author: Orlady, J.,

text:
    Umbria Street.

      Road law — Vacation of streets — Jury of view — Extension of time for filing report of fury — Acts of April 21, 1858, P. L. 385, and March 18, 1903, P. L. 28 — Constitutional law.

    The Act of April 21, 1858, P. L. 385, relating, among other matters, to the vacation of streets in the city of Philadelphia is constitutional.
    The Act of March 18, 1903, P. L. 28, giving the courts power to extend the time for the filing of reports by road juries, is constitutional, and applies to vacation proceedings brought under the Act of April 21, 1858, P. L. 385.
    Where a jury of view has improperly assessed all the damages for the vacation of a street against a railroad company, the court may refer the report back to the same jury of viewers to correct the error, and it is not necessary that the jury should be again sworn to make such correction effective.
    Argued Oct. 5, 1906.
    Appeal, No. 50, Oct. T., 1906, by the City of Philadelphia, from order of Q. S. Phila. Co., Oct. T., 1903, dismissing exceptions to report of viewers in the Matter of the Vacation of Umbria Street.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of road jury.
    From the record it appeared that the jury of view was appointed under a petition filed October 15, 1903, to assess damages for the vacation of Umbria street. The jury was appointed on October 29,1903, to report on or before March 1,1904. The time for filing the report was extended. The jury finally reported, assessing damages against the Pennsylvania Railroad Company. On exceptions the report was referred back to the same jury, which was not resworn. Subsequently the jury reported, assessing damages against the city of Philadelphia. Exceptions filed by the city of Philadelphia to this report were dismissed.
    February 25, 1907:

      Error assigned was in dismissing exceptions to the report of the jury of view.

      John H. Maurer, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellant.
    — The Act of March 18, 1903, P. L. 28, does not apply to a proceeding under the sixth section of the local Act of April 21, 1858, P. L. 385 : Paul v. Carver, 24 Pa. 207; McGee’s App., 114 Pa. 470 ; D. of A. R. v. Schenley, 204 Pa. 572; Butler Street, 25 Pa. Superior Ct. 357 ; Howell v. Morrisville Borough, 212 Pa. 349.
    When the report was referred back to the viewers they should have been reappointed, continued or resworn: Springbrook Road, 64 Pa. 451.

      Frederick A. Sohernheimer, for appellees,
    cited : Vacation of Penrose Ferry Avenue, 27 Pa. Superior Ct. 341; In re Butler Street, 19 Pa. Superior Ct. 48 ; In re Tabor Street, 25 Pa. Superior Ct. 355; In re Grape Street, 103 Pa. 121; Allegheny Ave., 3 Pa. Superior Ct. 387.
   Opinion by

Orlady, J.,

The constitutionality of the sixth section of the Act of April 21, 1858, P. L. 385, was settled beyond further contention by the Supreme Court in Howard Street, 142 Pa. 601; Hare v. Rice, 142 Pa. 608; Melon Street, 182 Pa. 397; and Morris v. Philadelphia, 199 Pa. 357. The act is entitled “ a further supplement to the act incorporating the city of Philadelphia ; ” and provides by the sixth section : “ That it shall be the duty of juries selected to assess damages for the opening, widening, or vacating roads or streets within the said city to ascertain and report to the court: first, what damages the parties claiming the same are entitled to ; and, second, to assess and apportion the same among and against such owners of land as shall be benefited by such opening, widening, or vacating any such road or street, etc.”

“ This act was said by Mitchell, J., in the opinion in In re Vacation of Howard Street, 142 Pa. 601, to extend the system long established in Philadelphia for the assessment of benefits for local improvements and the application of the money as raised to compensate others whose property has been taken, to consequential injuries causes by the vacation of streets, and to anticipate the provision of the new constitution which secures compensation for consequential damages where property has been injured. Before the adoption of the new constitution the commonwealth was under no obligation to make compensation for damages caused by the vacation of streets : Paul v. Carver, 24 Pa. 207. Since its adoption no such duty is imposed by the provision that compensation shall be made for property taken, injured or destroyed; and the right to recover damages for injury so resulting exists only by virtue o f special legislative provision: McGee’s Appeal, 114 Pa. 470. But the right to recover damages caused by the vacation of the streets in Philadelphia has been conferred by the legislature, etc.: ” Melon Street, supra. By that act, damages arising from the vacation of streets in the city of Philadelphia were grafted onto the general system of road damages, and the proceedings appropriate in cases of opening or widening streets were made applicable in vacation cases: Penrose Ferry Avenue, 27 Pa. Superior Ct. 341.

The contention most seriously urged in this case is that the Act of March 18, 1903, P. L. 28, under which act the jurors assessing the damages against the appellant were appointed, is unconstitutional. It is as follows: “ An act regulating the filing of reports of viewers or juries of view, appointed by the courts of this commonwealth to assess damages and benefits for the taking, injury, or destruction of private property in the ^construction or enlargement of public works, highways or improvements. Section 1. Be it enacted, etc. That viewers, or juries of view, appointed by any court of this commonwealth to assess the damages-and benefits, due to the taking, injury or destruction of private property, in and by the construction or enlargement of any public work, highway or improvement, shall make their reports within a time which said court shall fix when so appointing them: Provided, that if any of the viewers, or juries of view, so appointed, shall for any good and sufficient reason appearing to the court, be unable to' file its report within the period so fixed, the said court may, in its discretion, either before or after the expiration of the time fixed, extend the time for the filing of such report to such a time as justice and the circumstances of the case may demand. Section 2. All other acts or parts of acts, general, special, or local, inconsistent herewith are hereby repealed.”

The plan, which under the law caused the vacation of Umbria street was revised and confirmed by the board of surveyors of the city on November 15, 1897. The petition for the appointment of viewers to assess the damages sustained by reason of said vacation was filed October 15,1903. The viewers were appointed October 29, 1903, “to make report on or before March 1,1904.” On February 29,1904, the time for filing their report was extended to May 1, and on April 29, the time was further extended to June 1. The report was filed on May 12, to which the claimants filed exceptions. The operation of the act is confined to the filing of reports of viewers, or juries of view, appointed by the courts to assess damages and benefits in the cases therein mentioned, and does not in any manner affect the “ limitation of time within which suits may be brought against corporations for injuries to persons or property or for other causes different from those fixed by the general laws regulating actions against natural persons ” : Art. 3, sec. 21, of the state constitution.

