beyond that which it usually has. If was held in Gross’ Estate, that in the case of a bequest to the children of the brothers and sisters of the testator and his wife there was a gift to a class and that, therefore, only those living at the time of the testator’s death could take. This rule was recognized in Ashburner’s Appeal, 159 Pa. 545 ; and in Bradley’s Appeal, 166 Pa. 300. Where the term “ children ” is used and there are children who may take, grandchildren do not take unless the intention to produce that result is apparent in the language of the testator: Hallowell v. Phipps, 2 Whart. 376; Hunt’s Estate, 133 Pa. 260; Moses’ Estate, 3 Pa. Superior Ct. 93. In the latter case the bequest was to the children of the testator’s brothers and sisters, share and share alike to them severally and their heirs and assigns forever. It was held that children living at the death of the testator took to the exclusion of the representatives of children dying before the testator but after the date of his will and that on the ground that no legacy vested. The same conclusion was reached after a full discussion of the subject by Judge Porter in Harrison’s Estate, 18 Pa. Superior Ct. 588. The appellant contends that the provision of the clause under consideration that in case of the death of any of the said nephews and nieces without issue his .or her share is to be equally divided between the survivors, shows his intention to give to grand nephews and nieces and that Deniinger’s Estate, 170 Pa. 104, controls the interpretation •in favor of the appellant. Deniinger’s Estate was decided, however, on the ground that the devise was to all the children of the testator’s brother and that there was a substitutionary provision in favor of the issue of the primary legatees in case of the death of any one of such legatees. This language was-held to show an intention on the part of the testator to substitute the child of the legatee in the event of the latter’s death. The distinction between the Denlinger will and the Todd will is that in the latter there is no substitutionary provision. The legacy by its terms was applicable to persons living and there are no words which justify the introduction of the issue of •nephews and nieces not living at the time the testator made his will. ’ It is undoubtedly true, as was held in Minter’s Appeal, 40 Pa. Ill, that a testator may make a disposition of his estate which will entitle the children of a deceased brother or sister to take the share bequeathed to such deceased brother or sister where the bequest is to individuals named. The act of May 6, 1844, saves such a legacy to the issue of the deceased legatee. The bequest was to the legatee by name, which fact distinguishes the case from the cases in which the gifts are to a class. This decision rested entirely, however, upon the statute, and the statute, as was shown in Gross’ Estate, 10 Pa. 360, does not apply to the legacies to individuals composing a class. Nor does the Act of July 12,1897, P. L. 256, aid the appellant. That act provides that where one is a member of a class named by the testator as objects of his benevolence the legacy or devise shall not become void because of his death in the lifetime of the testator, but shall be good in favor of surviving issue of the dead legatee. The act does not apply, however, unless such deceased legatee was a member of the class at some time between the execution of the will and the death of the testator: Harrison’s Estate, 18 Pa. Superior Ct. 588. Prior to the act of 1897 the legal presumption was that where a member of á class died during the lifetime of the testator it was not the intention of the latter that the issue of the person so dying should take under the will. Under the act the presumption is that the testator intended that if a person actually within the class died leaving issue, such issue should take by substitution. The statute does not establish a new rule for the interpretation of wills nor designate as primary legatees persons not described as legatees by the testator, but entitles the issue of one who was within the class when the will was executed or afterwards, and died before the testator, to take by substitution. Robert Ayres is not named or described as a legatee in the will, nor was he a member of the class to which the legacies were given at any time between the execution of the will and the death of the testator. The conditions were, therefore, lacking on which the act could operate in favor of the appellant.

The decree is affirmed.


author: Henderson, J.,

text:
    Bishop v. Buckley, Appellant.

      Waters — License—License to lay pipe — Equity—Estoppel.
    Where an owner of a spring grants to another a license to use the waters of the spring for the term of ten years, and the licensee secures the privilege from the owner of intervening land to lay pipes through such land from the spring to the licensee’s house, and it is understood between the parties that this privilege is to last only as long as the water' license lasts, and it appears that the pipe costs only about $30.00, the licensee .cannot claim that the privilege to maintain the pipes extended beyond the term of the license to take water from the spring.
    When not specially restricted a license is co-ordinate with that to which it is. ancillary.
    In such a case where the successor in title to the licensee renews the license to use the spring after his acquisition of title, he cannot claim that the owner of the land in which the pipes were laid is estopped from asserting his right to have the pipes removed, unless he shows that .he was induced to purchase the property by acts or statements of the intervening owner relating to the continuance of the pipes.
    Where facts are open to inquiry, and the'parties have equal opportunity to ascertain the truth with reference thereto, the omission to speak is not held to amount to fraud.
    • " Where one seeks to impose upon the land of another a perpetual '.burden by parol, the evidence should be of a clear and convincing 'character:

      February 25, 1907:

      Equity — ■Pleading—Proof.
    The defendant in an equity suit is not called upon to meet an allegartion of facts, not set forth in the complainant’s bill out of which an estoppel is claimed, and which he is not required to meet in his answer.
    A party is not permitted to state one case in a bill and present a different one in his evidence.
    Argued Nov. 23, 1906.
    Appeal, No. 217, Oct. T., 1906, by defendant, from decree of C. P. Del. Co., June T., 1905, No. 132, on bill in equity in case of Jehu D. Bishop and Nellie L. Bishop, his wife, v. J. Monroe Buckley.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Bill in equity to restrain the defendant from disconnecting and interfering with a water pipe. Before Johnson, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the decree awarding the injunction.

