text:
    Smith, Appellant, v. Danielson.

      Partition—Charge on land—Share of widow—Act of March 29, 18S2, P. L. 190—Act of June 12,1878, P. L. 205—Actions—Parties.

    1. A charge upon land in favor of the widow, created in partition proceedings under the Act of March 29, 1832, P. L. 190, is created by the express mandate of the law, and if a recognizance bond, or other security is required by order of the court, or voluntarily given by the party, it is merely an additional and collateral security, and does not extinguish the lien created by the statute; nor is any order of court necessary to establish the charge upon the land.
    2. Where a person acquires a fee in six-sevenths of the land upon which a widow’s portion is charged, he acquires the right to six-sevenths of the principal payable upon the death of the widow, and ordinarily the six-sevenths thus charged would be merged in the inheritance; but if such person on reselling the land takes a bond from his vendee to secure the payment of the principal of the entire dower fund when it becomes due, the law will presume that no merger was intended and no merger in fact took place. Any one taking title under the vendee is bound to take notice of the partition proceedings, any assignment of the dower fund, and the fact that there was no merger; and if the orphans’ court in decreeing a sale of the land for the vendee’s debts mistakenly directs that the principal shall be paid to the heirs of the widow after the latter’s death, the purchaser at such sale and his successors in title are bound to take notice of the mistake, and to pay the fund to “the parties legally entitled to receive it,” as provided by the act.
    3. In such a case the parties legally entitled to the fund may after the death of the widow maintain an action of assumpsit against the owner of the land to recover the principal of the fund, but in such an action judgment will be entered so as to limit the lien of the judgment, and any execution issued on the judgment, to the land against which the fund had been charged in the partition proceedings.
    Argued April 19, 1910.
    Appeal, No. 32, April T., 1910, by plaintiff, from judgment of C. P. Westmoreland Co., Feb. T., 1907, No. 570, for defendant non obstante veredicto in case of Joseph Smith, administrator of the estate of Amanda Vance, deceased, v. Charles Danielson’s Executors.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit to recover a charge on land. Before McConnell, J.
    The facts are stated in the opinion of the Superior Court.
    At the trial'the jury returned a verdict in favor of the plaintiff in the amount of $773.08, but the court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      James S. Moorhead, with him M. N. McGeary, Robe F. Marsh and Robt. W. Smith, for appellant.
    The Act of June 12, 1878, P. L. 205, was not intended to relieve the covenantor or grantee in a deed, as regards the land described in that deed, and which has been conveyed to him and subject to the charge or incumbrance: De Haven v. Bartholomew, 57 Pa. 126; York Borough v. Welsh, 117 Pa. 174; Kunselman v. Stine, 192 Pa. 462; Dull v. Slater, 31 Pa. Superior Ct. 488.

      Charles E. Whitten, with him H. Clay Beistel and Paul H. Gaither, for appellee.
    The action of assumpsit cannot be maintained: Easby v. Easby, 180 Pa. 429; Hollenberger v. Yaukey, 145 Pa. 179; Fisler v. Reach, 202 Pa. 74; Kunselman v. Stine, 192 Pa. 462.

      March 1, 1911:
   Opinion by

Porter, J.,

David Forsythe died intestate and seized of a tract of land, containing thirteen acres and forty-five perches, in Westmoreland county. Alfred Vance acquired title from the heirs of the deceased to six-sevenths of this tract, subject to the right of dower of the widow of deceased. Proceedings in partition were had in the orphans’ court of Westmoreland county, and the land was allotted to Alfred Vance at the valuation thereof by the inquest, in November, 1868. The estate of Rebecca Forsythe, the widow of the decedent, in this land, was in this proceeding determined to be the interest on $716.10, payable annually during her life, as her statutory dower, said sum to be charged upon the land; the principal of said amount to be paid, upon her death, to the parties entitled, and the court decreed that Vance enter into recognizance to pay said interest annually to the widow during her life and to pay the children of Sarah Armstrong, who as heirs of David Forsythe, deceased, were entitled to one-seventh of the amount, their shares of said amount at the death of said widow. The calculation filed in this proceeding showed that the amount to be secured to the Armstrong children, upon the death of the widow, was $102.30. Vance entered into a recognizance, which was approved by the court, conditioned that he "pay yearly to Rebecca Forsythe, the widow of David Forsythe, the interest on $716.10 .... and, at her death, pay or cause to be paid unto the said children of Sarah Armstrong or their legal representatives their respective shares of said sum.” Rebecca Forsythe, the widow, subsequently became the wife of John Zundel, and Vance and those who after-wards acquired title under him paid to her yearly, during their respective periods of ownership, the sum of $42.96, the amount of her dower charge to which the land was subject. Alfred Vance and his wife on December 18, 1876, for the consideration of $2,500 conveyed this land to Louis Krepps under a deed which made no mention of the dower charge, but Krepps at the same time executed a bond in favor of Vance, in the penal sum of $1,432.20, with warrant of attorney to confess judgment, conditioned that he (Krepps) pay or cause to be paid “unto the said Alfred Vance the sum of $716.10 at the death of Rebecca Zundel, who was the widow of David Forsythe, deceased.” Vance, on December 20, 1896, assigned, out of the amount secured by this bond, the sum of $613.80, to Amanda Vance, .the plaintiff’s intestate. It may here be noted that the part of this bond so assigned to Amanda Vance represented exactly six-sevenths of the entire principal of the dower fund, the interest upon which was to be paid to Rebecca Forsythe during her lifetime, and with the one-seventh which was to be paid to the Armstrong children constituted the entire fund which was to become payable upon the death of said widow. Louis Krepps died intestate on June 27, 1882, and this tract was sold by order of the orphans’ court for the payment of his debts, the order of court under which the sale was made providing that the land should be sold “subject to the payment of the interest annually on $716.10 to Rachael Forsythe, during her lifetime, and at her death the principal sum to be paid to the heirs of said widow.” The return to this order of sale, which was approved by the court, and the deed to Samuel S. Flack, the purchaser, dated March 7, 1883, disclose that the sale was made upon terms substantially following the language of the above quoted order. It is evident that two errors, clerical or otherwise, crept into this order, one calling the widow Rachael instead of Rebecca Forsythe, and the other providing that the principal sum upon which the dower interest of the widow was based, should at her death be payable to her heirs.' Samuel S. Flack, on March 20, 1893, conveyed the same land to Daniel F. Williams, by deed which contained the following covenant, viz.: “subject to a dower charge of $42.96 to be paid annually to Rebecca Forsythe (now Zundel) widow of David Forsythe, deceased, during her natural lifetime by the said Daniel F. Williams, and at her death the said Daniel F. Williams to pay the principal sum of said dower, namely $716.10 to the person or persons lawfully entitled thereto; but no right to said dower that may now be held by the grantors hereto by right of purchase is hereby conveyed, but said right remains the same as before the existence of this indenture.” Daniel F. Williams, on April 17, 1893, conveyed the land to Charles Danielson, by deed which contained the following covenant, “said lands being subject to a yearly dower of $42.97 to be paid annually to the widow of David Forsythe, deceased, now Rebecca Zundel, during her natural lifetime, and at her death the principal sum of said dower, namely $716.10, to be paid by the party of the second part to the person or persons lawfully entitled to the same.” Rebecca Forsythe, afterward Zundel, the widow of David Forsythe, died in June, 1904, and this action of assumpsit was brought by the administrator of Amanda Vance, deceased, to recover of Charles Danielson, who was then living and the owner of the land, the six-sevenths of the $716.10 principal sum of the dower fund which had been charged upon the land. The plaintiff averred that the land in the hands of the defendant was charged for the payment of the entire principal sum of dower fund, and that as to $613.80 of that fund, she was the party entitled under the law to receive it. Charles Danielson, the defendant, died during the pendency of this action, and his executors were substituted as parties defendant. There was a verdict in favor of the plaintiff for the amount claimed, with interest thereon, but the court subsequently entered judgment in favor of the defendant non obstante veredicto, from which judgment the plaintiff appeals.