The former practice was found to be burdensome upon both the courts and suitors in having continuances noted each month, when it was well known that it was not possible to have a final report made within the time stated: Knox Street, 12 Pa. Superior Ct. 534. The purpose of the act was to relieve this cumbersome procedure, and it required that the “ jurors shall make their reports within a time which said court snail fix when so appointing them,” and within which it was reasonably to be expected that the jurors could discharge their duties. No right of either party was affected by so doing, as the same result could be secured under the former practice by having the orders made from month to month. The act relates only to the order of practice and tends to facilitate the work of the court in not cumbering the record with decrees that serve no good purpose. The former practice was regulated by an act of assembly, (sec. 3, of Act of June 13, 1836, P. L. 551) requiring that viewers shall make report at the next term, which in the city of Philadelphia means every month, and this section is distinctly repealed by the second section of the act of 1903. The authority which established the practice may subsequently change it, and under decision of Penrose Ferry Avenue, supra, and the cases therein cited, the act of 1903 applies with equal pertinency to vacation, as to opening ,or widening proceedings.

The original report of the jury .found that a railroad company, an owner of land in the vicinity, was specially benefited by its ownership to the amount of the damages awarded the claimants, and assessed all the damages awarded against that owner. To this report exceptions were filed by the claimant - alleging that the award should have been in favor of the exceptants, and payable by the city of Philadelphia. Penrose Ferry Avenue, 27 Pa. Superior Ct. 341, was decided March 14, 1905, and on April 19 the exceptions of the property owners were sustained and the report was referred back “to the jury for further consideration and amendment ” under the authority of that c.ase, The viewers were not formally reappointed, nor were they reswom. Pursuant to the reference to them, they met and heard all the parties in interest, reviewed the premises and reaffirmed their findings of damages and benefits, and filed an amended report awarding to the claimants as damages the same amounts as in their former report, “ to be paid to said parties by the city of Philadelphia,” and assessed as benefits the amount of damages awarded to be paid to the city by the railroad company. It is conceded that the viewers were regularly sworn when they were appointed. The report was sent back to them for consideration and amendment of the question of naming the proper party primarily liable as paymaster of the damages to the claimants. The exception did not touch the merits of the proceeding further than tins, and the court had full authority so to refer the report to the same jury of viewers to correct errors or omissions, and it was not necessary that they should have been again sworn to make that correction effective : Potts’s Appeal, 15 Pa. 414 ; Hilltown Road, 18 Pa. 233; Springbrook Road, 64 Pa. 451; Springdale Township Road, 91 Pa. 260; Hempfield Township Road, 122 Pa. 439; North Franklin Township Road, 8 Pa. Superior Ct. 358.

That the act of 1903 applies to vacation proceedings brought under the act of 1858, as well as to opening and widening proceedings, is established by the. cases of Howard street, Melon street and others of that line. The different means of “taking, injury or destruction of private property ” are dealt with through the same character of proceeding. “ The legislature has put the vacation of streets on the same footing as to damages thereby resulting to property owners, as the taking for opening or widening. . . . The statute imposes on the city liability in the first instance for damages resulting from vacating in like manner, as in the cases of opening or widening streets, and the mode of assessing damages and benefits is made the same: ” Penrose Ferry Avenue, 27 Pa. Superior Ct. 341. The owners of property which has depreciated in value by reason of the closing of the street have sustained an injury in their property rights which is peculiar to themselves and which is different in kind from the injury sustained by those who use the street for travel only. The injury is not of the same kind, differing in degree only; it is an additional injury, caused by the impairment of an entirely distinct right, — the special right of ingress and egress: Melon Street, 182 Pa. 397.

The assignments are overruled and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Linney Street.
    Argued Oct. 5, 1906.
    Appeal, No. 51, Oct. T., 1906, by the city of Philadelphia, from order of Q. S. Phila. Co., Oct. T., 1903, dismissing exceptions to report of viewers in the Matter of the Vacation of Linney Street.
    Befoi’e Rice, P. J., Poetes, Henderson, Mobbisow, Oblady, Head and BeaYEB, JJ.
    Affirmed.

      John H. Maurer, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellant.

      February 25, 1907 :

      Frederick A. Sobernheimer, for appellee.
   Opinion by

Orlady, J.,

The questions involved and the facts in this case being the same as in In re Vacation of Umbria Street, the assignments of error are overruled and the judgment is affirmed for the reasons given in an opinion filed this day in that case.


author: Oblady, J.,

text:
    Hausman v. Johnson, Appellant.

      Vendor and vendee — Incumbrance—Ground rent — Proceedings to extinguish.

    Where articles of agreement for the sale of land provide for a settlement within sixty days, and that the premises shall be conveyed clear of incumbrance, and after the expiration of the sixty days, it is discovered for the first time by both parties that there was against the premises an unextinguished ground rent dated May 1, 1764, upon which no payment had been made for over fifty-five years, and it appears that the vendor at once instituted proceedings to extinguish the ground rent of record, and offered to indemnify the purchaser against loss, it is error for the court to enter judgment against the vendor for the hand money paid and the costs incurred.
    Argued Oct. 5, 1906.
    Appeal, No. 58, Oct. T., 1906, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 3,250, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Sophie Hausman v. Helen S. Johnson.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for the return of purchase money paid on account of real estate and for the expenses of searches.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Samuel H. Kirkpatrick, with him Ralph N. Kellam, for appellant.
    — The ground rent was not a valid charge which rendered the appellant’s title to the land unmarketable: Korn v. Browne, 64 Pa. 55; Biddle v. Hoover, 120 Pa. 221; Wallace v. Fourth U. P. Church, 152 Pa. 258.
    February 25, 1907:
    A title is marketable which depends on adverse possession or the statute of limitation if it clearly appear that the entry of the real owner is barred : Pratt v. Eby, 67 Pa. 396 ; Shober v. Dutton, 6 Phila. 185; Dallmeyer v. Ferguson, 198 Pa. 288.
    A vendor is not bound to remove incumbrances until the vendee demands performance of the contract, and a vendee cannot insist upon rescission on the ground of incumbrances, when he owes unpaid purchase money sufficient to discharge them : Irvin v. Bleakley, 67 Pa. 24; Hatton v. Johnson, 83 Pa. 219; Forsyth v. North American Oil Co., 53 Pa. 168.
    The vendor being bound to remove incumbrances only when the vendee shows a readiness to perform his part, is always entitled to such reasonable time as is necessary to remove them: Parrish v. Koons, 1 Parsons, 78; Boyd v. McCullough, 137 Pa. 7.