      A. J. Williams, with him O. E. Dickinson and J. Q. Taylor, for appellant.

      W. Roger Eronefield, for appellee.
   Opinion by

Henderson, J.,

It is made very clear by the evidence offered at the trial that the water privilege which was the inducement to the laying of the pipe across the land now owned by the defendant, was limited to the period of ten years. The contract under which the water was obtained from Mrs. Pyle expressly terminates the privilege on June 17, 1899. This right was given to Lewis E. Buckley, predecessor in title of the plaintiffs, and Isabella Buckley, predecessor in title of the defendant. It further appears from the evidence that the pipe was laid and the houses of L. E. Buckley and Isabella Buckley were equipped for the use of water under this limited right. The parties well knew that the privilege for the use of water did not extend beyond the date fixed in tlieir contract, and it must be presumed in the absence of evidence to any other effect that they were willing to incur the expense of piping the water from the spring to their respective dwelling houses, because of the opportunity to use the water for the time fixed in the agreement. So far as appears in the case they had no reason to believe that Mrs. Pyle would extend the term, or that the pipe would be useful to them as a water conduit, after their right to use the spring had terminated. The distance was only seventy-seven rods, and the cost a little more than f30.00. The parties might well have concluded that the outlay was small in comparison with the advantages to be derived from the use of the water during the term. It is alleged in the answer, and testified to by the defendant at the trial, that the license to Lewis E. Buckley to lay the water pipe in the land of Isabella Buckley was only to continue until June 17, 1899, the time when the water right granted by Mrs. Pyle ceased, and the defendant’s evidence upon this point is in no way contradicted. The occasion for the use of the pipe was to cease by the termination of the water right at the date when the license to have the pipe on the defendant’s land ended. There is no evidence that Lewis E. B ucldey erected his house or equipped it for water upon the strength of any other arrangement or right than that secured under the contract with Mrs. Pyle for the use of the water for ten years, and the right from his mother to use the pipe on her land while the contract with Mrs. Pyle subsisted. We have not, then, the case of a license indefinite as to time, upon the faith of which valuable improvements were made or work or money expended, by reason whereof an irrevocable interest in land is acquired under the doctrine of estoppel: LeFevre v. LeFevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267, and McKellip v. McIlhenny, 4 Watts, 317, are illustrations of this principle. In the latter case it was said that wherever a party has induced another upon the faith of his promise, though verbal, to expend his money or labor for which he can only be remunerated by the enjoyment of the thing so promised, equity will enforce the agreement. In all of the cases of this class, however, the license was unlimited or for a specific object, the duration of which was indefinite. When not specially restricted a license is co-ordinate with that to which it is ancillary. It was accordingly held in Rerick v. Kern, supra, that a parol license to use the water of a stream for a sawmill, in consequence of which the grantee incurred the expense of building the mill, became irrevocable ; but where the privilege is for a limited time, or until the occurrence of a particular event, the reason for the rule is not applicable. The licensee acts with his eyes open to the fact that his right is restricted and his outlay is presumed to have been made with reference thereto. In such a case an unlimited enjoyment of the privilege was not in the grantee’s view, and no equity arose in his favor because of his outlay. ' Parties contracting have a right to fix their own terms in granting a license, as in other agreements, and it is not within the power of a chancellor to make another contract for them than that1 to which they assented. We do not find any warrant in the evidence, nor authority in the law applicable thereto, for the conclusion that the license to Lewis E. Buckley to maintain a water pipe on the land of his mother was unlimited or irrevocable. The contrary appears in evidence which was not impeached nor contradicted. To hold otherwise would be to impose on the land of the defendant a servitude not in contemplation of the parties, and against which they had specifically contracted.

It is contended, however, that the bill may be maintained upon the doctrine of estoppel. This estoppel is supposed to grow out of the fact that the defendant knew that the plaintiffs were purchasing the property; that he spoke to the plaintiffs after they had purchased in regard to the water supply and showed them where the water was shut off in the house; that the plaintiffs then entered into a new contract with Mrs. Pyle for the use of the water for ten years; that some time after this the defendant and Mr. Bishop put a spigot in the pipe at the run and at another time cleaned out the spring. It will be observed that none of the acts referred to are alleged to have been an inducement to the plaintiffs to buy the property. They neither relied upon the defendant nor consulted him with reference to it or to any rights appurtenant. The cleaning of the spring and the adjustment of the pipe with the spigot occurred long after the purchase and long after the lease entered into by the plaintiffs with Mrs. Pyle, and were in no sense an inducement to the plaintiffs to enter into that contract. There was no suppression of a material fact nor was the defendant present at any time when a duty was imposed upon him to speak. The plaintiffs.presumably knew that the water supply was derived from some source outside of their own property, and the defendant is not shown to have been present when they acquired the water right from Mrs. Pyle soon after they purchased. In order to make his silence work an estoppel it must be shown to have been so suggestive in its nature that, coupled with his own knowledge, it became a fraud on his part not to have disclosed this knowledge to the plaintiffs. The doctrine of estoppel from silence grew out of the omission of one to speak with reference to facts which the party complaining could only acquire knowledge of through the person who neglected to communicate it. Where one so situated withheld knowledge, the courts.declared such silence to be fraudulent. But where the facts are open to inquiry and the parties have equal opportunity to ascertain the truth with reference thereto, the omission to speak is not held to amount tó fraud. The plaintiffs did not make any inquiry as to the water supply when the property was purchased, and the case lacks evidence of acts of the defendant misleading the plaintiffs to the expenditure of money or to the making of valuable improvements to their prejudice. Where one seeks to impose upon the land of another a perpetual burden by parol the evidence should be of a clear and convincing character. It does not appear that the water privilege may not be enjoyed by locating the pipe on other land, nor is there any evidence of valuable improvements made by the plaintiffs on the strength of the supposed privilege. There is the further objection to this branch of the plaintiffs’ case that it is not pleaded or suggested in their bill. Their complaint sets out in the third paragraph a right indefinite as to time growing out of the joint construction of the line of pipe by their predecessors in. title for the purpose of supplying water to their buildings; that the plaintiffs knew of the easement upon the defendant’s •land when they bought the property and that the defendant disconnected the pipe. This sets forth a right growing out of the contract between Lewis E. Buckley and his mother, but gives no intimation that a cause of action was to be relied on because of the conduct of the defendant after the purchase by the plaintiffs. Technical rules of construction of pleadings in equity are not to be encouraged, but the rule has not been departed from that all material allegations should be put in issue so that the parties may be informed what the real ii> quiry is. A party is not permitted to state one case in a bill and present a different one in his evidence: Boone v. Chiles, 35 U. S. 177; McElwain v. Yardley, 9 Wend. 549 ; 1 Daniell’s Chan. Pl. & Pr. 326. Material facts must be so distinctly stated as to be put in issue: Finletter v. Appleton, 195 Pa. 349; Harding v. Handy, 24 U. S. 103. The court is not authorized to give consideration to matters not alleged by the party: Harrison v. Nixon, 34 U. S. 483. It is a maxim both in chancery and law courts that proofs cannot be admitted of any matter not noticed in the pleadings : 1 Daniell’s Chan. Pl. &. Pr. 852. The facts constituting an estoppel must be pleaded: Independent Dist. of Burlington v. Bank, 68 Iowa, 343 (27 N. W. Repr. 255); Thompson’s Appeal, 126 Pa. 367. The defendant was not called upon to meet an allegation of facts not set forth in the complainant’s bill out of which an estoppel was claimed and which he was not required to meet in his answer. After a careful review of the evidence we are of the opinion that neither on the theory of an irrevocable license or estoppel can the complainant’s bill be sustained.

The decree is, therefore, reversed and the bill dismissed at the cost of the appellees.


author: Porter, J.,

text:
    Mack, Appellant, v. Schuylkill Trust Company.

      Appeals — Certiorari—Statutory proceedings — Act of April 1, 1863, P. L. 188 — Recording of deeds.