The proceedings in partition of the estate of David Forsythe, deceased, were subject to the provisions of the Act of March 29, 1832, P. L. 190, and all of the land having been allotted to Alfred Vance he took it subject to the provisions of the forty-first section of that statute; that the sum of $716.10, at which the share of the widow was valued, should remain charged upon the premises .... and the legal interest thereon should be annually and regularly paid by the person to whom such real estate shall be adjudged, their heirs or assigns holding the same, according to their respective portions, to the said widow, during her natural Ufe, .... the same to be recovered by the widow by distress or otherwise as rents in this commonwealth are recoverable. The widow having died, the concluding sentence of this section of the statute is the one material for our consideration. “On the death of the widow, the said principal sum shall be paid by the children, or other lineal descendants to whom the said real estate shall have been adjudged, their heirs or assigns, holding the premises, to the persons thereunto legally entitled.” The charge upon the land, which results in such a case, is by the express mandate of the law, and if a recognizance, bond or other security is required by order of the court, or voluntarily given by the party, it is merely an additional and collateral- security, and does not extinguish the lien created by the statute: Medlar v. Aulenbach, 2 P. & W. 355; Good v. Good, 7 Watts, 195; nor is any order of court necessary to establish the charge upon the land: Kline v. Bowman, 19 Pa. 24. Vance; by reason of his former ownership of six-sevenths of the land, thus became entitled to a like proportion of the principal sum thus charged upon the land to become due after the death of the widow. Under this condition the presumption would generally be that his interest in the charge was merged in the inheritance, in the absence of evidence of a different intention and of circumstances which made it contrary to his interests that the charge should become extinguished. Had the land at that time been sold at sheriff’s sale, as his property, his interest in the dower fund would have passed with the title to the land, and a like result would have ensued had he executed a voluntary conveyance without a special agreement to the contrary: Stecker v. Shimer, 5 Wharton, 452; Williams v. White, 35 Pa. 514. Merger is, however, largely a question of intention, and where there is no intention, actual or presumed, of the person in whom a charge upon land and the title to the land are both vested, that there shall be a merger, equity will not hold the charge as extinguished: Carrow v. Headley, 155 Pa. 96. The allottee of land thus subject to a charge for dower may convey the land subject to the payment of the principal of the entire dower fund, when it becomes due, reserving to himself the right to receive his proportionate share of such fund, the intention so to do being indicated in a proper manner. He may make this reservation by suitable covenants in the deed by which he conveys the land, and a subsequent sheriff’s sale of the land, as the property of the grantee or his successors in title, will not divest his share of such interest or charge: Kline v. Bowman, 19 Pa. 24; Updegrove v. Updegrove, 1 Pa. 136; Erb v. Huston, 18 Pa. 369. An orphans’ court sale for the payment of the debts of the allottee, which is made expressly subject to the dower charge, stating the entire amount of the principal, the interest to be paid to the widow during her life and the principal sum, in numero, at her death, “to the heirs and legal representatives” of her deceased husband, has been held not to pass to the purchaser, with the land, the interest of the allottee in the dower fund charged thereon: Dech v. Gluck, 47 Pa. 403. The vital question in this case is whether the interest of Alfred Vance in the principal of this dower fund was merged in the title to the land which he by deed conveyed to Louis Krepps. That question is directly ruled by the case of Shelly v. Shelly, 8 W. & S. 153. The facts in that case were precisely similar to those with which we are here dealing. Lands had in partition proceedings been allotted to Abraham Shelly, charged with a dower fund, a portion of the principal of which he would have been entitled to receive on the death of the widow, had the land not been allotted to him; he afterwards conveyed the property to Stauffer, by deed giving a clear title in fee simple upon its face; and thereupon Stauffer executed a bond, conditioned that, among other things, he pay to Abraham Shelly the amount of his interest in this dower principal after the death of the widow. Stauffer some years afterward conveyed the land to Henry Shelly "subject to the payment of the sum of $33.80 to Ann Yeakle, the widow of David Yealde, deceased, .... each and every year during her natural life, .... and also subject to the payment of the sum of $563.33 at the decease of the said Ann, to the heirs of the said David Yeakle, deceased, or their legal representatives, as the principal sum of fund of the aforesaid annual dower.” The widow of David Yeakle died seventeen years later and Abraham Shelly brought an action of assumpsit against Henry Shelly, who was then the owner of the land, to recover his share of the principal of the dower charge. The Supreme Court held that the giving of the bond by Stauffer to pay to his grantor his proportion of the dower principal prevented a merger, that Abraham Shelly retained his interest in this fund, that the land continued subject to the charge, and that a recovery might be had in an action of assumpsit, the judgment being entered de terris. We are unable to discover any reason why that decision does not distinctly rule the question whether Vance retained his interest in the principal sum of the dower, charged upon the land which he conveyed to Krepps. Krepps took the land subject to the charge, and when the widow died, Vance or his assigns became entitled to receive his share of the fund out of that land.

The assignment by Vance to plaintiff’s intestate of his interest in this bond operated as an absolute assignment of his interest in the dower fund, and she became entitled to payment of that share upon the death of the widow: Grove’s App., 103 Pa. 562. Judgment was promptly entered on this bond and it became notice to all who dealt with Krepps .or his estate. This judgment was a lien upon the land at the time Krepps died and until it was sold by order of the orphans’ court for payment of his debts: Baxter v. Allen, 77 Pa. 468; Colenburg v. Ventner, 173 Pa. 113. This judgment indicated upon its face that it represented the principal sum charged upon the land to secure the dower interest of the widow of David Forsythe, deceased, which was of indéterminate value and intended to run with the land during the life of the widow; it was such a lien as would not ordinarily be divested by a judicial sale: Heist v. Baker, 49 Pa. 9; Tospon v. Sipe, 116 Pa. 588; Levengood’s Est., 38 Pa. Superior Ct. 491. The orphans’ court, in decreeing the sale of the land for the payment of the debts of Krepps, recognized the character of this lien and ordered that the land be sold “subject to the payment of interest annually on $716.10 to Rachael Forsythe during her lifetime, and at her death the said principal sum to be paid to the heirs of said widow.” There was, it is true, a blunder in this order, in that the Christian name of the widow was not properly given, and in the specification that the principal sum was to be paid to “the heirs of said widow.” But the important part was that this dower charge was identified to the amount of a cent. This was sufficient to indicate the widow for whose protection the charge was created, and that it gave the purchaser at the sale, Samuel Flack, all the necessary information to find out who the widow was and where the charge originated is clearly demonstrated by the fact that he paid the charge annually to Rebecca Forsythe, and when he came to sell the property he referred to her as Rebecca Forsythe, the widow of David Forsythe. It was the duty of the purchaser at the orphans’ court sale to take notice of the action of partition which was directly in the line of the title and that showed that the interest on this dower charge was annually payable to Rebecca Forsythe and that the principal, at her death, was payable to the heirs of David Forsythe, or those legally entitled. The purchaser was also bound to take notice of the record of the liens upon the land of Krepps, and the bond held by Vance .upon which judgment had been entered, which was then a lien, plainly, revealed the fact that the interest of Vance in the principal of this dower fund had been retained by Vance and had not merged in the title which passed to Krepps. Flack had notice, therefore, that the land which he bought passed subject to the payment of the entire principal sum of the dower fund, upon the death of the widow, to plaintiff’s intestate and to the Armstrong children, in proportion to their respective interests. The fact that the order of the orphans’ court, directing the sale, referred to the principal of this dower fund as payable to the heirs of Rachael Forsythe did not matter. The dower was for the widow’s third, and by the express mandate of the law the principal was, upon the death of the widow, to be paid to the children of her deceased husband, or “the parties legally entitled to receive it,” and it was the duty of the purchaser to ascertain who were the parties entitled: Erb v. Huston, 18 Pa. 369; Bailey v. Com., 41 Pa. 473. It is not doing violence to this order of the orphans’ court, to hold that the words, “to be paid to the heirs of said widow,” are to be taken as meaning to be paid to those legally entitled to receive it. There can be no doubt that Samuel Flack had notice that he took the land subject to the payment of this entire charge and that, under the provisions of the order of the orphans’ court, he retained in his own hands the sum of $716.10 as a part of the purchase money for the land to which he acquired title. All those who subsequently acquired title to this land had express notice, by the deeds directly in the line of the title that they took the land subject to the payment of the entire dower charge, the interest to be paid to the widow, and the principal to be paid to the heirs of David Forsythe and those who had lawfully succeeded to their title. When Flack conveyed to Williams he incorporated in his deed a covenant which obviated any necessity for the production of evidence that subsequent purchasers had any other or further notice that they took title to the land charged for the payment of the entire amount of the dower fund, both interest and principal. That covenant has been above quoted in full, and by it this charge is clearly identified. That covenant required the grantee to pay the entire principal of this fund, and expressly provided that in case Flack by his purchase had acquired any interest in the principal sum of this fund such interest should not pass to his grantee, but should remain in him, Samuel S. Flack.

Plaintiff’s intestate was entitled to receive, upon the death of the widow, six-sevenths of the principal of this dower, and the lands in the hands of Charles Danielson were charged for the payment of the same. The statute which made this fund payable to the heirs of the decedent, or those who had acquired their interest, did not provide a remedy for the recovery thereof from an alienee of the allottee. The question which originally arose was, how could this right against the property of one who was not personally liable, for the payment of the claim, be enforced. It was conceded that no action at law could be maintained in any country where there was a court of chancery. The Supreme Court solved the problem by permitting a recovery by the claimant in an action of assumpsit against the holder of the land, the judgment to be entered de terris: Pidcock v. Bye, 3 Rawle, 183. This decision has been followed in numerous cases, among which are Shelly v. Shelly, 8 W. & S. 153; Dech v. Gluck, 47 Pa. 403, and DeHaven v. Bartholomew, 57 Pa. 126. This involved no imposition of a personal liability upon the owner of the land at the time the incumbrance became payable.

The learned judge of the court below was of opinion that the plaintiff could not maintain this action because of the provisions of the Act of June 12, 1878, P. L. 205, entitled “An act to define the liability of grantees of real estate for the incumbrances thereon.” The first section of that act provides that a grantee of land subject to ground rent, mortgage or other incumbrance, shall not be personally liable for the payment of such ground rent, mortgage or other incumbrance, unless he shall, by an agreement in writing have expressly assumed a personal responsibility, or there shall be express words in the deed of conveyance stating that the grant is made on the condition of the grantee assuming personal liability. The second section of the act provides that the right to enforce such personal liability, that is in case the grantee has become personally bound to the grantor by an agreement in writing or the covenants of his deed, shall not inure to any person other than the person with whom such an agreement is made. It must be accepted as settled that an incumbrancer who is a stranger to the deed cannot maintain against a grantee an action to enforce a personal liability for the payment of an incumbrance upon the land, by basing his cause of action upon a covenant in a deed to which he is not a party. The mortgagee or other incumbrancer cannot, in his own name, maintain an action against the grantee, nor can he maintain an action in the name of the grantor to his use, to enforce such personal liability without the consent of the grantor: Fisler v. Reach, 202 Pa. 74; May’s Est., 218 Pa. 64. But in the cases above cited, in which the judgment was entered de terris, no personal liability was imposed upon the-holder of the land. Such a judgment cannot be enforced against any property of the defendant in the action except the land which was charged for the lien. The act of 1878 was intended to relieve the grantee of land from personal liability for the incumbrances thereon; it was not intended to relieve the land from any lien thereon, nor to take away from the holder of the lien any right which he then possessed to enforce it against the land. Judgment may be entered against a defendant in an action of assumpsit, without imposing upon him a personal liability, by strictly limiting in the judgment the property upon which it or any revival thereof, or any execution issued thereon, shall be a lien: Neale v. Dempster, 184 Pa. 482. The executors of the will of Charles Danielson were properly made parties to this action after he had died, whether other parties should have been added it is not necessary to determine, as no plea in abatement was filed: Mathews v. Stephenson, 6 Pa. 496. The statement filed by plaintiff properly referred to the deeds describing the land upon which this charge is a lien, and there can be no difficulty in entering a judgment which will safeguard all the interests of the defendant and secure him the protection afforded by the act of 1878. We are of opinion that judgment should be so entered.