      Max fferzherg, for appellee.
    — The appellee being ready to perform and the appellant being in default, she had a right to rescind and recover the money paid; there was no necessity for a tender of the purchase price: Eberz v. Heisler, 12 Pa. Superior Ct. 388; Zents v. Legnard, 70 Pa. 192; Wagenblast v. McKean, 2 Grant, 393 ; Williams v. Bentley, 27 Pa. 294; Henry v. Raiman, 25 Pa. 354.
    The purchaser of land is entitled to receive a good title, and if the vendor offers instead one that is incumbered with liens or otherwise defective, the vendee is entitled to rescind the executory agreement: Moore v. Shelly, 2 Watts, 256.
    A ground rent is an incumbrance under the law of Pennsylvania and if not extinguished of record affects the marketability of the title: Muirhead v. Clabby, 7 Phila. 345.
    Nor is a purchaser bound to take subject to a ground rent and deduct from the purchase price the value of such ground rent: McCarthy v. Winslow, 1 Weekly Notes of Cases, 515; Gans v. Renshaw, 2 Pa. 34; Simpson v. Broomall, 1 Del. Co. Rep. 229.
   Opinion by

Oblady, J.,

The plaintiff and defendant, on September 25,1905, entered into an agreement in writing for the sale and purchase of two parcels of real estate for the sum of $3,800. The sum of $50.00 was paid at the execution of the agreement, and payment of the balance was provided for through a settlement to be had within sixty days. This controversy arises over the concluding provisions of the agreement, viz : “ The premises are to be conveyed clear of incumbrance. Possession is to be given by the existing monthly leas'es. The title is to be good and marketable.” Upon a search of the title it was discovered that the premises were subject to a ground rent of one pound, seven shillings, reserved in a deed dated and recorded May 1, 1764, and which had never been extinguished of record. A title insurance and trust company, from which a title insurance had been sought by the plaintiff, held this to be a valid and existing incumbrance against the premises, and on account of its refusal to insure the title of the. premises, clear of the ground rent incumbrance, the plaintiff on November 29 gave notice to the defendant that “ the title was nob good and marketable, •and that the premisés could not be conveyed clear of incumbrances.” Twenty days later, no effort having been made to have the ground rent legally extinguished, she gave further notice that she desired the return of her purchase money and the costs expended by her and for which'she was still liable.

This suit was brought to recover these items, and the court below made absolute a rule for judgment against the defendant for the sum of $50.00, for which amount the affidavit of defense filed was deemed to be insufficient. The affidavit of defense avers that the ground rent was reserved by Thomas Say upon a conveyance on May 1, 1764, but. the last recorded owner of said rent was Bowyer Brooks, by a deed for the same dated October 29, 1765, and that there has be.en no conveyance' or attempted conveyance of the same for over 140 years; and that there is no known present holder of said rent; that, the premises were purchased by the grandfather of the defendant in 1850, and have been continuously in the ownership and possession of him and the affiant ever since; and that there has not been at any time within the last fifty-five years any payment, claim, demand, or acknowledgment of or for said rent; and further that she had (prior to February 13, 1906) applied to the court of common, pleas, No. 4, of Philadelphia county, for a decree of extinguishment of the said rent. The contention of the appellant being that under the facts as set out, the ground rent had been extinguished by payment or presumption of law, although no deed or release thereof appears of record; and that it is irrecoverable, according to the terms of-the Act of April 27, 1855, P. L. 368, the seventh section of which provides that: “ In all cases where no payment, claim or demand shall have been made on account of or for any ground rent, annuity, or other charge upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises subject to such ground rent, annuity or charge, a release or extinguishment thereof shall be presumed, and such ground rent, annuity or charge shall thereafter be irrecoverable. The procedure to effect a final decree, declaring such a ground rent to be released, merged, and forever extinguished, with the same force and effect as a deed of extinguishment duly executed by the real owner and duly recorded, is provided by the Act of June 14, 1897, P. L. 149. The defendant further avers that she tendered to the plaintiff a full indemnity against any possibility of claim whatsoever on account of the ground rent until such decree be entered. The question is thus narrowed by the statement and affidavit to whether, under the facts stated, and in regard to which there is no dispute, a release or extinguishment of the ground rent shall be presumed, and such rent shall thereafter be irrecoverable, so as to make the title of the premises clear of incumbrance, good and marketable.

By the agreement, as well as by the construction put upon it by the parties, time was not of the essence of the contract. The time for performance was fixed by the phrase “ the balance to be paid at the settlement which will take place within sixty days. Sophia Hausman is given right to pay cash if desired.” No settlement was effected within the sixty days, and the “ plaintiff first became aware of the existing incumbrance ” after the expiration of the sixty days, and then gave the defendant notice thereof.