    A proceeding under the Act of April 1, 1863, P. L. 188, to compel the recording of a deed, may be reviewed as upon certiorari to determine whether the court below has kept within the limits of the powers conferred by the statute, and has exercised them in conformity with law.

      Conveyancers — Lien upon papers — Deed—Title insurance company.

    The primary employment of a title insurance company to act as conveyancer and insure the title to land, does not clothe the company with authority to accept a delivery of the deed, or take possession of it after it has been executed by the grantor.
    Where a title insurance company, after having performed its duties as a conveyancer and title insurer, as such, further assumes the duty specifically intrusted to it of accepting a deed, and delivering the consideration therefor, and placing the deed on record, it cannot retain possession of the deed and refuse to place it upon record until its bill as a conveyancer and title insurer has been paid.
    February 25, 1907:
    Argued Dec. 4, 1906.
    Appeal, No. 93, Óct. T., 1906, by plaintiff, from order of C. P. Schuylkill Co., March T., 1906, No. 280, discharging rule to compel the payment of a deed in case of Joseph P. Mack v. Schuylkill Trust Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Oelady, Head and Beaver, JJ.
    Reversed.
    Rule to compel the recording of a deed. Before Shay, J.
    The facts are stated in the opinion of the Superior Court.

      Frror assigned was the order of the court discharging the rule.

      JE. O. Michener, with him M. P. MeLoughlin, for appellant.
    —The act of assembly affords the only relief at present which the owner of property has in order to get his deed recorded when it is in the possession of a third party, either properly or improperly: Ayers v. Ayers, 8 Pa. Dist. Rep. 734.

      Norman S. Farquhar, for appellee.
    — No appeal lies in the case: Todd v. Patterson, 17 S. & R. 345; Com. v. Davis, 109 Pa. 128; White v. Leeds, 51 Pa. 187.
    Appellee had a lien on the deed: Spring Garden v. Blight, 1 Phila. 553; Story on Agency, sec. 373; Dubois’s App., 38 Pa. 231; McKelvy’s App., 108 Pa. 615; Balsbaugh v. Frazer, 19 Pa. 95.
   Opinion by

Porter, J.,

The appellant presented his petition to the court below, under the provisions of the Act of April 1, 1863, P. L. 188, entitled, “ An act authorizing the courts of common pleas to compel the recording of deeds and other instruments of writing ; ” averring that he was the present owner of certain lands, in Schuylkill county, and the grantee in a certain deed conveying the said lands, which deed was by the petition fully identified; that the said deed was and had since its execution and delivery been in the custody and possession of the appellee and had not been placed on the record in said county, although petitioner had frequently requested the respondent to do so and tendered the full costs and charges attendant upon such recording ; and that more than six months prior to the presentation of this petition the petitioner had served a written notice upon the respondent to have the said deed placed on record or deliver the same to the petitioner. The court granted a rule on the Schuylkill Trust Company, the respondent, to show cause why the deed should not be delivered up to the petitioner, or properly recorded according to law, in accordance with the provisions of the statute.

The respondent filed an answer, attached to and made part of which were copies of the entire correspondence between the parties relating to the transactions which resulted in the deed in question passing into the hands of the respondent. The facts alleged in the answer which are material to the question presented may be thus briefly stated; the appellant having entered into an agreement to purchase the lands in question, applied, through E. O. Michener, Esq., his attorney in Philadelphia, to the Schuylkill Trust Company for a policy of insurance on the title which he was about to acquire, and directed the trust company to prepare and send to the prospective grantors such deed as was necessary to pass the title to the purchaser. The trust company made the necessary examination of the record and prepared the deed in question and sent it to the attorney of the prospective grantors, for execution. The deed having been executed by the grantors, the parties fixed upon May 22, 1905, for the settlement of the transaction and delivery of the deed, and upon that day the appellant went from Philadelphia to the office of the attorneys for the grantors in Pottsville, the attorney of the trust company being present to advise the appellant; owing to the refusal of the grantors to carry out their contract the conveyance was not then consummated, but was postponed. After some correspondence between Mr. Michener and the attorney for the grantors the dispute was adjusted and, on May 29, 1905, Mr. Michener, for the appellant, wrote a letter to the trust company, inclosing two notes of the appellant, and saying: “You are authorized to deliver these notes to the Farmers National Bank of Lebanon upon delivery by them to your company of the deed properly executed, which deed you will please place on record at once and forward me your bill for services.” The trust company, by its secretary, on June 8, 1905, wuote acknowledging the receipt of the foregoing letter and the inclosed notes, and saying: “We forwarded the notes to Mr. Moyer and have received from him to-day the deed to Mr. Mack and have put it on record. ... We herewith enclose you our bill for services rendered.” The bill was for $272, of which $250 was the premium on the title insurance policy, in which the trust company was to covenant to indemnify the appellant against future loss, to the amount of $8,381.66, which policy had not been delivered to the appellant. Mr. Michener, for the appellant, at once wrote to the trust company objecting to the charge of $250 for the title insurance policy, and refusing to pay it upon the ground that the amount was exorbitant. The trust company replied insisting that the charge was reasonable, and explaining what had been done. After other letters had passed between the parties discussing the amount of the charge for the insurance of the title, the respondent company, on June 14, 1905, wrote to the attorney for the appellant and after referring to the amount of the bill said : “We have all the papers including the title insurance policy and are ready to deliver them to Mr. Mack upon payment of our bill. We might add that the deed to Mr. Mack is not recorded and that our title insurance policy only insures the title of Mr. Mack to the date of the deed. Any encumbrances or liens, that may arise affecting the title hereafter by reason of the deed not being recorded will be at Mr. Mack’s risk.” The answer asserted the right of the appellee to retain the deed and withhold it from the record until the bill of $272 was paid.

The petitioner immediately upon receipt of the letter last above quoted served upon the respondent written notice to record the deed, in accordance with the provisions of the act of April 1,1863, and followed up that notice by instituting this proceeding. The matter was disposed of in the court below upon the petition and answer, which fully disclosed the facts, and no testimony was taken. The learned judge of the court below held that upon the facts set forth in the answer the respondent had a right to retain the deed and withhold it from record until the bill of $272 was paid; and discharged the rule to show cause why the deed should not be placed on record or delivered to the petitioner. The petitioner appeals.