The judgment is reversed and the record is remitted to the court below with direction to enter judgment in favor of the plaintiff, limiting the lien of such judgment and any execution issued thereon to the land upon which the claim of the appellant is a lien, with proper descrip-' tion thereof.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Alms v. Indiana County, Appellant.

      Game laws—Deputy game protectors—Compensation—Constables— Acts of March 22, 1889, P. L. 17 and April 11, 1908, P. L. 168.

    1. Deputy game protectors appointed under the provisions of the Act of April 11,1903, P. L. 163, are not entitled to the reward of $10.00 payable to constables under the Act of March 22, 1899, P. L. 17, for securing a conviction for violation of the game laws.
    2. If the Act of April 11, 1903, P. L. 163, should be construed as giving deputy game protectors the right to demand compensation from counties, the act would be unconstitutional, inasmuch as there is nothing in its title to indicate that counties theretofore exempt from paying anything to game protectors, were made liable for their compensation.
    Argued May 3, 1910.
    Appeal, No. 179, April T., 1910, by defendant from order of C. P. Indiana Co., March T., 1910, No. 175, granting writ of mandamus in case of H. H. Alms v. Indiana County.
    Before Rice, P. J., Hendebson, Mobeison, Oelady, Head, Beavee and Pobteb, JJ.
    Reversed.
    Petition for writ of mandamus. Before Telfoed, P. J.

      The facts are stated in the opinion of the Superior Court.

      Error assigned was order granting the writ.

      Ernest Stewart, with him D. H. Tomb, for appellant.—
    The Act of April 11, 1903, P. L. 163, is unconstitutional: Dorsey’s App., 72 Pa. 192; Beckert v. Allegheny, 85 Pa. 191; Quinn v. Cumberland County, 162 Pa. 55; Stegmaier v. Jones, 203 Pa. 470 Dailey v. Potter County, 203 Pa. 593; Bennett v. Sullivan County, 29 Pa. Superior Ct. 120; Hays v. Cumberland County, 5 Pa. Superior Ct. 159.
    No printed brief for appellee.
    March 3, 1911:
   Opinion by

Porter, J.,

The appellee presented to the court below a petition setting forth that he was a duly appointed and commissioned “Deputy Game Protector” for the commonwealth, under the provisions of the Act of April 11, 1903, P. L. 163, entitled, “An act to provide for the appointment of deputy game protectors, for the Commonwealth of Pennsylvania, and defining their duties;” that said act provides that deputy game protectors, appointed under its provisions, shall “receive the same compensation that constables now receive for similar services;” that the Act of March 22, 1899, P. L. 17, provides that “Any constable or warden, upon the arrest and prosecution of any offender to conviction, under the provisions of this act, shall, in addition to the fees to which he' may be entitled under existing laws, be paid for his services the sum of ten dollars on a warrant to be drawn by the county commissioners on the county treasurer, one-half of which shall be paid out of the county treasury of the respective county, and the remaining half of said reward shall be paid by the state treasury into the county treasury &c.;” and that he, the appellee, as deputy game protector, had, in separate proceedings, arrested and prosecuted to conviction, before a justice of the peace of the county of Indiana, three persons, stating their names, the nature of the proceedings and the magistrate before whom the prosecutions were held, “for violating the game law of May 1st, 1909, P. L. 325.” The petition further stated that, by force of the legislation above recited, the relator had become entitled to receive from the county of Indiana the sum of $30.00, for which sum he had demanded from the commissioners of the county a warrant upon the county treasurer and that the commissioners had declined to pay said claim and refused to deliver to the petitioner a warrant for the same upon the county treasurer. The prayer was for a mandamus upon the commissioners of the county to deliver a warrant for the amount stated to the relator. The court below granted a rule upon the county commissioners who filed an answer denying liability for the claim, under the legislation referred to, and upon the further ground that the relator was indebted to the county in the sum of $26.99 for costs in a case in the court of quarter sessions of Indiana county, in which the grand jury had ignored the indictment and found that the costs should be paid by the prosecutor, this relator. The appellee demurred to this answer and the court thereupon issued a peremptory mandamus requiring the county commissioners to draw and deliver to the relator a warrant upon the county treasurer for the sum of $30.00. The county appeals from this decree.

The authorities representing the county contend that .the Act of April 11,1903, P. L. 163, does not impose upon counties the duty to pay to deputy game protectors a reward of $10.00 for each case in which such deputy may succeed in securing a conviction for violation of the game laws, and that if the body of the act can be so construed as to require such payment by the county, then the act is to that extent unconstitutional, for the reason that its title failed to give any indication that the statute contained such a provision. The statute is entitled, “An act to provide for the appointment of deputy game protectors, for the Commonwealth of Pennsylvania, and defining their duties.” The act contains but one section, the material provisions of which are as follows: “That the Board of Game Commissioners shall have the power and authority to appoint one or more competent men for each and every county of the Commonwealth of Pennsylvania to be called and designated as a Deputy Game Protector, who shall have the same power and perform the same duties as the present game protectors, authorized by law, now have and perform and receive the same compensation that constables now receive for similar services.” The office of deputy game protector was a new one, created by this statute, which declares that they shall have the same power and perform the same duties as the present game protectors. The game protectors were at that time and still continue to be employees of the state; the powers and duties of the new officers thus created, deputy game protectors, were, therefore, those of employees of the state. The title of the act as well as the substance of the legislation render it impossible to classify these officers as anything but employees of the state. And they are to be appointed by a board of commissioners who are administrative officers of the commonwealth. The office of game protector had been created by the Act of June 25, 1895, P. L. 273, which provided for their appointment by the board of game commissioners, defined their powers and duties, and, in its fourth section, explicitly provided “That no commissioner, protector or other officer authorized by this act shall claim or receive any compensation for his services or for expenses incurred in the discharge of his duties.” The third section of the same statute enacted that the “protectors” should receive, “for the use of the said board,” one-half of all the fines and penalties collected in actions brought upon informations furnished by them. Thus it appears that even as to the one-half of the fines and penalties to which the informer was entitled, under various statutes, the game protectors received it for the use of the board of game commissioners, and not for themselves personally. The game protectors were given extensive powers, but there were no revenues attached. This was the condition of affairs until changed by the Act of May 21, 1901, P. L. 266, which in its fifth section enacted, “That the game protectors, so appointed, shall receive salary or pay per day, as may be agreed upon by the Game Commission, with expenses not to exceed two dollars per day outside of the traveling expenses; said expense account to be itemized and presented under oath.” This statute again provided that all money coming to any game protector as his part of any fine or penalty, under existing law, wherein he is the prosecutor, shall belong to the game commission. This statute provided for compensation, by a fixed salary or a rate per day agreed upon, and it was to be paid by the state. The counties never had been in any manner liable to pay these game protectors for their services, unless that liability arose as incidental to some service performed in legal proceedings, for which the county was made liable under some other statute. The protectors were authorized to execute warrants, and search warrants and to serve subpoenas, they may have been entitled to the fees allowed by law for such services, and in some criminal proceedings the counties may have become liable to pay the costs. • The county could not be called upon to pay more than the legal fees for executing such writs, simply because they were executed by state employees. When, therefore, the statute of April 11,1903, was enacted the game protectors were not entitled to receive from counties any compensation or reward, the counties had nothing to do with their compensation, nor could the counties be required to pay them any reward for their efforts in securing the conviction of any offender. The maintanance of the game protectors imposed no special burden upon the county treasuries. The title of the act of April 11,1903, gave notice that its effect was “To provide for the appointment of deputy game protectors, for the Commonwealth of Pennsylvania, and defining their duties.” This title referred to a subject with which counties before that time had had nothing to do, there was nothing to even remotely indicate that the effect of the statute was to impose a burden upon the treasuries of the counties, and if it was the legislative intention to impose such a burden the title failed to express such intention and the act was to that extent unconstitutional: Quinn v. Cumberland County, 162 Pa. 55; Stagmaier v. Jones, 203 Pa. 47; Dailey v. Potter County, 203 Pa. 593; Bennett v. Sullivan County, 29 Pa. Superior Ct. 120. There is certainly ground for gravely doubting whether it was the legislative intention to enact that these deputy game protectors should be entitled to receive the special allowance provided for constables under the provisions of the Act of March 22, 1899, P. L. 17. The statute last referred to imposed upon a constable the performance of duties which had not before that time appertained to his office. It enacted that constables “shall be ex officio fire, game and fish wardens” and imposed upon them active duties in this new capacity, extended their jurisdiction, for these purposes, throughout the county; required them the first week of each term to make report to court of all violations of any provisions of law for the protection of forests and timber land, game and fish, and made the failure to discharge these duties a misdemeanor punishable by fine and imprisonment. The title of this statute is “An act making constables of townships and boroughs ex officio fire, game and fish wardens, prescribing their powers and duties, fixing their fees as wardens, and prescribing their punishment for failure to perform their duties.” The only compensation provided for the performance of these duties by this statute is in the fourth section, viz.: “Any constable or warden, upon the arrest and prosecution of an offender to conviction under the provisions of this act, shall, in addition to the fees to which he may be entitled under existing laws, be paid for his services the sum of ten dollars on a warrant drawn by the county commissioners on the county treasurer &c.” The services which are by this statute provided' for are for the services which the constables perform “as wardens,” and the only cases in which they are entitled to the payment of this sum of $10.00 are those which they prosecute “to conviction under the provisions of this act.” A deputy game protector is authorized to do many things which a constable may do, such as the execution of a warrant or the serving of a subpoena, and for such services he may be entitled to the same legal fees allowed a constable. But he is not required to perform the same duties imposed upon a constable by the Act of March 22, 1899, nor is he liable to indictment because of his failure to perform such duties, nor can he recover the compensation to which a constable may become entitled when proceeding under that statute.