In Boyd v. McCullough, 137 Pa. 7, it is held that “ the time for the payment of the purchase money and for the delivery of the deed having passed without any payment of the money, or. offer of payment, or without any tender of a deed or demand for the money, the time for performance becomes indefinite, but mutual, and dependent whenever it should occur, and whichever of the parties first desired to enforce the performance of the contract was bound to perform his part of the contract as a condition precedent. Until the purchaser was ready to settle, the vendor was not bound to remove the incumbrance.” But in this ease neither party knew of the incumbrance until after the time fixed for the settlement, and when it was discovered it amounted to no more than a -mere unsubstantial cloud upon the title, which presumptively at least, was deprived of all legal force and efficacy by an act of assembly. Conceding as we must that when a purchaser of land contracts for a good title to the land, he is entitled to receive it, and is not required to accept any, short of such a title; and that if the vendor offers a title that is incumbered with liens or otherwise defective, the vendee is entitled to rescind the executory agreement; and further that a ground rent as such is an incumbrance, which if not extinguished of record affects the marketability of the title. Yet, where that charge is so ancient as to be extinguished by payment or presumption of law, and presumably is made irrecoverable by an act of assembly, is it such a charge upon the premises to be conveyed as will justify the vendee in rescinding? It is certainly the policy of the law- to enforce contracts fairly entered into rather than to permit their cancellation for trifling and unsubstantial reasons. The time for performance of the contract having passed by the consent of the parties, it followed that something further was to be done in the matter, and their inaction was a mutual waiver for strict performance. Inasmuch as the vendor promptly instituted the proceeding specially provided by the statute to relieve effectually this title from all lien of this ground rent which had been so long abandoned and unclaimed, without any payment, demand, or acknowledgment affecting it for at least more than fifty-five years, the court should have held that it was not such an incumbrance as justified the vendee in rescinding. The purchaser was not to take any risk, or have a doubtful title forced upon her, and the defendant avers her willingness and anxiety to perform her part. In view of the fact that the value of the rent if existing was but $72.00, or with the greatest recoverable arrears (twenty years) altogether $144, with unpaid purchase money due $3,750, and that a voluntary indemnity had been offered for her protection, she should have been required to wait at least a reasonable time in order to have the decree entered in the proceeding to extinguish the ground rent of record, rather than have been permitted to rescind her contract. No default can be imputed to either party and neither could rescind without giving the other reasonable notice and opportunity to perform, the sufficiency of which is to he determined by the court: Hatton v. Johnson, 83 Pa. 219; Holt’s Appeal, 98 Pa. 257; Davis v. Stuard, 99 Pa. 295.

In Eberz v. Heisler, 12 Pa. Superior Ct. 388, on which the appellee relies, the purchase money was $4,600, the liens athwart the title were judgments aggregating $19,000, and a ground rent of $228, which facts presented an entirely different proposition from the one before us now.

■ The judgment is reversed and a procedendo awarded.


author: Henderson, J.,

text:
    Haspel, Receiver, v. Moffitt, Appellant.

      Building and loan association — Interest—Payments—Application of payment — Mortgage—Stock payments — Insolvency.
    A provision in the by-laws of a building and loan association for the payment of interest monthly at the rate of one-half per cent on the amount loaned, and that the interest shall be annually reduced by deducting or allowing the interest on the amount of contributions paid by the purchasers during the year, cannot be so construed as to apply to payments on the principal of the debt.
    After the insolvency of a building and loan association there can be no appropriation of the value of shares to a mortgage debt.
    Argued Oct. T., 1906.
    Appeal, No. 64, Oct. T., 1906, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1905, No. 822, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lewis A. Haspel, Receiver of tlxe United Building and Loan Association of Philadelphia, v. Rebecca Moffitt, Mortgagor, and Susan Moffitt et al., real owners.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.

      Scire facias sur mortgage.
    Defendant filed an affidavit of defense which was as follows:
    That the said mortgage was duly executed on December 24, 1896 by the said Rebecca Moffitt, who has since deceased, and who became a member of the said United Building and Loan Association on December 6, 1896, by the payment to the said association of the sum of $65.40 and who thereafter made payments at the rate of $8.50 per month for the first year, 1896; $8.26 for the second year, 1897; $8.02 for the third year, 1898; $7.78 for fourth year, 1899; $7.54 for the fifth year, 1900; $7.30 for the sixth year, 1901; $7.06 for the seventh year, 1902 and $6.82 for the eighth year, 1903, until August 13, of that year, in accordance with the by-laws of said association, as follows :
    “ Article IX. Loans — Section 3. Interest shall be paid monthly at the rate of one-half of one per cent chargeable on the amount loaned which shall, after the first year, be annually reduced by deducting or allowing the interest on the amount of contribution paid in during such year by the purchaser. Any member may pay off a loan at any time by paying the net amount due, together with all the fines, premiums and interest that may be due at the time of payment, or one or more shares may be paid off and the payments of premium and interest be reduced in proportion.”
    In accordance with said by-law the said defendant paid in the year 1896, $48.00 on account of the principal of said mortgage and $48.00 annually thereafter, until 1902, inclusive, and $24.00 in the year 1903, making a total payment of $360 upon the principal of the mortgage, which is so credited to said defendant upon the books of the association, and the balance of $440 is still due and payable, with interest from August 13, 1903, since which time no payments have been made and the said defendants offered to pay to the plaintiff in the above case the said sum, as aforesaid, before suit was brought.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Charles E. Pile, for appellants,
    cited: York Trust, etc., Co. v. Gallatin, 186 Pa. 150.

      February 25, 1907:

      Wayne P. Pambo, with him Albert L. Lewis, for appellee,
    cited: North American Bldg. Assn. v. Sutton, 35 Pa. 463; Strohen v. Franklin Saving Fund, etc., Assn., 115 Pa. 273; State Saving & Loan Assn. v. Carroll, 4 Pa. Dist. Rep. 6; Freemansburg B. & L. Assn. v. Watts, 199 Pa. 221; Selden v. Reliable Saving & Building Assn., 81* Pa. 336.
   Opinion by