The appellee moved to quash this appeal upon the ground that the remedy which the appellant sought in the court below was purely statutory, and that the statute which afforded the remedy made no provision for an appeal. We have no doubt that the appellate courts are authorized to examine and review the proceedings of the court of common pleas in any matter specially committed to it by statute, so far as to inquire and determine the extent and limits of its power and the regularity of its exercise. The proper mode of asserting this jurisdiction was formerly by bringing the record of the proceedings before the appellate court for inspection by writ of certiorari. While under our present practice all proceedings for review are called an appeal, the change of name has no effect upon the jurisdiction of the appellate courts. In those cases in which a writ of certiorari would formerly have been the proper remedy we may now review the proceedings so far as to see whether they have kept within the limits of the powers conferred by the statute, and have exercised them in conformity with law: Northampton County Commissioners’ Appeal, 57 Pa. 452; Pollard’s Petition, 127 Pa. 507; Donoghue’s License, 5 Pa. Superior Ct. 1. The motion to quash is overruled.

The general principle that an attorney at law or conveyancer may retain papers intrusted to him, until he has been paid for services rendered in regard to them, must be conceded to be well settled: Dubois’s Appeal, 38 Pa. 231; McKelvy’s Appeal, 108 Pa. 615 ; Balsbaugh v. Frazer, 19 Pa. 95. Whether this principle can be made to cover the premium which a title insurance company exacts as the consideration for its written covenants to indemnify against such future losses through such particular defects of title as come within the terms of its policy, is a different question, which under the view we take of this case it is not necessary to consider. An attorney at law, or conveyancer, who is employed to examine a title is not by virtue of that employment clothed with power to take possession of papers without the express authority of his client. When one who is about to purchase land places in the hands of a conveyancer the agreement between himself and those from whom he is to buy, and instructs him to examine the title and prepare and send to the prospective grantors such a deed as may be necessary to properly convey the title, the conveyancer would undoubtedly have the right to retain, until his fees were paid, the original article of agreement which had thus been placed in his hands by his client, but upon such an employment, the conveyancer, after he had examined the title and prepared the deed and sent it to the prospective grantors, would have no lien or right to reclaim the paper with the possession of which he had thus parted. Nor could there be inferred from such a relation of conveyancer and client an authority in the former to accept for his client a delivery of the deed after it had been executed by the grantors. No agent can have a lien upon or right to retain property of a principal of which he obtains, without the authority of his principal, unlawful possession. The primary employment Of the respondent by the appellant did not clothe the former with authority to accept a delivery of the deed, or take possession of it, after it had been executed by the grantors.

The authority of the respondent to accept the delivery of this deed was founded only upon the letter of May 29, 1905, and that letter clearly defined the scope of the authority and the purpose for which it was granted, viz.: “ You are authorized to deliver these notes to the Farmers National Bank of Lebanon, upon delivery by them to your company of the deed properly executed, which deed you will please place on record at once and forward me your, bill for services.” Here was a grant of authority to accept the delivery of the deed, and in immediate connection therewith a duty was imposed upon the agent to at once place the deed upon record. The agents could not have read the letter which conferred upon .them the authority without clearly understanding that the purpose of the grant was that they might promptly record the deed. When a grant of power to an agent to take possession of property of his principal is directly and expressly coupled with the imposition of a duty to be discharged with regard to that property, the agent cannot after exercising the power refuse to perform the duty. The acceptance of the authority involves an assumption of the duty. That the officers of the trust company fully understood what their duty was with regard to this deed is established beyond question by the letter of June 3, 1905: “We forwarded the notes to Mr. Moyer and have received from him to-day the deed to Mr. Mack and have put it on record.” They not only understood their duty, as agents, but they asserted that they had performed it, which assertion was not true. The appellee has made all of these letters a part of the record by embodying them in its answer, and the facts thus brought upon the record make it clear that the appellee has no right to refuse to record the deed in question until the premium on the policy of title insurance has been paid.

The order of the court below is reversed and it is now ordered and decreed that the defendant do record in the office of the recorder of deeds of the county of Schuylkill the deed described in the petition, and that the costs in this court and the court below be paid by the appellee.


author: Head, J.,

text:
    Philadelphia Warehouse Company, Appellant, v. Colonial Biscuit Company.

      Practice, C. P. — Affidavit of defense — Construction of affidavit.

    In disposing of a rule for judgment for want of a sufficient affidavit of defense, the sufficiency of the affidavit is not to be determined by applying to it the same rules of refined and technical criticism that were formerly thought necessary to be applied in passing on the validity of a bill of indictment or a demurrer at common law. On the contrary, such affidavit is to be construed in a spirit of fair liberality; its language is to be given the same meaning it would be given in the ordinary speech of the people, and all of the statements of fact therein appearing, when thus regarded, must be accepted as true.
    In an action for goods sold and delivered where the plaintiff’s statement of claim avers in explicit terms that the sale was for net cash, and the affidavit of defense denies just as explicitly that the agreement was for net cash, but that the defendant was to pay for the goods as they were delivered from time to time in accordance with needs of defendant’s business, that is to say for a designated amount per week, the affidavit of defense is sufficient to prevent judgment.

      Argued Dec. 12, 1906.
    Appeal, No. 35, Oct. T., 1906, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1905, No. 1,183, discharging rule for judgment for want of a sufficient affidavit of defense in case of Philadelphia Warehouse Company v. Colonial Biscuit Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered.
    Prom the record it appeared that the goods sold were barrels of flour. The statement of claim averred that the terms of sale were net cash. Appended to plaintiff’s statement was the following letter:
    “ Philadelphia, October 12, 1905.
    “Colonial Biscuit Company,
    “ 12th & Brown Streets,
    “ Philadelphia.
    “ Gentlemen :—
    “ Confirming the writer’s conversation with your flour buyer this morning, we hand you herewith by messenger four samples of flour representing lots as per memorandum below, which we offer subject to prior sale, at the prices annexed. The flour is to be sold in warehouse on net cash terms.
    “ Hoping to be favored with an order, we remain.
    “Yours very truly,
    “ [Signed] Edwards S. Dunn,
    “ Treasurer.”
    “Venus” 200 bbls. at 15th & Carpenter Sts. Price $3.75
    “F” 1090 “ “ 16th & Callowhill “ “ 3.50
    “100$” 365 “ “ 15th & Carpenter “ “ 3.25
    “D” 450 “ “ 16th & Callowhill “ “ 3.00
    Defendants’ affidavit of defense contained, inter alia, the following averments:
    The defendant company did agree to purchase from the plaintiff 335 barrels of 100$ flour at $3.25 in warehouse, but did not agree to pay net cash; on the contrary, the terms of the contract were that defendant company should pay for the same as it was hauled from the warehouse from time to time in accordance with the needs of the defendant’s business; that is to say, about sixty barrels per week, and. in pursuance of this contract the defendant company did haul, and pay for as hauled, the following, to wit: On November 14, 1905, thirty barrels ($97.50), and on November 27, 1905, thirty barrels ($97.50) ; in all $194.
    February 25, 1907:
    Defendant company denies that it confirmed the alleged terms of sale, and upon October 19,1905, or shortly thereafter, upon the receipt of the bill for 335 barrels and order for release of flour from the warehouse, your deponent, as treasurer of the ■company defendant, telephoned to the plaintiff company explaining to the secretary of the company the terms of the contract as herein set forth by your deponent, and thereupon the secretary of the company stated that Edward S. Dunn, the treasurer of the company, was in New York, and that the facts would be communicated to him, and upon his return some time thereafter the said treasurer called at the office of defendant company, and your deponent for the company denied that the company has purchased the said flour on any such terms without any opportunity for inspection, defendants’ contract having provided for deliveries from time to time would have enabled your deponent to examine the flour as hauled and delivered, to all of which the said Dunn replied that the company defendant was good for the money and that his company would sue for it.

      jError assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.