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


text:
    Lowry, Appellant, v. Letzelter.

      Execution—Levy—Appraisement—Valuation—Appointment of appraisers—Sheriff’s interpleader.

    1. In sec. 6 of tbe Act of May 26, 1897, P. L. 95, wbicb reads “the value of the goods and chattels claimed shall be determined by appraisers appointed by the sheriff subject to the approval thereof by the court,” the word “thereof” refers to the valuation of the goods as determined by the appraisers, and not to the mere appointment of the appraisers.
    2. Where a party has acquiesced in the valuation of the goods made by the appraisers, and has given the bond required by the statute in double the amount of that valuation, he cannot subsequently object to the admission of the appraisement in evidence because “the appointment of the appraisers was not made according to law.”
    3. On the trial of a sheriff’s interpleader where the claimant has filed a bond and taken the property, and is the plaintiff in the issue, the jury, if they find in favor of the defendant, are bound also to determine by their verdict the value of the property, and if the court neglects to charge them to that effect, and a mere verdict for the defendant, without more, is rendered, a judgment on such verdict will be reversed.
    Argued May 4, 1910.
    Appeal, No. 167, April T., 1910, by plaintiff, from judgment of C. P. Somerset Co., May Term, 1909, No. 398, on verdict for defendant in case of J. C. Lowry v. M. Letzelter.
    Before Rice, P. J., Henderson, Morrison, Orlady Head, Beaver and Porter, JJ.
    Reversed.
    Sheriff’s interpleader to determine ownership of goods taken in execution. Before Kooser, P. J.
    At the trial the court admitted under objection and exception the appraisement made by the appraisers summoned by the sheriff. [1]
    The court charged in part as follows:
    [If you find that it was not a fair" sale, a bona fide sale, you would then return your verdict in favor of the defendant. But if you find the sale itself at its inception, October 13, was fair and bona fide, then come down to the later question and determine whether such possession was taken as is required by the law; and even if the sale was fair, if you find the possession taken was not such as the law requires, even then your verdict would be for the defendant.] [2]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) rulings on evidence as above, quoting the bill of exceptions, and (2) portion of charge, quoting it.

      J. A. Berkey, with him J. C. Lowry and C. L. Shaver, for appellant,
    cited as to the form of the verdict: Mann v. Salsberg, 17 Pa. Superior Ct. 280.

      C. W. Walker, with him Fred W. Biesecker, for appellee.
    March 3, 1911:
   Opinion by

Porter, J.,

Letzelter obtained a judgment against one William Parson and under an execution upon that judgment a levy was made upon certain personal property; whereupon, Lowry notified the sheriff that he claimed the property. The sheriff, for his own protection, obtained a rule for an interpleader, under the provisions of the Act of May 26, 1897, P. L. 95, and the matter was so proceeded in that an issue was framed in which Lowry, the claimant, was plaintiff and Letzelter, the execution creditor, was defendant, to determine the question of ownership. The property was valued and appraised, by appraisers appointed by the sheriff, at the sum of $1,071. Lowry gave a bond, with surety, in double the amount of the value of the goods as thus appraised, which was duly approved by the court, and the sheriff thereupon delivered to him the property. The trial of the issue resulted in a verdict and judgment in favor of the defendant, the execution creditor, and the claimant appeals.

The first specification of error refers to the admission in evidence of the appraisement, made by appraisers appointed by the sheriff, and filed in the case. The admission of this appraisement in evidence was objected to by the appellant, who thus stated his ground of objection, “for the reason that the appointment of the appraisers was not made according to law.” This was the only ground upon which the objection was based, if there were other grounds of objection they ought to have been stated in the court below. The appellant must stand by the record which he has made. The appraisers had been appointed by the sheriff, and the statute expressly conferred upon that officer the power to make the appointment; “Section 6. The value of the goods and chattels claimed shall be determined by appraisers appointed by the sheriff, subject to the approval thereof by the court.” The word “thereof ” in this section refers to the valuation of the goods as determined by the appraisers, and not to the mere appointment of the appraisers. The thing which is made subject to approval by the court is not the naming of the appraisers but the result of their work. This section of the statute does not expressly require that the appraisement must be approved by the court, before it shall become effective to determine the value of the goods. The language is not that the value of the goods shall be determined by the appraisers, “when approved by the court,” the words are “subject to the approval thereof by the court.” The word “subject,” as used in this section of the statute, has the same meaning which must be given it in the tenth section of the act which, referring to the final judgment on the verdict in these cases, says: “and the judgment recovered shall be subject to appeal to the Supreme Court or Superior Court as in other cases.” The construction which must be given to the sixth section is that the action of the appraisers in determining the value of the goods shall be subject to review and supervision by the court. If any of the parties have valid ground for objecting to the valuation made by the appraisers they have the right to file exceptions, and upon the hearing of those exceptions the court undoubtedly has power to set aside the appraisement, upon a showing which warrants such an order. This appellant had acquiesced in the valuation of the goods made by the appraisers and had given the bond, required by the statute, in double the amount of that valuation, which bond was approved by the court. This constituted a waiver of any objection which he might have urged against the appraisement. The eighth section of the statute makes the appraised value of the goods, thus ascertained, prima facie evidence of the real value. This specification of error is without merit.

The language of the court in that part of the charge which is the subject of the second specification of error embraces all that the learned judge said to the jury as to the form of their verdict, in case they found that the plaintiff, this appellant, had not, prior to the execution, acquired title to the property, as against the creditors of the defendant in the execution. The jury were thus instructed that in case they found against the claimant they should return “a verdict in favor of the defendant.” The language of the court was perfectly proper, as far as it went, but it did not go far enough. The goods in controversy in this case had been taken by the claimant, this appellant, and the thirteenth section of the statute requires that, in such a case, the jury shall determine by their verdict the value of the property. The jury should have been instructed as to their duty in this regard; the failure to give this instruction left the charge inadequate, and the result was that the jury literally followed the instruction of the court, found “a verdict in favor of the defendant” without more, which was defective in substance: Mann v. Salsberg, 17 Pa. Superior Ct. 280. The execution creditor, who becomes the defendant in the interpleader proceeding, already has liquidated his claim against the execution defendant, but the claimant who takes the goods levied upon does not by such taking becom'e responsible to pay the entire debt of the original execution defendant; the liability of the claimant, who thus takes the goods, must be determined in the interpleader proceeding, and the limit of the amount which he can be called upon to pay is the value of the goods as determined in that proceeding. The third section of the statute provides that the bond given by the claimant shall inure to the benefit, not only of the plaintiff in the execution, but that of any other person who may be adjudged to have a right or title to said goods or chattels. The failure of the learned judge of the court below to instruct the jury as to their duty to determine the value of the property in question was an error which resulted in a verdict and judgment not such as contemplated by law, in this proceeding. The second specification of error is sustained.

The judgment is reversed and a venire facias de novo awarded.


author: Beavee, J.,

text:
    Jones, Appellant, v. Aronson.

      Equity—Specific performance—Agents—Beal estate agents—Counsel fee and expense—Punitive damages.

    1. Where real estate agents secretly purchase real estate of their client, and take title in the name of a clerk in their employ for their own benefit, and the principal on the discovery of the transaction refuses to accept certain mortgages offered in partial payment of the purchase money because they were not of their face value, and the agents then offer to reconvey if the mortgages are returned, the client is justified in refusing the offer and may maintain a bill for specific performance, and therein recover reasonable compensation for counsel fee and expenses, if evidence to support such claim is offered; but the client in such a proceeding will not be entitled to recover punitive damages.
    Appeals—Assignments of error—More than one point—Printing testimony—Decree.

    2. Assignments of error which embrace more than one point will not be considered.
    3. Assignments of error in an equity case, which refer to questions of fact will not be considered where the appellant fails to print the testimony.
    4. An assignment of error to the refusal of the court to grant a motion for the taking of new evidence, and for an additional hearing in an equity case, will not be considered where the evidence is not printed.
    5. An assignment of error to the effect that the court “erred in striking from draft of final decree submitted under equity rule 84, the express saving of plaintiff’s right to bring an action of deceit at law,” will not be considered where it appears that the final decree as presented was not printed, and that that which was signed by the court and printed by the appellant as the final decree, showed no erasures or omissions.
    Argued May 5, 1910.
    Appeal, No. 192, April T., 1910, by plaintiff, from decree of C. P. No. 1, Allegheny Co., March T., ■ 1909, No. 486, on bill in equity in case of Kate Jones, Executrix of the last will of Mary McGann, deceased, v. I. Leonard Aronson et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beayer and Porter, JJ.
    Affirmed.
    Bill in equity for specific performance. Before Ford, J.

      The facts are stated in the opinion of the Superior Court.
    The court awarded specific performance.

      Errors assigned were the various rulings mentioned in the opinion of the Superior Court.

      William Macrum, for appellant.