Henderson, J.,

The mortgagor’s obligation was to pay to the association $800 in one year thereafter,' together with all fines imposed by the constitution and by-laws and a monthly premium of fifty cents, as well as the sum of $4.00 for the monthly contribution on four shares of the capital stock of the association owned by the mortgagor. The defense to the payment demanded is that article 9 of the by-laws appropriates the payments on stock to the principal of the mortgage debt and that the payments set forth in the affidavit of defense were so applied. The appellant contends that the case is within the ruling in York Trust, etc., Co. v. Gallatin, 186 Pa. 150, and the cases there cited which hold that by agreement of the parties there may be an application of the payments on stock to the extinguishment of the debt. All of the cases relied upon place the borrower’s right to appropriate stock payments to the mortgage debt on the agreement of the parties that such application be made. The affidavit of defense lacks an averment of this essential condition. It is not alleged that the mortgagor gave notice that the stock payments were to be applied on the principal of the loan and that the mortgagee assented thereto, or that there was an assignment of the mortgagor’s stock to the mortgagee with the condition that the payments to be made thereon should apply on the debt. The averment is that “ In accordance with said by-law the said defendant paid in the year 1896, $48.00 on account of the principal of said mortgage and $48.00 annually thereafter, until 1902, inclusive, and $24.00 in the year 1903, making a total payment of $360 upon the principal of the mortgage, which is so credited to said defendant upon the books of the association.” It will be seen in an examination of the bylaw referred to that no reference is there made to the application of stock payments on the mortgage debt. It provides for the payment of interest monthly at the rate of one-half per cent on the amount loaned and that the interest shall be annually reduced by deducting or allowing the interest on the amount of contributions paid by the purchaser during the year. It would be an extreme interpretation of this part of the by-law to give it application to payments on the principal of the debt. The reason for the adoption of- the provision is not clear. It may have been considered equitable that interest on the debt should be reduced, inasmuch as the payments on the stock would be invested from time to time by the association and would produce an amount of interest equivalent to the reduction. Whatever may have been the motive the by-law cannot be made to operate upon the principal of the debt. The averment in the affidavit that the payments were made by the mortgagor to apply on the principal in accordance with the by-law is the assertion of a legal conclusion which the by-law does not sustain. Whether the affidavit was intended to declare that the credits were made on the books of the association in accordance with the by-laws or that they were made to apply on the principal debt is somewhat doubtful. No statement is given of the time when the credits alleged were entered, nor by whom they were made. The association is insolvent and the authorities all hold that after the insolvency of a building association there cannot 'be an appropriation of the value of shares to a mortgage debt. The subject is fully discussed in Strohen v. Franklin Saving Fund, etc., Association, 115 Pa. 273. If an appropriation had been made by the mortgagor and the mortgagee the affidavit should have so averred. The rights of the stockholders were fixed by the insolvency of the company. Payments made on the stock could not afterward be applied to the indebtedness. The equities of other stockholders forbid this. The payment of dues is, of course, indirectly a payment ■on the loan. Such payment adds to the value of the stock, and in that way produces a fund out of which payment of the debt is to be made when a sufficient amount for that purpose has been paid in on stock contributions. But this is a very different thing from paying on the mortgage debt. There is a double obligation of the borrowing stockholder. He must pay his mortgage according to its terms and in addition pay his stock contributions, interest, etc. Payment on the mortgage does not relieve the stockholder from liability for his stock contributions, unless it is expressly so agreed when the money is borrowed or before insolvency; nor can payments on stock be applied to a loan except by such agreement.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Walsh v. Philadelphia Bourse, Appellant.

      Landlord and tenant — ü&moval of tenant’s furniture — Bailment—Distress — Office building.

    In an action of assumpsit against the owners of an office building to recover the value of office furniture leased by the plaintiff to a tenant in the building, it appeared that the plaintiff with the consent of the tenant removed the furniture from an upper floor room occupied by the tenant to the first floor, when it was forcibly seized by the defendant’s employees, and returned to the room from which it had been taken. On the same day or the following day the furniture was distrained for rent due the defendant. There was a rule of the building that all furniture and bulky packages should be carried on the freight elevator. Held, (1) that the defendant’s liability, if any, for the conversion, arose before the distress, and therefore plaintiff’s remedy by replevin was not exclusive; (2) that defendant had no right to take the goods from plaintiff’s possession, and return them to the upper room merely because they had been brought down the stairway, and not by the freight elevator; (3) that as the tenant had consented to their removal, the defendant had no right to enforce a rule of the building which was merely intended to protect the tenant from a surrejjtitious removal of the goods by a stranger; (4) that the goods in question having been in the possession of the tenant under a bailment, were not distrainable for rent, inasmuch as they had been redelivered into the possession of the bailor before the distress; (5) that the stairways, elevators and halls of the office building were not a parcel of the demised premises as far as bailors of tenants were concerned; (6) that the bailor was not bound by an agreement between the lessor and the lessee of which he had no notice that the lessees or those claiming under him should not remove the property from the building without the consent of the lessor, when rent was in arrear.
    Argued Oct. 8, 1906.
    Appeal, No. 80, Oct. T., 1906, by defendant, from judgment of O. P. No. 4, Pbila. Co., March T., 1899, No. 1,008, on verdict for plaintiff in case.of Mary T. Walsh et al., Trustees of the Estate of Philip J. Walsh, deceased, v. Philadelphia Bourse.
    Before Ricb, P. J., Porter, . Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover the value of furniture. Before WlLLson, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $24.00. Defendant appealed.

      Error assigned was in refusing to enter judgment for defendant non obstante veredicto.

      Francis 8. Laws, with him John F. Lewis, for appellant.—
    All goods upon leased premises, whether actually owned by a tenant or a stranger, with certain well-defined exceptions, are, as to the landlord, the property of the tenant and liable to a distress for the rent, as well as otherwise subject to his obligations: Karns v. McKinney, 74 Pa. 387 ; Howe Sewing Machine Co. v. Sloan, 87 Pa. 438 ; Kleber v. Ward, 88 Pa. 93 ; Myers v. Esery, 134 Pa. 177; Furbush v. Fisher, 40 Legal Int. 286; Henkels v. Brown, 4 Phila. 299.
    The refusal to permit removal was equivalent to the commencement of the distress for rent: Furbush v. Fisher, 40 Legal Int. 286 ; Wood v. Nunn, 5 Bingham, 10 ; Cramer v. Mott, L. R. 5 Q. B. 357; Hutchins v. Scott, 2 M. & W. 809 ; Grant & McLane’s App., 44 Pa. 477.
    The .appellee had a right to make a distress for rent while the goods were anywhere in the building.
    The action though in form in assumpsit was based upon the alleged wrongful conversion. Such an action cannot.be maintained under the facts in this case, the onty remedy being replevin : Esterly Machine Co. v. Spencer, 147 Pa. 466 ; Brown v. Stackhouse, 155 Pa. 582.