      J. Douglass Brown, of Brown, Bikle ¿f Jenlcs, for appellant.

      William S. Divine, for appellee.
   Opinion by

Head, J.,

If the contract between the parties for the sale and purchase of 335 barrels of flour only required “ that the defendant company should pay for the same as it was hauled from the warehouse from time to time in accordance with the needs of the defendant’s business,” the learned court below was right in discharging the rule for judgment for want of a sufficient affidavit of defense. Indeed we do not understand this to be disputed, because the sole claim of the plaintiff for judgment, on the record as it now stands, rests on the contradictory proposition that the terms of sale were “ net cash.”

This court has frequently said, in substance, that, in disposing of such cases, the sufficiency of the affidavit is not to be determined by applying to it the same rules of refined and technical criticism that were formerly thought necessary to be applied in passing on the validity of a bill of indictment or a demurrer at common law. On the contrary, such affidavit is to be construed in a spirit of fair liberality; its language is to be given the same meaning it would be given in the ordinary speech of the people, and all of the statements of fact therein appearing, when thus regarded, must be accepted as true. In the present case we have, in the very outstart of the affidavit, the clear, plain averment as to what the contract, in fact, was. That averment distinctly challenges the correctness of the plaintiff’s basic statement that the terms of payment were “ net cash,” and, by the rule above stated, should put it to the proof of that proposition, without establishing which, it cannot hope to recover.

But the learned counsel for the appellant, with much skill, argues that defendant could not have meant what has already been quoted from the affidavit, because of certain other acts or declarations set forth in the statement, affidavit or correspondence. This tends to put before us the evidential value of such matters and invites us to resolve the issue of fact raised, when our only function is to determine that it exists.

The contract, whatever it really was, was made over the telephone. The appellant earnestly argues that its letter of October 12, confirming its version of the conversation, and stating plainly that the terms were “net cash,” to which there is no reply in writing, leaves no room for doubt that the contract was as it declares. That this letter will be of great value as a piece of corroborative evidence on the trial might be conceded. For our purposes, however, it is met by the flat denial of the defendant that “ it at any time confirmed the alleged terms of sale,” but that, upon receipt of the bill for the entire 385 barrels, its representative, first over the telephone and then by personal interview, insisted that the terms of contract were “ as herein set forth ” and denied “ that the company (defendant) has purchased said flour on any such terms without any opportunity for inspection, defendant’s contract having provided for deliveries from time to time,” etc.

We see no reason for lengthening this opinion by adverting to a number of other matters referred to in the affidavit and argument of counsel. It is sufficient to say that upon an attentive consideration of the affidavits filed we are all of the opinion that an issue of fact has been fairly raised which must result in the case being tried to determine that issue. The assignment of error is overruled.

Appeal dismissed at cost of appellant without prejudice, etc.


text:
    Wanamaker v. Buchanan, Appellant.

      Landlord and tenant — Cropper—Contract—Execution—Leasing on shares.

    A cropper is one hired to work land and to be compensated by a share of the produce. Such a contract gives him no legal possession of the premises, further than as a hireling. The legal possession remains in the hirer or landlord, and hence the remedy by distress is not applicable to him.
    Leasing on shares is where the owner of a farm puts the worker of it into possession under an agreement to receive as compensation or rent a certain portion of the actual annual crop. In these cases the farms are not leased, but the owner occupies a dual position, being a tenant in common with the worker as to the crop, and remaining virtually in possession, as the worker is his laborer. Therefore, the owner cannot distrain, nor can the whole crop be sold for a debt of either owner or worker.
    Where a written agreement between an owner of a farm and another person shows that the latter is to cultivate the land and receive a one-half interest in the crops, but all moneys are to be paid to the owner, and after net proceeds ascertained, one-half thereof are to be paid to the cropper, a creditor who has obtained a judgment against the cropper cannot levy upon a “half interest” in crops upon the farm; but if it appears that the cropper was to furnish all the poultry, and the owner of the land was to have a one-half interest therein, the creditor of the cropper may levy upon the latter’s interest in the poultry.
    Argued Nov. 20, 1906.
    Appeal, No. 168, Oct. T., 1906, by defendant, from judgment of C. P. Chester Co., Oct. T., 1905, No. 29, on verdict for plaintiff in case of John Wanamaker v. W. H. Buchanan.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed in part.
    Sheriff’s interpleader to determine the ownership of stock, poultry and crops upon a farm. Before Butler, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged as follows :
    We are requested to say that, under all the evidence in this case, the verdict must be for the plaintiff. I take it for granted that that is upon the ground, as contended by the plaintiff, that the contract under which the parties were operating, the lease dated April 1, 1905, gives the tenant Wachter no title in any of the property upon the premises, but only the right to receive one:half of the proceeds of that property.
    Mr. Gheen: A cropper’s lease, is our contention.
    The Court: The point is affirmed. The lease is very long, and there are a half dozen different attempts to make clear just what the relations of the parties are with respect to the property and the title, and, taking them altogether, it is very much more difficult to reach a conclusion as to a proper interpretation of the paper than if it had all been done in one place and briefly. Our impression is, however, and we are' going to so hold at this time, that, while the terms of the lease are not free from some ambiguity, yet, taking all parts of the lease into consideration, and particularly in connection with the eighteenth paragraph: “ In consideration of the faithful performance by the party of the second part of the covenants and agreements herein contained on his part to be performed, the said party of the second part shall receive one-half of the net proceeds or earnings of the farm. But all moneys or proceeds must first be paid over to the party of the first part, or his duly ■authorized representative, and after the net proceeds or earnings have been ascertained by the party of the first part, or his duly authorized representative, one-half of the same shall then be paid by the party of the first part to the party of the second part,” — interpreting, as I say, the relations of the parties here in the light of all the various provisions contained in the articles, and having regard particularly, in the end, for the clause just referred to, we are inclined to believe that the true intent and purpose of the parties was, to put the whole title to everything raised upon this property, — stock, crops and poultry, — in the landlord, and that the use of the term “ half interest,” etc., where it occurs, is simply intended to indicate the division that would ultimately be made, — not to indicate title, but to indicate the extent of interest in the way of compensation or division of the proceeds when the property should be finally disposed of. Entertaining that view, that Wachter, the tenant, had no -title to any of the property, levied upon on the premises, it follows that the property was not subject to Wachter’s debt; it was not subject to be levied upon by Mr. Buchanan to par Wachter’s debt, and that it does not belong to Mr. Wanamaker, and that the verdict here, therefore, must be in his favor. In other words, you will render a verdict in favor of the plaintiff.
    February 25, 1907:
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was the charge of the court, quoting it.