      L. K. Porter, for appellee, filed no printed brief.
    March 1, 1911:
   Opinion by

Beavee, J.,

The plaintiff, appellant, is the executor of the last will and testament of Mary McCann, deceased. By the terms of the will she was directed to sell two certain lots of ground belonging to the testatrix. She consulted and sought the services of the defendants, as real estate agents, one of the defendants, Cross, being the clerk of the Aron-son Realty Company, which was composed of the other defendants. She fixed the value of the real estate which she intrusted to the defendants for sale at $1,600, and requested them to sell the same at that price. Cross, the employee of the other defendants, inquired whether or not she would accept $1,500, to which she assented. It was then reported to her that they had effected the sale to one, B. Creighton, who, although that fact was not disclosed to the plaintiff, was a stenographer in the defendants’ office and was simply used by them to take title in her name for their benefit. As part payment of the purchase money, the defendants delivered to the plaintiff two several mortgages of $600 each, which upon examination were found to be a security which could not be sold for their face value, and the court finds, as a matter of fact, that they were not worth their face value. The plaintiff finally employed counsel with whom, upon demand made, defendants agreed to reconvey the property upon return to them of the mortgages which had been given to the plaintiff, which was refused. Thereupon the present bill in equity was filed, praying for specific performance of .the contract and other relief.

The court below, upon the trial, found the facts as practically alleged in the bill and decreed specific performance under a statement of the amount, based upon the purchase money at $1,500, and the sums expended by the defendants in the payment of taxes and liens for municipal improvements theretofore made, and awarding a balance of $1,114.36 to the plaintiff. The court declined to find as a fact that the plaintiff was entitled to the sum of $300 claimed by her for counsel fees and $50.00 for time and expenses in conducting the suit against the defendants, first, on the ground that the suit was not a necessity, in view of the fact that the defendants were willing to re-convey the property and place the plaintiff in statu quo without suit or expense, and, secondly, that there was no evidence upon which such findings could be based. The court also declined to find that, either in fact or law, the plaintiff was entitled to punitive damages, because of the fraud admittedly practised by the defendants upon her.

Under the facts, as found by the court, based upon the testimony heard by the trial judge, we are of opinion that to be restored to the status quo prior to the plaintiff’s negotiations with the defendants the plaintiff was entitled to a reasonable compensation for counsel fees and time and expenses, but, in the absence of testimony as to what these several items were reasonably worth, we fail to see how the court could have fixed an amount which would compensate the plaintiff therefor, nor is it apparent to us that in equity, seeking specific performance, the plaintiff could consistently claim punitive damages, because of the fraud practised upon her by the defendants. The defendants were undoubtedly bound to deal with the plaintiff uberrima fide and were, therefore, it seems to us, bound to make good to the plaintiff what she had reasonably expended in counsel fees and had lost in time and effort in securing the rights of her testatrix, and we would be glad to modify the decree of the court below in this respect, if we were able to find in the evidence what these several amounts actually were, or reasonably should be; but, in the absence of such evidence, we have nothing before us upon which to base such a modification.

We are, therefore, compelled to overrule the third assignment of error, which is also fatally defective for the reason that it violates our rule XIV, which requires that “Each, error relied on must be assigned particularly and by itself. If any assignment embrace more than one point, or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged.” There are three distinct questions or points contained in this assignment: first, the loss of $100 difference between the price she, plaintiff, was prevailed on to accept and the price they, defendants, fraudulently contrived not to ask; second, the counsel fees which the court was asked to fix at $300; and third, the personal expenses and time wasted by the plaintiff, which the court was asked to fix at $50.00.

As appears from the docket entries, the case was regularly set for trial upon the equity list. Whether or not testimony was taken does not distinctly appear, but it is to be inferred from the remarks of the trial judge in the findings of fact and his conclusions of law, and also from the argument of the appellant, that testimony was taken. If so, it is not printed in the appellant’s paper-book, and we are left only the bill, the answer, the interrogatories of the plaintiff propounded to the defendants and their answer thereto.

Inasmuch as the specifications of error refer to questions of fact, particularly the first, second, fourth, fifth and sixth assignments, it is practically impossible for us to determine whether or not the findings of the court and its conclusions of law were based upon sufficient evidence, and we must assume that they are correct as to fact; and, if so, we think they warranted the conclusions reached by the court.

The refusal of the court to grant the motion for the taking of new evidence and the additional hearing prayed for, as specified in the fifth and sixth assignments, was largely within the discretion of the court, and we are not able to determine, without the evidence, whether or not this discretion was fairly exercised.

As to the seventh assignment, which is: “The court, having omitted to decree any damages, erred in striking from draft of final decree submitted under equity rule 84 the express saving of plaintiff’s right tp bring an action of deceit at law.” We have no standard by which to try the question of fact herein stated. The final decree, as presented, is not printed, and that which is signed by the court and printed by the appellant as the final decree shows no erasures or omissions. It is, therefore, impossible for us to determine whether or not the complaint of the so-called omission is well founded.

On the whole case, as presented, we fail to find any reversible error, and, if the court failed in any degree to afford all the equitable relief prayed for in the bill, and allowable, if the prayers had been fully sustained by the facts, that failure is fully accounted for by the fact that no evidence upon which findings of fact and conclusions of law could be based, so far as appears in the appellant’s paper-book, was presented.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Beaver, J.,

text:
    Truby, Appellant, v. Steele.

      Decedents’ estates—Real estate—Lien—Sale for expenses of administration.

    1. The orphans’ court has jurisdiction to decree the sale of the real estate of a decedent to pay the expenses of the administration of his estate, and such sale may be decreed after the expiration of the lien of the decedent’s debts.
    2. A sale of a decedent’s real estate for the payment of the expenses of administration will be sustained where the petition of the administrator avers generally that the personal estate was insufficient to pay debts and that a sale was necessary, and the records of the orphans’ court show that an account was filed by the administrator exhibiting a balance due from the estate to himself.
    Argued May 9, 1910.
    Appeal, No. 164, April T., 1909, by plaintiff, from judgment of C. P. Armstrong Co., Sept. Term, 1906, No. 89, for defendant non obstante veredicto in case of Margaret W. Truby v. Hiram S. Steele.
    Before Rige, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Ejectment for land in Apollo borough. Before Patton, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      M. F. Leason, and C. E. Harrington, for appellant.
    The court had no jurisdiction: McCurdy’s App., 5 W. & S. 397; Crawford’s Est., 221 Pa. 131; Bentley’s Est., 196 Pa. 497; Emerick’s Est., 172 Pa. 191.

      J. W. King, for appellee.
    March 1, 1911:
   Opinion by

Beaver, J.,

It was held in Cobaugh’s Appeal, 24 Pa. 143, that “The law limiting the lien of a decedent’s debts does not apply to the compensation earned by and allowed to the executor or administrator. That compensation is not a debt of the decedent, but a part of the expenses of administration. The right to it may accrue after the seven years have expired. The whole scope and spirit of the act show that it was intended to prevent heirs and purchasers from being surprised by claims against the decedent himself, not placed on record in proper time. An executor may retain his commissions out of the personal fund, and let the unpaid creditors look to the land. But if he chooses to exhaust the personal fund by paying the debts, and trust the real estate for his own compensation, he puts the heirs in no worse condition. This sale was, therefore, rightly ordered.” See also Demmy’s Appeal, 43 Pa. 155.

So in Reynold’s Estate, 195 Pa. 225, decided since the act limiting the lien of a decedent’s debts to two years (Act of June 8,1893, P. L. 392, as amended by the Act of June 14, 1901, P. L. 562), it was held that “The orphans’ court has jurisdiction to decree the sale of the real estate of a decedent to pay the expenses of the administration of his estate. Such expenses are not debts of the decedent, and the law limiting the lien of his debts does not apply to them, and a sale for their payment may be decreed after the expiration of the lien of the debts of a decedent.”

These well settled cases are conclusive of the main question involved in the case under consideration.

The action was one of ejectment brought by the plaintiff, who was the granddaughter of Margaret Young, for the recovery of the undivided fifth part of a lot sold by John C. Young, the administrator of the grandmother’s estate, upon a petition presented to the orphans’ court, which was allowed and the sale decreed. It is now claimed that the court had no jurisdiction to decree the sale, the petition containing no jurisdictional facts upon which the decree could be based, and, upon the trial of the case, the court reserved the question, directing a verdict to be entered for the plaintiff. Upon a motion for judgment, non obstante veredicto, judgment was finally entered for the defendant, and the case is here upon appeal from that judgment.

The plaintiff’s argument seems to regard Crawford’s Estate, 221 Pa. 131, as ruling this case, but that refers, as is clearly shown by the opinion of Mr. Justice Brown, to a sale under the Act of April 18, 1853, P. L. 503, and we expressly ruled in Kiskaddon v. Dodds, 21 Pa. Superior Ct. 351, that the Price act of 1853 does not apply to a case where a petition is filed in the orphans’ court by an executor or administrator for an order of sale for the payment of debts, -referring to Spencer v. Jennings, 114 Pa. 618. In the same case, we decided that the Act of April 4, 1901, P. L. 66, was constitutional and was proper as validating private sales of decedent’s real estate made by executors or administrators for the payment of debts. As is shown in the opinion of the court below, this sale was made under the provisions of placitum 2 of sec. 31 of the Act of March 29, 1832, P. L. 190, which is as follows: “The orphans’ court which possesses jurisdiction of the accounts of an executor, administrator or guardian shall have power to authorize a sale or mortgage of real estate by such executor, administrator or guardian in the following cases, namely: .... II. On the application of such executor or administrator, or of any person interested, setting forth, that on the final settlement of the administration account, it appears that there are not sufficient personal assets to pay the balance appearing to be due from the estate of such decedent, either to the accountant or others.”

In the original petition for the sale, it is set forth: “That the personal estate of said decedent is insufficient to pay the just debts of the decedent, and that it is requisite to sell said lots to pay said debts. That the petitioner has annexed a true and perfect inventory and appraisement of the personal estate of said decedent, and a correct statement of the real estate of said decedent, as far as known to him, and of the debts of said decedent which came to your petitioner’s knowledge.”