      John F. Gorman, for appellees.
    — “ The landlord should first ascertain whether the goods removed belonged to the tenants, for a stranger or lodger has a right to remove his goods off the premises at any time, or under any circumstances before the commencement of a distress,” citing the following cases: Foulger v. Taylor, 5 H. & N. 202; Thornton v. Adams, 5 M. & S. 38 ; Postman v. Harrell, 6 C. & P. 225; Fletcher v. Marillier, 9 Ad. & Ell. 457; Wood v. Nunn, 5 Bing. 10.
    February 25, 1907:
    The goods were in the possession of their owners, the plaintiffs, and were not on the demised premises at this time : Winslow v. Henry, 5 Hill, 481; Lowell v. Strahan, 145 Mass. 1; Alexander v. Dorsey, 12 Ga. 12 ; McMillan v. Solomon, 42 Ala. 356 ; Kleeman v. Kemmerer, 3 Kulp, 481; Cunningham v. Entrekin, 15 Pa. C. C. Rep. 183; Hancock v. Austin, 14 C. B. (N. S.) 634.
    Before the levy was made the wrong upon which this action is based was done, the jury found by its verdict that these goods were forcibly taken by the defendants from plaintiffs. A right of action then accrued to plaintiffs which they exercised by bringing this action. They were not compelled to wait until the levy and then replevy under the act of 1772; they had a right immediately upon the taking and conversion of their goods to bring this action.
   Opinion by

Rice, P. J.,

The single matter assigned as error is the refusal of the court to enter judgment for the defendant non obstante veredicto.

One Thompson leased from the defendant room 545 on the fifth floor of its office building, to be used as an office for the conduct of a publishing business. The plaintiffs delivered certain articles of office furniture to Thompson, under a contract of bailment, which were placed in this room. As they were authorized to do under the terms of the bailment, as well as with the consent of Thompson, the plaintiffs through their employees subsequently removed these chattels from room 545 to the first floor of the building, and were about to take them out of the door, when they were forcibly taken from their possession by the defendant’s employees and returned to room 545, where, upon the same day or the following, they were distrained for rent due the defendant at the time of the attempted removal, and subsequently sold.

1. The evidence as to the force used was sufficient to warrant the submission of the question of conversion to the jury; it was submitted with appropriate Instructions, and their verdiet must be taken on this appeal as conclusively establishing the fact. This being so, the defendant’s liability, if any, for the conversion arose before the distress, and therefore the cases cited in support of the proposition that the plaintiffs’ exclusive remedy was by replevin do not apply.

2. The defendant had no right to take the goods from the plaintiffs’ possession and return them to room 545 by reason of the fact that they had been brought down the stairway. Even if we assume that the plaintiffs knew of the defendant’s rule that all furniture, bulky packages and freight must be carried on the freight elevator, and were bound by it, there was no occasion to bring it into play after the goods had been brought to the first floor; for obviously a past violation of the rule could not be pleaded in defense of a seizure of the goods which otherwise would be unwarranted.

3. When the case was here before we said, “ we are not prepared to hold that the owner and custodian of an office building like this may not interfere for the tenants’ protection to prevent the surreptitious removal of their goods by a stranger.” Granting that he may temporarily detain them until the right and the identity of the person removing them can be ascertained, the present action cannot be defended upon that ground under the evidence. The goods were being removed by the owner of them, with the consent of the tenant, who had held them under bailment, and this was not being done clandestinely or surreptitiously, but openly. Moreover, the plaintiffs’ manager showed to the secretary of the company the lease of the goods and explained to him why they were being removed, and upon this subject the latter testified: “ I told him Mr. Thompson was in arrears for rent to us and he could not take them out. He showed me a paper, the contents of which I did not read, but I told him it did not make any difference to whom the goods belonged, the man was in arrears for rent, and our lease provided that goods could not be taken out under the circumstances, and he then went downstairs, and I-followed him, and told the men not to permit the goods to go out.” This and other testimony to the same effect clearly warranted the jury in finding that the removal of the goods was not prevented in the enforcement of a reasonable regulation for the protection of the defendant’s tenants, or because the defendant’s officers and employees had any reasonable doubt whether the persons removing them were authorized by the bailor and bailee to do so.

4. The general rule of law makes.all the goods and chattels (with many exceptions not necessary to be noticed here) found on the demised premises subject to distress for the rent thereof. At common law, if the lessor did not find sufficient distress on the demised premises, he could resort nowhere else: 3 Bl. Com. 11. This is still the rule, except as it has been changed by statute so far as to permit the landlord to follow goods of the tenant clandestinely removed; but these statutes do not apply to the goods of strangers, nor to goods in which the tenant may have had a qualified interest as bailee but which have been redelivered into the possession of the bailor before the distress. See Adams v. LaComb, 1 Dall. 440; Ball v. Penn, 10 Pa. Superior Ct. 544, and cases there cited: Sleeper v. Parrish, 7 Phila. 247. The lease from the defendant to Thompson is not printed in full in the appellant’s paper-book; therefore we cannot say distinctly what privileges or rights it gave the lessee outside of room 545. Of course we must assume he had a right of passage by the stairways, elevators and halls, but that, of itself, would not constitute them, and all of them, part and parcel of the demised premises within the meaning of the rule under consideration. See Capel v. Buszard, 6 Bing. 150; Winslow v. Henry, 5 Hill, 481; Pickering v. Breen, 22 Pa. Superior Ct. 4.

5. It is thought that the present case is different because the lease from the defendant to Thompson contained this provision : “ When rent is in arrear, lessee, or those claiming under lessee, shall not remove property from the building without the written consent of lessor. Lessee also agrees that all property on said premises and all property removed therefrom for thirty days after such removal shall be liable to distress for rent.” We fail to see any substantial ground for holding that a third party, so far as concerns his goods, is bound by an agreement, of which he has no knowledge, between the owner of an office building and a lessee of one of its offices, to the effect that no property shall be removed from the building without the writ-hen consent of the lessor, and that all property removed therefrom shall be liable to distress for rent for thirty days thereafter. The tendency of the decisions has been to restrict this summary remedy whereby the goods of one person may be taken for the debt of another; there certainly is no reason in justice for extending by subtlety the right of distraining beyond what the ancient law has established, as was said in Capel v. Buszard, 6 Bing. 150.

Judgment affirmed.

       15 Pa. Superior Ct. 219.


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    Adams v. Adams, Appellant.

      Husband and wife — Agreement of separation — Support—Equity-— Specific performance.