      Charles U. Pennypacher, for appellant.
    — The tenant’s interest in the stock, poultry and crops upon the Wanamaker farm was subject to levy r Snyder v. Stehman, 10 Pa. Superior Ct. 639 ; Loose v. Scharff, 6 Pa. Superior Ct. 153.

      John J. G-heen, for appellee.
    — One hired to work land and receive as compensation part of the produce is a cropper, not a tenant: Adams v. McKesson’s Executrix, 53 Pa. 91.
    A contract for cropping gives the cropper no legal possession of the premises further than as a hireling ; the legal possession is in the hirer and the remedy by distress is not applicable: Steel v. Frick, 56 Pa. 172; McCormick v. Skiles, 163 Pa. 590.
   Opinion by

Head, J.,

We may agree with the learned trial court that the correct construction of the agreement of April 1, 1905, by which the rights of the parties to the present issue must be determined, is not wholly free from difficulty. The many sections and provisions of the instrument are not strictly homogeneous, but of a somewhat composite character. Considering the paper in its entirety and drawing its meaning from its “ four corners,” we are led to the conclusion that Wachter became a cropper of the land of Wanamaker and that the relation of landlord and tenant was never created between them.

“ A cropper is one hired to work land and to be compensated by a share of the produce. Such a contract gives him no legal possession of the premises, further than as a hireling. The legal possession remains in the hirer or landlord, and hence the remedy by distress is not applicable to him: ” Steel v. Frick, 56 Pa. 172.

If one be hired to work land, receiving for his compensation part of the produce, he' is a cropper, not a tenant. “ He has no interest in the land, but receives his share as the price of his labor: ” Adams v. McKesson, 53 Pa. 81.

“ What is called ‘ Leasing on Shares ’ is also customary, in which case the owner of the farm puts the worker of it into possession under an agreement to receive as compensation or rent a certain portion of the actual annual crop. In these cases the farms are not leased, but the owner occupies a dual position, being a tenant in common with the worker -as to the crop, and remaining virtually in possession, as the worker is his laborer. Therefore, the owner cannot distrain, nor can the whole crop be sold for a debt of either owner or worker: Jackson and Gross on Landlord & Tenant, 27, 28; s. c., 8 Am. & Eng. Ency. of Law, 2d ed., 324.

Turning, then, to the agreement it is to be observed that there is a complete absence of the familiar words “ grant, demise and let,” or other like words adequate for the creation of an estate for years in land. In their stead we have the following: “ That the said party of the first part, for and in consideration of the performance of the covenants, etc., doth hereby agree to give the party of the second part a one-half interest in the crops to be raised upon the farm of said party of the first part, located,” etc. The idea of a tenancy as to the land is further excluded by sec. 20 which provides : “ The said party of the second part shall he given a monthly lease, without cost, to the dwelling located upon the premises heretofore described,” etc. Had it been the intention to lease the farm to a tenant, the building would have gone with the land and such a section as the one cited would be both useless and meaningless. Sec. 18 seems to even more emphatically stamp the relation between the parties as that of landowner and hired man, employer and employee, and we quote it in full. “ In consideration of the faithful performance by the party of the second part of the covenants and agreements herein contained on his part to be performed, the said party of the second part shall receive one-half of the net proceeds or earnings of the farm. But all moneys or proceeds must first be paid over to the party of the first part, and after the net proceeds or earnings have been ascertained by the party of the first part, one-half of the same shall then be paid by the party of the first part to the party of the second part.” By the express terms of sec. 3, Wachter was required “to furnish and pay for all help and labor required for the proper cultivation of the farm.” In discharge of this obligation he hired Buchanan, the defendant, who continued to serve until there was due him upwards of $300. It would hardly be contended that the landowner was under any obligation, legal or moral, to pay this debt. Buchanan having obtained judgment against Wachter issued execution thereon and caused a levy to be made on a “ half interest ” in certain crops, live stock and poultry found upon the farm. Claim to the property levied on having been made by' Wanamaker, the sheriff obtained a rule on the parties to interplead, and this issue was framed to try the title to the property seized.

Now it ought to be clear that the rights of Buchanan, the judgment creditor, can rise no higher than those of Wachter, the debtor. Had the latter, at the time of the levy, advanced a claim to divide the live stock, growing crops, or hay, grain or straw in the barn and take away the one-half in kind, such claim would have been effectually met and answered by a reference to his agreement. The compensation therein provided for his services was not the transfer to him of the title to one-half the live stock on the farm, all of which, at the inception of his relations with Wanamaker, belonged to the latter ; nor was it the ownership of one-half of the crops, growing or grown, regardless of the cost and expense of production. But it was the right to receive, in the language of the eighteenth section, “one-half of the net proceeds or earnings of the farm.” The right to first receive the gross proceeds and to make the proper deductions therefrom necessary to ascertain the net proceeds, was clearly and expressly declared to be vested exclusively in the landowner. In other words, Wachter was but a cropper, a man who had agreed to exchange his labor for a compensation none the less fixed and definite because its amount was contingent upon the success of his own efforts. With the ascertainment and payment of that compensation every right secured to him by his agreement would have been satisfied. But the legal possession and right of possession of the physical property levied on, except the poultry, remained at all times in the landowner. As to these items there was no foundation of title, absolute or qualified, in the judgment debtor on which the levy could rest, and the learned court below was therefore right in directing a verdict for the plaintiff. Wachter may be entitled to an account, and such account may show there is still due and unpaid some part of the compensation secured to him by his agreement. But these matters can neither be discussed nor disposed of in this feigned issue, the sole purpose of which is to try the title to specific items of personal property.