These facts gave the court jurisdiction originally, but it is alleged that the inventory and appraisement, etc., do not now appear. However that may be, it seems to us that, if the inventory and appraisement and the other papers necessary were exhibited to the court, it was all that was necessary to give the court jurisdiction, and the presumption is that the statements contained in the petition are true. However that may be, the subsequent order of March 7, 1886, based upon a reference to the original order and decree, which are recited in the petition and upon other facts which appear of record, including the filing of an account by the administrator, showing a balance due from the estate, would seem to have authorized the sale under the act hereinbefore recited.

The sale thus ordered, however, under which the property for which this ejectment was brought was sold, was a private sale (which prior to the Act of May 9,1889, P. L. 182, was unauthorized), and was apparently so made. This irregularity, however, is cured by the Act of April 4, 1901, P. L. 66: Kiskaddon v. Dodds, 21 Pa. Superior Ct. 351.

Taking the entire record of the orphans’ court, as it was in evidence at the trial, we are of opinion that the court below properly entered judgment non obstante veredicto for the defendant, as is clearly shown in its opinion.

Judgment affirmed.


text:
    Durbin, Appellant, v. Commonwealth ex rel.

      Appeals—Joint appeals—Several defendants.

    Where several individuals, who have been separately convicted in different actions before a justice of the peace for a violation of the Sunday laws, take a joint certiorari to the common pleas, and the latter court affirms the conviction in such form as to recognize the fact that individual judgments had been rendered in each case, the defendants cannot maintain a joint appeal to the Superior Court, and if such an appeal is taken it will be quashed.
    Argued May 10, 1910.
    Appeal, No. 185, April T., 1910, by plaintiffs, from order of C. P. Beaver Co., Dec. T., 1909, No. 96, affirming judgment of justice of the peace in case of E. A. Durbin, Isaac Watson, Robert Cairnes, Lawrence Strohm, John Carven and Louie Finley v. Commonwealth ex rel. Frank Mason.
    Before Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.

      Certiorari to judgment of justice of the peace. Before Holt, P. J.
    The opinion of the Superior Court states the case.

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

      Wm. A. McConnel, for appellants.
    There was no appearance nor printed brief filed for appellee.
    March 3, 1911:
   Opinion by

Beaver, J.,

This is a joint appeal by six persons who were summarily convicted by a justice of the peace in separate actions for “engaging in worldly employment on the Lord’s Day, commonly called Sunday.”

A joint certiorari on the part of thirteen defendants who had been severally convicted in separate actions by the justice of the peace was sued out. A consolidated return, embracing the record in each individual case, was sent up to the common pleas, and upon consideration the court made the following order, based upon an exhaustive discussion of the questions raised by the record brought before it by the certiorari: “Now, March 5, 1910, for the reasons above set forth, the judgment of the justice of the peace is affirmed as to the defendants, E. A. Durbin, Isaac Watson, Robert Cairnes, Lawrence Strohm, John Craven and Louie Finley, and as to the other defendants the judgment is reversed and they are hereby discharged; and it is further ordered that only such costs and witness fees be recovered as could by law have been taxed, if there had been but one judgment against the defendants named in this order.”

The fact of individual judgments having been separately rendered by the justice is here recognized, as is also apparent from the record sent up by him.

It is apparent from the terms of this omnibus order that the judgment of the justice in the individual cases of the parties named in this court as appellants was intended to be enforced separately against each of such original defendants. The interest of the several appellants in this order was personal and individual, not joint. We are unable to see, therefore, how a joint appeal can he.

We do not discuss, much less determine, whether or not the several actions pending before the justice could be regularly brought before the court by an omnibus writ of certiorari. That question is not raised and, therefore, need not be discussed.

We are clearly of the opinion, however, for the reasons stated that the joint appeal to this court cannot be sustained. It may be said that the appeal was at least good as to one of the appellants, and this we are ready to concede, but the appellants were asked at the argument in this court to elect as to which of them the appeal should apply, but there was an unequivocal declination to make such election, the appellants preferring to rely on their appeal, as presented.

The question of a joint appeal by several appellants interested in the same decree has been frequently raised and the necessity for a separate appeal by each individual interested uniformly held: Com. v. Schollenberger, 17 Pa. Superior Ct. 218; May’s Est., 22 Pa. Superior Ct. 77; Samson’s Est., 22 Pa. Superior Ct. 93. The facts are not precisely similar to the case under consideration but all the authorities, so far as they have been examined, sustain the general proposition that each individual interested in a judgment or decree of a court, whether orphans’ court, common pleas or quarter sessions, must take a separate appeal; otherwise the appeal cannot be sustained.

This appeal is, therefore, quashed.


text:
    Miller, Appellant, v. Grandey.

      Road law—Dedication of street—Plan of lots—Boroughs—Consent of borough.

    1. Where a person lays out a plan of lots in a borough, and with the consent of the borough records the plan, which describes a street thereon as thirty feet wide, and thereafter the owner sells the entire plot to another, who makes a new plan wherein the street previously described as thirty feet wide, is reduced to an alley of the width of twelve feet as previously laid out and used, and this plan also with' the consent of the borough is recorded, and it appears that the street in question was never actually opened or laid out or in any way accepted as a public highway by the borough authorities, a grantee of the second owner of the plot who has purchased a lot abutting on the street has a right to consider the street as an alley of the width of twelve feet only; and a citizen of the borough suing merely as such and without any interest in any land in the plot has no standing to maintain a bill in equity to restrain the owner of the lot from building on the eighteen feet which by the first plot helped to make up the thirty feet wide street.
    2. The Act of May 24, 1901, P. L. 299, which is a supplement to the Act of April 3,1851, P. L. 320, did not change the power of boroughs to survey, lay out, enact and ordain roads, streets and alleys.
    Argued Oct. 3, 1910.
    Appeal, No. 196, April T., 1910, by plaintiff, from decree of C. P. Beaver Co., Sept. T., 1908, No. 13, dissolving preliminary injunction in case of John A. Miller v. Joseph H. Grandey.
    Before Rice, P. J., Henderson, Morrison, Orladt, Head, Beaver and Porter, JJ.
    Affirmed.
    Motion to dissolve preliminary injunction. Before Holt, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree dissolving preliminary injunction.

      Wm. A. McConnel, for appellant.
    A street may become a public highway where it has been dedicated by the private owner by a plan which has been duly accepted by the borough authorities, or where there has been a dedication by the private owner and a public user long enough to indicate an acceptance by the public: Murray v. Lace Mfg. Co., 10 Kulp, 566; Quicksall v. Philadelphia, 177 Pa. 301; Osterheldt v. Philadelphia, 195 Pa. 355; Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92.

      Lawrence M. Sebring, for appellee.
    The public has no right to a street designated as such upon the official map, until the street has been regularly declared open by ordinance, and the requirements of the law regülatjng the opening of streets has been complied with: Oberly v. Hapgood, 3 Lane. Law Rev. 234; s. c., 2 Lehigh Val. L. R. 258; Washington Female Seminary v. Washington Borough, 18 Pa. Superior Ct. 555; Chester v. Thurlow Land Co., 9 Del. Co. 51.
    March 3, 1911:
   Opinion by

Beaver, J.,

Cook, trustee of Frazier’s estate, subdivided by leave of court a tract of land abutting upon an alley in the borough of Rochester, known as Prospect alley, of the width of twelve feet. By adding in his plot or plan eighteen feet north of said alley, he described it in the plot as Prospect street, thirty feet wide. Inasmuch as, in order to secure the recording of such a plot or plan, it is necessary, under the provisions of sec. 12 of the Act of May 16, 1891, P. L. 75, that it shall be first approved by the town council, this was done in February, 1906, and the Cook plan, so-called, was recorded in the recorder’s office at Beaver in Plan Book, No. 1, p. 276.

Cook sold none of the lots laid out in the plot separately but, at a public sale, sold the entire plot to one Black, who, in December, 1906, made a new plot or plan, abolishing the addition of the eighteen feet made to Prospect alley by Cook and restoring the alley, as it had been before, to twelve feet in width. This plan was also approved by the town council and burgess and was duly recorded in the recorder’s office of Beaver county in Plan Book, No. 2, p. 1.

Alter- the second plan was approved and recorded, Black sold one of the lots contained in his plan to the defendant, who, in the improvement of it, proceeded to erect a stable upon a portion of the eighteen feet added by Cook’s plan to Prospect alley.

The plaintiff (appellant here), regarding his rights as invaded by the defendant, filed his bill in equity, asking the court to restrain the defendant from erecting the said stable, on the ground that it was being erected on a public street, and that, as a citizen of the borough, he was entitled to the free and uninterrupted use of Prospect street throughout its width of thirty feet, as dedicated in the Cook plan.

It is to be noted that the plaintiff was not a purchaser of a lot contained in the Cook plot or plan, nor did his property abut upon the eighteen feet added to the width of Prospect alley, so as to make it a street, but was bounded on its northern side by the said Prospect alley. It is plain, therefore, that the plaintiff acquired no rights of any kind to the ground upon which the defendant was erecting his stable, unless the eighteen feet added by Cook to the width of the alley by his plot or plan made that a part of a public street, in which the plaintiff had a right simply as a citizen of the borough.

Under the second section of the Act of April 3,1851, P. L. 320, the borough had power “to survey, lay out, enact and ordain such roads, streets, lanes, alleys, courts, and common sewers as they may deem necessary, and to provide for, enact, and ordain the widening and straightening of the same.” The supplement to the Act of April 3, 1851, P. L. 320, of May 24,1901, P. L. 299, does not change, take away, or add to the powers of the borough, except as to subjects not herein specifically involved.