    A valid agreement may be made for an actual and immediate separation between husband and wife, if made upon reasonable terms, and actually carried into effect by both parties in good faith; and equity has jurisdiction specifically to enforce the terms of such an agreement.
    Where a husband and wife, having four children, enter into a written agreement to separate, and the husband in the agreement covenants to pay a certain amount per month for the support and maintenance of the wife and children, the husband cannot, years afterwards, refuse to pay the amount stipulated to the wife for the reason that “the four children are now of mature years, and installed in lucrative positions,” and that the sum named is not now needed for the support of the wife.
    Argued Oct. 9, 1906.
    Appeal, No. 44, Oct. T., .1906,' by defendant, from decree of C. P. No. 4, Phila. Co., Sept. T., 1905, No. 3,381, on bill in equity in case of Louisa Adams v. William H. Adams.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for specific performance.
    The averments of the bill and answer sufficiently appear by the opinion of the Superior Court.
    The case was heard on bill and answer.

      Error assigned was decree of specific performance.

      James M. Dohan, with him Milton M. Cohen, for appellant.
    —Where compensation in money will afford a party complete and efficient relief the law is usually adequate for that purpose, and the plaintiff will be relegated thereto, if the legal remedy is unimpeded: Roland v. Lancaster County Nat. Bank, 135 Pa. 598; Sanderson v. Witmyer, 8 Pa. Dist. Rep. 312; Wistar’s App., 80 Pa. 484.
    February 25, 1907:
    The plaintiff has an adequate remedy at law in assumpsit for money damages; or in proceedings against her husband for nonsupport under the act of 1867.

      W. H. JRedheffer, for appellee
    — When a party has undertaken absolutely to do a thing, he is not excused from liability by the occurrence of events which render the performance of his promise impossible.
    Equity will enforce a contract of separation when it is reasonable and where it has been consummated: Hutton v. Duey, 3 Pa. 100-105; Hitner’s App., 51 Pa. 110-118; Walsh v. Kelly, 34 Pa. 84; Smith v. Knowles, 2 Grant, 413; Speidel’s App., 107 Pa. 18; Scott’s Est. (2), 147 Pa. 102; Biery v. Steckel, 194 Pa. 445 ; Frank’s Est., 195 Pa. 26.
   Opinion by

Oblady, J.,

The parties hereto were married December 21, 1876, and from that date until May 19,1893, they lived and cohabited together as man and wife. On the latter date by reason of disputes and differences they entered into a written contract providing for their living separate and apart from each other. The clause in the articles of separation which is the subject of this controversy is as follows: “ And further that he, the said William H. Adams, shall and will well and truly pay, or cause to be paid unto her, his said wife, for and towards her and the children’s better support and maintenance the monthly sum of $60.00, free and clear of all charges and deductions whatever ; the first monthly payment thereof to be made on the 16th day of June, 1893, and at the end of every month thereafter thence next ensuing as the same shall grow due and become payable.” The husband paid the sum stipulated as it became due until August 16, 1905, and then refused to make further payments.

A bill in equity was filed by the wife, in which she prayed for specific performance of the terms of the contract, and after hearing on bill and answer the court made a decree against the husband for the arrearages due at that date, $360 and directed that the future payments be made according to the stipulations of the agreement. The answer avers that a number of payments for the education and clothing of the'four children were made by the husband in excess of the monthly sum named, and declares a willingness to make such payment to the wife for her own present support, as to his circumstances and her surroundings shall be deemed meet and proper.

It is now firmly settled in this state that a valid agreement may be made for an actual and immediate separation between husband and wife, if made upon reasonable terms and actually carried into effect by both parties in good faith, and when so made such deed is a bar to a proceeding commenced by the wife under the Act of April 13, 1867, P. L. 78, to compel her husband to support and maintain her: Commonwealth v. Richards, 131 Pa. 209 ; Scott’s Estate, 147 Pa. 102; Irvin v. Irvin, 169 Pa. 529; Kaiser’s Estate, 199 Pa. 269; Commonwealth v. Smith, 200 Pa. 363 ; Commonwealth v. Hollinger, 16 Pa. Superior Ct. 199; Rodenbaugh v. Rodenbaugh, 17 Pa. Superior Ct. 619.

For twelve years the husband recognized the binding effect of his covenant. That he voluntarily added to his monthly obligation in payments for the children is evidence of his parental interest in and affection for them, but the terms of the contract were not affected by such payments. The only reason now urged is that under the present conditions the terms are unconscionable for the reason that “ the four children are now of mature years and installed in lucrative positions,” and that the sum named is not now needed for the support of - the wife. These elements were proper for their consideration when the contract was made and should have been anticipated. If, when the sum was agreed upon it was a reasonable one for the proper care and maintenance of the mother and four children, it does not follow that it is not so now, inasmuch as her added years may have materially lessened her capacity to do for herself as well as increased her personal necessities. However, we have nothing to do with this phase of the case as it is not intimated that the terms were not fair when mutually agreed upon and they have been complied with for twelve years without objection. No fraud, coercion or concealment on the part of the wife is suggested by the husband, and if the bargain is a hard one under the present conditions, it is one of his own making and he must be held to its performance: Biery v. Steckel, 194 Pa. 445; Frank’s Estate, 195 Pa. 26. The jurisdiction of the court below to entertain the bill to give the plaintiff such relief as the facts may warrant, is settled by Heckman v. Heckman, 215 Pa. 203.

The decree is affirmed.


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    Phillips v. Allen, Appellant.

      Practice, C. P. — Affidavit of defense — Affidavit made by strange)'.