The situation of the parties with relation to the poultry levied on seems to have been essentially different from that already considered. By the original agreement offered in evidence, dated August 23, 1902, Wachter was to furnish all the poultry and Wanamaker was “to have a one-half interest therein.” Clearly, therefore, the former continued to own the remaining one-half, having never disposed of nor lost his title thereto. By the agreement in force at the time of the levy, Wachter was “to keep up the stock of poultry as it is at the present time,” and Wanamaker was to “receive one-half of the proceeds therefrom and have one-half ownership of all poultry on the farm.” As to the poultry, therefore, the relation of the parties was practically that of equal partners. Each owned one-half the stock contributed to the joint venture; each was to receive one-half the profits if profit resulted; each to bear one-half the loss if the venture proved unsuccessful. When the agreement was terminated by the ñotice to quit and Wachter’s abandonment of the premises, the time for the liquidation of tbe partnership business and for the ascertainment and division of stock and profits or losses had arrived. We are unable to discover any reason why the share of Wachter in the poultry was not the subject of levy. True, it does not appear that the writ was the special one which, since the Act of April 8,' 1873, P. L. 65, is commonly used to take in execution the individual interest of a partner in the property of his firm; but such interest may still be levied on and sold under an ordinary fi. fa.: Deng-ler’s Appeal, 125 Pa. 12. “ The only peculiarity about such a levy is that it does not bind the goods in specie, nor does the sale, in pursuance of the levy pass them; but the interest of the debtor in the final settlement of partnership accounts in .respect to such goods, is what is seized and sold. That interest, however, is leviable,” etc.: Smith v. Emerson, 43 Pa. 456. As to the item of poultry ” in the levy, under the undisputed evidence, a verdict for the defendant should have been directed.

"We find nothing of merit in the second and third assignments of error and they are accordingly dismissed.

The judgment is reversed and the record remitted with direction to the court below to enter judgment in favor of the plaintiff as to all items embraced in the levy except “ poultry,” and as to this item to enter judgment for tbe defendant. The costs of this appeal to be paid by the appellee.


text:
    Hatboro National Bank, Appellant, v. Stevenson.

      Promissory note — Defenses—Affidavit of defense — Set-off.
    In an action by the last indorser on a promissory note against the maker of the note, which was payable to the maker’s order, an affidavit of defense is sufficient which alleges that the defendant indorsed the note, and delivered it to the second indorsee, that the plaintiff was not the owner of the note, but that the suit was brought by the plaintiff for the use and benefit of the second indorsee, and for the purpose of depriving the defendant of his just defense thereto, and preventing him from setting off against the payment of the note an amount claimed to be due from the second indorsee to the defendant.
    The Superior Court will not reverse an order of the lower court discharging a rule for judgment for want of a sufficient affidavit of defense, where the affidavit of defense sets forth a complicated state of facts, supporting a claim of set-off, and the facts alleged constitute a defense according to the reasonable and common understanding of the language.
    Argued Dec. 12, 1906.
    Appeal, No. 238, Oct. T., 1906, by plaintiff, from order of O. P. No. 3, Phila. Co., June T., 1906, No. 3,015, discharging rule for judgment for want of a sufficient affidavit of defense in case of Hatboro National Bank v. James L. Stevenson.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    The note in suit was as follows:
    “$1175.00. - Phila., Jany. 16, 1906.
    “ Four months after date I promise to pay to the order of myself Eleven Hundred Seventy-five Dollars at office
    Ridge Ave. & Diamond St., Phila. without defalcation for value received.
    “No. Due (Sgd.) James L. Stevenson,
    “ Endorsed.
    “ (Sgd.) James L. Stevenson,
    “ Estate of Wm. F. Albrecht, dec’d.
    “ (Sgd.) Wm. P. Albrecht, Lewis Albrecht,
    “ Executors.
    “ (Sgd.) William I-Iagel.”
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      Alfred N. Keim, with him Oarroll R. Williams, for appellant.
    — An affidavit of defense traversing averments in the statement not of the essence of the undenied cause of action, will not prevent judgment; such averments may be treated as surplusage: Terry v. Wenderoth, 147 Pa. 519.
    The affidavit of defense must be responsive to the statement of claim and the precise facts set up: Pittsburg v. Daly, 5 Pa. Superior Ct. 528; Register Co. v. Flaherty, 12 Pa. C. C. Rep. 475.

      February 25, 1907:
    The affidavit is not sufficient if its averments are shifty, evasive and incomplete, and some of the averments are but conclusions of law: Superior Nat. Bank v. Stadelman, 153 Pa. 634; Columbus Land Co. v. McNally, 172 Pa. 158; Marsh v. Marshall, 53 Pa. 396 ; Bordentown Banking Co. v. Restein, 214 Pa. 331; Bldg. & Loan Assn. v. Brown, 4 W. N. C. 494.

      J. Quincy Runsicher, for appellee.
    — It is respectfully submitted that that portion of the plaintiff’s statement of claim reciting the origin of the note on which suit was brought in this action was merely anticipation of evidence, and not properly a part of a plaintiff’s statement of claim, and that the defendant could not be required to answer to it: Drake v. R. R. Co., 5 Pa. C. C. Rep. 21; Vaughan v. Pittsburg Locomotive & Car Works, 32 Pitts L. J. 130; Smith v. Stevenson, 47 Pitts. L. J. 231; Anchor Savings Bank v. Stoneham Tannery Co., 8 Pa. C. C. Rep. 303; Griffith v. Sitgreaves, 2 W. N. C. 707; Henry v. Lynde, 12 Pa. C. C. Rep. 189.
    Set-off was sufficiently averred.
    The Supreme or Superior Court will not reverse an order discharging a rule for judgment for want of a sufficient affidavit of defense except for clear error of law. In doubtful cases, especially in those requiring broad inquiry into facts where the court refused judgment, the matter in controversy should go to the jury as the proper tribunal to decide the cause under proper instructions from the court: Griffith v. Sitgreaves, 2 W. N. C. 707; Radcliffe v. Herbst, 135 Pa. 568; Aetna Ins. Co. v. Confer, 158 Pa. 598.
   Opinion by