It is clear from the findings of fact by the court, based upon the evidence taken at the hearing for the dissolution of the preliminary injunction, it having been agreed by a stipulation of the solicitors for plaintiff and defendant “that the testimony taken at the hearing, upon the motion to dissolve the preliminary injunction be considered as taken for the purpose of the decision of the case upon final hearing, and that the opinion of the court and the findings of fact and law heretofore filed, be taken and adopted as made on final hearing:” that the borough, beyond the approval by the council and burgess of the Cook plan, did nothing which would indicate an adoption by the borough of the street provided for in the Cook plan as Prospect street by the addition of eighteen feet from the property of which he was trustee to the width of Prospect alley. The borough did not survey, lay out, enact and ordain such a street, nor did it do any specific act which indicated any intention on its part to dedicate the increased width dedicated by the private owner to the use of the public. On the contrary, as the court found, as a matter of fact, in its eighth finding of fact, “That the lot so dedicated to public use was never formally accepted as one of the public highways of the said borough of Rochester, either by a resolution, ordinance or other action of the town council, unless the approval of the said plan to enable it to be placed on record, amounted to such acceptance; the increased width of the said street was never actually traveled upon by the public or opened to public travel; the said eighteen feet so dedicated is at a considerable elevation above the said alley op street, as originally laid out and used, and in order that the same might be utilized by the public considerable grading would have to be done.”

The appellant quotes the amendment to sec. 9 of the act of May 16, 1891, as contained in the Act of May 22, 1895, P. L. 106, as the law under which streets can be vacated, but the provisions of the said amendment relate as well to the opening, widening, straightening or extending streets or alleys as to vacating them, and his argument, therefore, proves too much, for if, under the approval of the town council of the Black plan, the street could not be vacated, neither under the approval of the Cook plan was it opened.

Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92, cited by the appellant, was a case in which the purchaser of a lot, abutting upon a dedicated highway, claimed damages for the opening of a street which had been dedicated to public use by her predecessor in title, and that, therefore, she was not entitled to damages for the taking of what had been dedicated to the public and had been used by it. In the latter case, among other things, it was decided that: "Executors, with full testamentary powers of sale, may divide land into lots and selling the same by reference to plots showing projected street can and will effect a dedication of such streets as fully as their testator could have done; but even if the heirs or beneficiaries had any right to object, the executor’s vendee is estopped by his deed in repudiating the action of his vendors or denying their power.”

If the defendant, Grandey, had purchased from Cook the lot upon which he was attempting to build his stable, which called for a street thirty feet wide, he would have come under the ruling in this case, had he attempted to occupy the land dedicated by the plot to public use, but it is to be remembered that Black purchased all of the lots upon the plot laid out by Cook and that he changed the plot with the approval of the borough authorities, before the sale was made to Grandey, and that he held under a deed which called for Prospect alley twelve feet wide, and not for Prospect street thirty feet wide.

In the case of Osterheldt v. Philadelphia, 195 Pa. 355, there was a claim for damages for the opening of a street over land previously dedicated by the vendor of the claimant and it has no application here. So in Quicksall et al. v. Philadelphia, 177 Pa. 301, the question was as to the right of the plaintiff to recover damages for the opening by the defendant city of certain streets. The plaintiffs claimed ownership of the land to the middle of these streets. Stone had been quarried from them by the plaintiffs and their grantors, so that the streets, as filled in by the city, were not as high as the original surface of the ground. The land in question had been laid out in 184.7 by the then owners into lots and a plan was recorded. The lots were sold and conveyed according to the plan, and described as bounded by Rúan and Leiper streets. These streets were mentioned in the deeds as having been laid down on said plan for the accommodation of this and other lots. Under these circumstances the court held that the plaintiffs were not entitled to damages by reason of the dedication, unless that right could be enforced by reason of the Act of May 9, 1889, P. L. 173. Neither of these cases, therefore, has any application to the case in hand.

The discussion of the conclusions of law of the court below, based upon the Act of April 3,1851, P. L. 320, requires no comment on our part. It covers the case fully and, in our opinion, rules it, but we have' referred to the acts of 1891 and 1895 for the purpose of showing that they make no change in the power of boroughs to survey, lay out, enact and ordain roads, streets and alleys, and that the act of 1895 relates as well to the opening as to the vacating of streets and that, therefore, the original plot or plan, as laid out by Cook and approved by the borough authorities, had no more legal effect in regard to the opening of the street, so far as the rights of persons who were not included within the plan or plot were concerned, than would the approval of the Black plan have vacated the street, if it had been adopted and actually opened by the borough.

From every point of view, we quite agree with the conclusion of the learned court below “That the structure proposed to be erected by the defendant is within the limits of his own land, and that no part of it will be upon Prospect alley,” and that it could not be anticipated “that the defendant will so erect or keep his stable when erected as to make it a nuisance, either public or private.” The dissolution of the preliminary injunction was, therefore, well founded and as a consequence the dismissal of the plaintiff’s bill followed.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Henderson, J.,

text:
    Strickler v. McElroy, Appellant.

      Corporations—Stock—Increase of stock—Right to subscribe to new stock.

    1. When the capital stock of a corporation is increased by the issue of new shares, each holder of the original stock has a right to offer to subscribe for and demand from the corporation such a proportion of the new stock as the number of shares already owned by him bears to the whole number of shares before the increase.
    2. The persons entitled to participate in the distribution of the new stock are those who are stockholders at the time the stock actually goes out.
    3. The stockholder of a corporation authorized an increase of stock by the addition of 2,000 shares in 1892. All of the new stock was issued prior to 1901, except 172 shares. At the time the increase was authorized a resolution was passed providing the stock that day authorized and remaining undisposed of should issue thereafter upon such terms and in such manner as the board of directors might thereafter direct. In 1901, the directors of the company, who owned a controlling interest in the stock, entered into an arrangement among themselves by which they divided the 172 shares among themselves at par. No notice of their intention to do so was issued to the stockholders, and no stockholder other than themselves had knowledge of the transaction until the new shares had been issued and paid for. In the interval between 1892 and 1901 the stock had become three times as valuable, and five years after 1901, it was sold for four times the par value. One of the stockholders brought an action against the directors to recover his proportion of the profit derived by the directors from the sale of the stock to themselves. Held, that the plaintiff was entitled to recover.
    Argued Oct. 5, 1910.
    Appeal, No. 29, March T., 1910, by defendants, from judgment of C. P. York Co., April T., 1907, No. 77, on verdict for plaintiff in case of Eli S. Strickler v. Henry McElroy and Howard L. Keller, Executors of the last will and testament of Henry McElroy, deceased, Henry Brinton Stock et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit against the directors of a corporation to recover profit made on sale of stock.

      The facts are stated in the opinion of the Superior Court.
    At the trial the defendant presented the following points:
    1. If the plaintiff originally had a right to demand a part of the stock authorized to be issued in 1892, he and all the stockholders waived that right in adopting the resolution of February 4, 1892, authorizing the directors of the corporation thereafter to issue the stock “upon such 'terms and in such manner as the board of directors shall hereafter direct,” and the verdict of the jury must be for the defendants. Answer: This point is refused. If that concluding part had been left out, we might have affirmed the point; but we cannot affirm it with that in. [1]
    2. There being no evidence of demand by the plaintiff upon the corporation for any of the increased stock, and no offer on his part to pay for the same, the plaintiff has no cause of action, and the verdict of the jury must be for the defendants. Answer: This point is refused. [2]
    3. There is no evidence from which the jury can find that the plaintiff was the owner of any of the capital stock of the Wrightsville Hardware Company in 1892, when the increase, which the 172 shares in question were a part, was authorized; and therefore there is no evidence from which the jury can find that the plaintiff was in 1892, or at any other time, entitled to demand any part of the said increase, including the said 172 shares, be issued to him, and therefore the verdict of the jury must be for the defendants. Answer: This point is refused. [3]
    4. There is no evidence that at the time the stock in question was bought and paid for by the defendants, to wit, April 2, „Í901, that the plaintiff offered to subscribe and pay for the stock, or any part of it; and no evidence that he made any request for an allotment of it among the stockholders; and the uncontradicted evidence is that the plaintiff, although he had knowledge of the fact immediately after the stock was bought and paid for by the defendants, acquiesced until, to wit, March 22, 1907, when this suit was brought, a period of almost six years. Under such circumstances it is too late for the plaintiff now to contend that this stock was unlawfully disposed of because no allotment of it was made among the stockholders. If the stockholders were at any time entitled to an allotment, they have waived such right by their act and their acquiescence in and recognition of the defendants’ subscriptions. The verdict of the jury must be for the defendants.' Answer: This point is refused. [4]
    5. The uncontradicted evidence is that all of the original capital stock of the Wrightsville Hardware Company, to wit, $5,000 at par, was outstanding in 1892 at the time of the stock increase. The uncontradicted evidence is that in 1894 the plaintiff became the owner of 152 shares of the increased stock authorized in 1892; and there is no evidence showing, or tending to show, that he was entitled to any more of that increase; and therefore the verdict of the jury must be for the defendants. Answer: This point is refused. [5]
    6. The uncontradicted evidence is that prior to the purchase of the stock in question in 1901 by the defendants, one of the defendants, Henry Birnstock, then a director of the corporation, asked the plaintiff to purchase these 172 shares, or a part thereof, and the plaintiff refused to do so. Under these circumstances the directors were not required to again solicit the plaintiff to take additional stock, and the verdict of the jury must be for the defendants. Answer: This point cannot be affirmed on the evidence in this case, and is refused. [6]
    7. The increase of the capital stock having been authorized in 1892, and it appearing from the uncontradicted evidence that the plaintiff never undertook to exercise his right, if any, to subscribe to any part of the increase, he is barred by his laches or acquiescence from complaining of the issue of said stock to others in 1901, nine years later. Answer: This point is refused. [7]
    Verdict and judgment for plaintiff for $300. Defendant appealed.