Henderson, J.,

The plaintiff’s statement of claim contains, in addition to the copy of the note on which the suit was brought and the necessary averments with reference thereto, a history of the obligation. This was apparently introduced to show that the defendant’s liability arose in a transaction had directly with the plaintiff, although the note shows a contract with the estate of William F. Albrecht. It is set forth that the note on which the suit was brought is the last of several renewals and that the first note was given to the plaintiff by the defendant for money loaned to the latter at his request. The defendant admits the execution of the obligation, but denies that he made application to the plaintiff for a loan for the purpose alleged or for any other purpose; or that the plaintiff made or agreed to make the loan alleged at the date set forth or at any other time. He alleges that the original note was indorsed and delivered to William F. Albrecht and that after his death renewals were made to his estate. He avers that the plaintiff is not the owner of the promissory note, but that this suit was brought by the plaintiff for the use and benefit of the estate of the said Albrecht and for the purpose of depriving the defend-. ant of his just defense thereto and preventing him from setting off against the payment of the note an amount claimed to be due from the estate of Albrecht to the defendant. This is a clear denial of the material parts of the statement of claim and put the plaintiff on proof that it is a bona fide holder for value before maturity without notice. It would be difficult to make . a clearer denial that any contract relation existed between the defendant and the plaintiff in the execution and delivery of the original note than that which the defendant makes in his affidavits. According to the defendant’s averment the transaction out of which the obligation arose was with William F. Albrecht and the note was given to reimburse him and William Hagel for their outlay in the settlement of a suit in which the defendant and others were involved with them, and the renewals of the first obligation from time to time were uniformly delivered to Albrecht. The denial is as broad as the statement of claim and responsive to its essential averments. The only other question in the case arises on the .claim of set-off. The appellant’s objection to the affidavit with reference thereto is that it is not sufficiently shown that the defendant has acquired title to the claim against William F. Albrecht arising under his alleged agreement to remove the earth and rubbish deposited by him on the Price lot. The first affidavit sets forth that Price was the owner of the premises and that Parks was his agent, and that Parks gave permission to Albrecht to encumber the lot with refuse from his brick yard. It is alleged in the supplemental affidavit that Price held the title to the lot but that Parks was the -real owner and that while the title whs in Price, Albrecht used the lot as a place for the deposit of waste material from his brick yard. It is further shown that Price afterward convej’-ed the lot to Lamorelle; that this was done with the consent of Parks and that Parks agreed verbally to assign, transfer and set over to Lamorelle all benefits accruing under the contract with Albrecht with reference to the use of the lot. On March 15, 1906, the defendant became the equitable owner of the lot, and on April 21 of the same year took an assignment from Lamorelle of the claim acquired by him from Parks and Price as appears from exhibit “ A ” attached to the supplemental affidavit of defense. Albrecht’s undertaking, to remove the rubbish from the lot was in parol, and the verbal agreement of Price or of Parks for whom Price held the title to assign the claim against Albrecht to Lamorelle who was taking title to the lot vested in Lamorelle airy right against Albrecht which existed in Parks before the conveyance. It is true the affidavit states that Parks “ agreed to assign, transfer and set over ” the claim to Lamorelle, but we think the fair intendment of this averment is that when Lamorelle took the title to the lot he got from the owner any right existing against Albrecht. An affidavit of defense ought not to be subjected to a refinement of criticism. If it sets forth facts which according to the reasonable and common understanding of the language used constitute a defense it is sufficient to prevent judgment. In doubtful cases the affidavit should not be held insufficient.

The appeal is dismissed at the cost of appellant without prejudice, etc.


author: Rice, P. J.,

text:
    Ruscomb Street.

      Road law — Vacation of street — Cul-de-sac—Damages.
    Where the effect of the vacation of a street is not to cut off access to lots from any direction, but merely to make it necessary to travel farther than before to reach them, the owner of the lots sustains no injury which will entitle him to recover damages for the vacation of the street; but where the vacation of a part of a street leaves to the lots on the remainder of the street but one mode of access from the general system of streets in the vicinity, whereas before the vacation there were two, damages will be allowed to the owners of such lots.
    The fact that between the vacated part of a street and the next intersecting street there are blind streets, which open out of the street, but afford no means of access to the general system of streets in the vicinity, cannot prevent the application of the principle upon whieh Melon Street, 182 Pa.-397, was decided. It may affect the damages, but upon that question the owner is entitled to be heard before the jury on appeal.
    February 25, 1907 :
    Reargued. Oct. 16, 1906. In the matter of the vacation of Ruscomb street.
    The case was previously argued on October 13, 1905, and an opinion filed by Rice, P. J., on April 23, 1906. The case is reported in 30 Pa. Superior Ct. 476.
   Opinion by

Rice, P. J.,

This is the same case that is reported in 30 Pa. Superior Ct. 476. As shown by the opinion, the decision there reported was based on our supposition that Twentieth street was an open street and connected with the general system of streets to the south of Rockland street. This supposition was warranted by the map or plan submitted, and we discovered nothing in either paper-book to show that the map or plan was incorrect in this particular. But it was alleged in the application for reargument, and is now conceded by counsel for the city, that the map or plan was not correct and that at the time of the vacation, as well as of the view for assessment of damages, Nineteenth street, Uber street and Twentieth street were not open north of Ruscomb street or south of Rockland street, and that Rockland street was not open. The situation is sufficiently shown for present purposes by the following sketch. It is thus seen — speaking now of the lots abutting on Ruscomb street between Nineteenth street on the east and Twentieth street on the west — that the vacation of a part of Ruscomb street west of Twentieth street left but one mode of access from the general system of streets in the vicinity, whereas before the vacation there were two. Were it not for Twentieth street, Uber street and Nineteenth street, the case, so far as the properties above referred to are concerned, could not be distinguished from the Melon street case, 182 Pa. 397. But the fact that between the vacated part of a street and the next intersecting street there are blind streets, which open out of •the street, but afford no means of access to the general system of streets in the vicinity, cannot prevent the application of the principle upon which that case was decided. It may affect the damages, but upon that question the owner is entitled to be heard before the jury upon the pending appeal from the report of viewers, unless upon the trial of the case facts are developed which do not now appear. It follows that the assignments of error which relate to the lots abutting on Ruscomb street must be sustained.

The other assignments relate to lots which do not abut onRuscomb street, nor upon streets that are closed at one end by the vacation of the part of the street between Twentieth street and the western line of the Germantown and Chestnut Hill Railway. Access to these lots from Ruscomb street, and from the general system of streets lying west of Nineteenth street, remains undisturbed; but in order to reach East Logan street it is necessary to travel further than before the vacation. Notwithstanding the able and earnest argument of appellant’s counsel we remain of opinion, after full reconsideration of the question, that this is not such a special injury, differing in kind from the inconvenience sustained by property owners on other streets, and other members of the public desiring to reach East Logan street by way of Ruscomb street, as gives the owner of these lots standing to claim damages by reason of the vacation of the portion of Ruscomb street above described. The general subject is fully discussed in the opinion of the learned judge below and our former opinion, and we do not deem it necessary to add anything further.

And now, February 25, 1907, after reargument and re consideration of this appeal, the order heretofore made is changed so as to be as follows : The first, third and tenth assignments, and the seventh assignment, so far as the latter assignment relates to the lot on the southeast corner of Twentieth and Ruscomb streets, are sustained, and the order of the court below so far as it relates to the lots referred to in the foregoing is reversed: the second, fourth, fifth, sixth, eighth, ninth and seventh assignments so far as it relates to the premises on Twentieth street at corner of Rockland street, are overruled, and the order so far as it relates to the several lots referred to is affirmed.