      Errors assigned among others were (1-7) above instructions, quoting them.

      J. S. Black, with him V. K. Keesey, and N. S. Ross, for appellants.
    Although those owning the stock of the corporation when the capital stock of that corporation is increased may each demand a proportionate part of the increase, they may waive that right and leave the stock to be disposed of to others: Shellenberger v. Patterson, 168 Pa. 30.
    The plaintiff did not prove or offer to prove that he had demanded and offered to pay for any part of the shares in question: Wilson v. Bank of Montgomery, 29 Pa. 537; Electric Co. of America v. Electric Co., 200 Pa. 516.
    Having refused to take the stock when it was offered to him, and having made no demand upon the corporation for any part of it, the plaintiff can have no cause of action: Hoyt v. Shenango Valley Steel Co., 207 Pa. 208.
    If the plaintiff had at any time a right to an allotment from these 172 shares, he has waived that right by his acquiescence in the subscriptions by the defendants for a period of almost six years: Shellenberger v. Patterson, 168 Pa. 30.

      II. C. Niles, of Niles & Neff, for appellee,
    cited: Reese v. Bank of Montgomery County, 31 Pa. 78; Morris v. Stevens, 178 Pa. 563; Electric Co. of America v. Edison Electric Co., 200 Pa. 516; Bird Coal & Iron Co. v. Humes, 157 Pa. 278.
    March 3, 1911:
   Opinion bt

Henderson, J.,

The Wrightsville Hardware Company was a Pennsylvania corporation the capital stock of which was originally $5,000 divided into 500 shares. In February, 1892, the stockholders authorized an increase of the capital by an addition of 2,000 shares of the par value of $10.00 each. All of this increase of stock was issued prior to March 12, 1901, except 172 shares. Just when the shares were so issued does not appear from the evidence but it was presumably soon after the increase was authorized. About March 12, 1901, the directors of the company entered into an arrangement among themselves in which they agreed to issue the 172 shares and divide it among themselves at the par value of the stock and on that day a resolution was accordingly passed at a meeting of the board directing that certificates for the stock be issued in the proportions agreed upon. The certificates were delivered April 2, 1901, to the members of the board to whom they were allotted and a check of one of them for $1,720 was paid into the treasury for the stock. This action was taken without notice from the board of the intention to issue the shares and without an opportunity after the adoption of the resolution to any other stockholders to take stock by right of preemption or by purchase. The evidence tends to show that at this time the stock was worth more than $30.00 per share and it was' sold by the respective owners in 1906 for $40,00 per share, dividends having been paid thereon in the meantime to the amount of $3.50 on each share. The plaintiff was at that time the owner of 152 shares of the stock of the company and this action was brought to recover his proportion of the profit derived by the defendants from the sale of the stock to themselves. To support his claim he relies on the generally accepted principle relating to the administration of the business of a corporation that where the capital stock is increased and is about to be issued every existing stockholder then has the right to subscribe át par for such a proportion of the stock to be issued as his holdings bear to the amount of stock then outstanding. The rule is thus stated by some of the text writers: “If the capital stock is increased by the proper authorities the right to take the additional shares vests in the stockholders pro rata: ” Taylor on Corporations, sec. 569 (5th ed.). “When the capital stock of a corporation is increased by the issue of new shares, each holder of the original stock has a right to offer to subscribe for and demand from the corporation such a proportion of the new stock as the number of shares already owned by bim bears to the whole number of shares before the increase: ” 1 Cook on Corporations sec. 286 (6th ed.). And this applies to such part of the original capital stock as is issued long after business is commenced by the company. “Those who are shareholders when an increase of the capital stock is effected enjoy a right to subscribe to the new stock in proportion to their shares and before subscriptions may be received from outsiders: ” 23 Am. & Eng. Ency. of Law, 853. This principle was recognized in Reese v. Bank of Montgomery County, 31 Pa. 78, and applied in Morris v. Stevens, 178 Pa. 563 and Electric Company v. Electric Company, 200 Pa. 516. We do not understand that the appellants controvert the doctrine thus set forth. They present four grounds of defense on which they rely for relief from the judgment of the court below. The first is that the capital stock was increased in February, 1892, and that the plaintiff did not prove that he was at that time a stockholder. It did appear from the evidence, however, that he was the owner of 152 shares at the time when the defendants allotted the stock to themselves. The increasé authorized by the stockholders in February, 1892, was 2,000 shares, but of this authorized issue the 172 shares remained in the corporation until the directors by their action on March 12, 1901, divided it among themselves. Up to this time there was not an actual increase of the capital stock as to these shares. There was merely the right to issue; a franchise then existing in the corporation. The shares became stock of the company when they were regularly issued. The statement of the right of preemption given by Chief Justice Sterrett in Morris v. Stevens, 178 Pa. 563, is “In general the present holders of stock have a primary right to subscribe in proportion to their holdings for any new issue.” This indicates that the persons entitled to participate in the distribution of the new stock are those who are stockholders at the time the stock actually goes out and this would cover the plaintiff’s case. He was a stockholder and had been for a long time before the last issue was made. But the plaintiff is not driven to the necessity of showing that he was a stockholder at the time the increase of the capital stock was authorized, for the directors were trustees of all of the stockholders and were bound by legal and moral obligation to manage the business of the company with a view to advance the interests of such shareholders and were forbidden by the same obligation to derive personal profit by the exercise of their authority as directors. They are presumed to have better understood the financial condition of the company than their coshareholders because they were actively engaged in its management and if, as seems to be proved, the stock was worth three or four times the price at which they took it themselves it would be a manifest wrong to the other shareholders to permit such disposal of the stock. When by reason of the prosperity of the company or the prospect of an advantageous sale of all the stock to another company there was a greatly increased value of the shares the directors could not issue and appropriate to themselves the unsubscribed stock at a price greatly below its known value. The stock when issued became a charge against the company and it was the right of the plaintiff to insist that if it was not to be equitably divided under the right of preemption it should be disposed of at its market value. The directors owned a majority of the stock of the corporation and thereby controlled it and however well intended may have been their action the law forbids that they should take advantage of the power which they had to elect themselves directors and issue stock to themselves at a price greatly below its value.

But, say the defendants, the right to subscribe for any part of the unissued stock was waived by the stockholders because in their action authorizing the increase of stock in February, 1892, a resolution was passed providing that the stock that day authorized and remaining undisposed of should issue thereafter upon such terms and in such manner as the board of directors might direct. This resolution was evidently intended to give the directors power to sell to persons not then stockholders as much of the stock as was not subscribed for by the then existing stockholders, but it cannot be presumed that it was the intention of the stockholders that if by reason of changed conditions nine years afterward the stock became worth three or four times as much as it was in 1892 the directors were by this resolution empowered to take the unissued shares themselves at par. The resolution of the stockholders was passed with the implied understanding that the directors would dispose of the stock in the interest of the corporation and not for their individual advantage. If the shares had been offered to the stockholders or the public and disposed of at what would be considered a fair price the argument would be conclusive that no right of action arose in favor of the stockholders by such action. But that is not the case presented. The interests of the other shareholders were not protected in this respect. That which should have been a source of profit to all became a matter of gain to the directors who received the new shares.

It is further contended that the plaintiff failed to show that he made a demand for an allotment of this stock and that having been in default in that respect he cannot now successfully maintain an action for damages for refusal to permit him to participate in the distribution, and also that when solicited by one of the directors to subscribe for stock he refused. A satisfactory reply to the objection that no offer was made to take the stock is found in the fact that the directors did not give notice of their intention to cause the new shares to be issued and that no stockholder other than themselves had knowledge of the transaction until the new shares had been actually issued and paid for by the defendants. The solicitation to the plaintiff to take some of the stock was long before the time when the defendants took it and before the project was under consideration to sell the corporation to new owners. It might well be that the plaintiff would be unwilling to take stock at the time it was proposed to him by one of the directors that he buy it, but his estimate of the property might be materially changed when a year or two afterward the stock was offered for sale. Moreover, the unwillingness of the plaintiff to buy did not relieve the defendants from the obligation to obtain a fair market price for the stock in the interest of all of the stockholders. The fact was a prominent one in Electric Co. v. Electric Co., 200 Pa. 516, and Hoyt v. Shenango Val. Steel Co., 207 Pa. 208, cited by the appellants, that the stock was disposed of at its value. The acquiescence which the defendants set up amounts to nothing more than delay in bringing the action. The plaintiff's right arose when the defendants took the stock for themselves. No intervening rights have arisen and no fact is disclosed by the evidence which prevented the plaintiff from bringing his action within the statutory limit. The case of Shellenberger v. Patterson, 168 Pa. 30, has a very different complexion from the case before us. There, the subscription of Patterson for 600 shares of the capital stock of the company made it possible for the latter to secure a loan of $60,000 which it proceeded to do by executing a mortgage to the Pennsylvania Trust Company. This loan could not have been made without the increase of the outstanding stock of the company caused by the Patterson subscription and the mortgage of the railroad company given to the trust company recited a resolution of the company authorizing an increase of the indebtedness to the extent of the Patterson subscription and the borrowing of an amount not to exceed the amount of the capital stock subscribed and at the time authority was given the president and secretary of the company to execute the mortgage for the loan both the directors and stockholders had knowledge of the Patterson subscription. The stockholders received the benefit and advantage of the subscription and there was no evidence that the stock would have sold for more. That case, however, while denying the right of the plaintiffs to an injunction to restrain the issuing of the stock pursuant to the Patterson subscription admits the right of a stockholder to an action at law for damages for an injury done to him by a wrongful issue of stock. The authorities are against the position of the appellants and the assignments of error must be overruled.

The judgment is affirmed.