    When a defendant puts in a stranger’s affidavit of defense, the affidavit must show upon its face sufficient reason why it was not made by the defendant himself; that a real disability existed which prevented him from making it, and the circumstances giving rise to the disability.
    In an action of assumpsit an affidavit of defense was made by a person, who averred that he was the manager for the defendant, but did not say that he was manager át the time of the transactions referred to, nor that they were conducted by him, or in his presence, nor that he had personal knowledge of them. The reason he gave for making the affidavit was that the defendant, on the day of filing the same, was away, and would not return for about five weeks; but the date of his departure was not stated, and the affiant gave no reason why the defendant did not, or could not file the affidavit between the date when service of the summons, statement and rule to file affidavit of defense was accepted, and the date of his departure. The usual formula that the defendant has a true, just, legal and adequate defense to the whole of the plaintiff’s claim, of the following nature and character, was followed by a recital of certain facts which the affiant asserted that the defendant admits and avers, and the affidavit concluded as follows: “All of which facts the defendant asserts to be true to the best of his knowledge, information and belief, and expects to be able to prove at the trial of this cause." Held, that the affidavit of defense was insufficient to prevent judgment.
    Argued. Oct. 9,1906.
    Appeal, No. 1091, Oct. T., 1906, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1906, No. 857, making absolute rule for judgment for want of a sufficient affidavit of defense in case of J. E. Phillips, trading as Phillips, Anderson & Company, v. George W. Allen.
    Before Rice, P. J., Porter., Henderson, Morrison, Or-lady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered.
    The affidavit of defense was as follows:
    William K. Culin, being duly sworn according to law, deposes and says that he is the manager for George W. Allen, defendant in the above case, and that the said George W. Allen, at the present time, is in Jamaica, West Indies, and will not return to this city for a period of about five weeks.
    That the said George W. Allen has a true, just, legal and adequate defense to the whole of the plaintiff’s claims of the following nature and character:
    The defendant admits the purchase and receipt of the several items of merchandise set forth in the copy of plaintiff’s book of original entries, but that the said account was settled and paid for by the defendant in full under the following circumstances, to wit :
    That on or about September 28, 1904, Messrs. S.’ P. G. Anderson and J. E. Phillips, called at the defendant’s place of business for the purpose of adjusting their account, at which time the defendant offered to pay the plaintiff $1,000 in cash and give him two promissory notes, one due October 20, 1904, for $2,244.36, the other due November 20, 1904, for $2,522.50, in full settlement of the said account. This being a deduction of five per cent discount from the gross amount of purchase.
    That the said offer was submitted by Mr. Anderson to the plaintiff, J. E. Phillips, who ratified the same, and in accordance therewith the defendant paid unto the plaintiff, J. E. Phillips, the sum of $1,000, and made and delivered to him the two promissory notes referred to.
    ' That the said notes with interest thereon were paid promptly by the defendant at the time of maturity.
    The defendant further avers that he is not indebted to the plaintiff in the sum of $336.80 nor in any other sum or sums of money whatsoever, and that all claims and demands whatsoever between the said plaintiff and the said defendant were settled in the above-named agreement.
    All of which facts the defendant asserts to be true to the best of his knowledge, information and belief, and expects to be able to prove at the trial of this cause.
    February 25, 1907 :

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Henry J. Scott, for appellant.

      Thomas McConnell, Jr., with him J. Henry Williams, for appellee.
   Opinion by

Rice, P. J.,

Assuming the truth of everything asserted in the affidavit of defense as to what the defendant claims to be his defense, it is, in substance, that a certain sum,in cash and two promissory notes of the defendant payable at future dates (which were paid at maturity) were accepted by the plaintiff in full settlement of the debt then due, amounting to a considerably larger sum. It is not alleged in the affidavit that the notes were so drawn as to be negotiable, and it is argued by the plaintiff’s counsel that the acceptance of a mere nonnegotiable written promise to pay part of an undisputed debt then due, in discharge of the debt, ought not to be regarded as more effectual for that purpose than the actual payment of such part, which, though accepted in full, is concededly not a good accord and satisfaction. It is further argued in support of the judgment that owing to certain other defects in the affidavit the question of the discharge of the debt by accord and satisfaction is not properly before the court for decision. If this position is well taken, it will be unnecessary to consider whether averment of negotiability of the promissory notes was essential in order to bring the case within the principle upon which Mechanics’ Bank v. Huston, 11 W. N. C. 389 was ruled.

The affidavit was made by William K. Culin, who averred that he was the manager for the defendant, but did not say that he was manager at the time of the transactions referred to, nor that they were conducted by him or in his presence, nor that he had personal knowledge of them. The reason he gave for making the affidavit was, that the defendant, on March 21, the date of filing the affidavit, was in Jamaica, and would not return to the city of Philadelphia for about five weeks; but the date of his departure is not stated, and the affiant gave no reason why the defendant did not or could not file the affidavit between March 8, when service of the summons, statement and rule to file affidavit of defense, was accepted on that date. The usual formula that the defendant has a true, just, legal and adequate defense to the whole of the plaintiff’s claim, of the following nature and character, is followed by a recital of certain facts which the affiant asserts that the defendant admits and avers, and the affidavit concludes as follows: “ All of which facts the defendant asserts to be true to the best of his knowledge, information and belief, and expects to be able to prove at the trial of this cause.”

Where an affidavit of defense is made by a stranger to the action, it ought to show whether the facts are averred upon the personal knowledge of the affiant or upon information and belief. No set form of words can be prescribed for doing this; but surely the affiant’s personal knowledge of the facts claimed to constitute the defense in this case cannot be inferred with any degree of certainty from the fact that he was the defendant’s manager at the time the affidavit was made. It may be fairly inferred from the affidavit that the affiant had personal knowledge of what the defefidant asserted and claimed the facts to be, but not that he had personal knowledge of the facts so claimed. It stands on no higher plane than an affidavit specifically stating that he derived his knowledge or information of the facts from the defendant; and viewed in that light it is defective because it does not state his belief or his expectation of the ability of the defendant to prove them upon the trial. See Baum v. Union Surety & Guaranty Co., 19 Pa. Superior Ct. 23, which is directly in point, and Black v. Halstead, 39 Pa. 64, and Safety Banking and Trust Co. v. Conwell, 28 Pa. Superior Ct. 237.

The rule is well settled that the affidavit of defense must be made by the defendant himself, or if there are special reasons why that cannot be done, they must be set forth so that the court may judge of their sufficiency: Mitchell on Motions and Rules (2d ed.), 104. “ The correct rule would seem to be that when a defendant puts in a stranger’s affidavit, it must show upon its face sufficient reason why it was not made by the defendant himself; that a real disability existed which prevented him from making it, and the circumstances giving rise to the disability : ” Griel v. Buckius, 114 Pa. 187; Citizens’ Natural Gas Co. v. Waynesburg Natural Gas Co., 210 Pa. 137 ; Taylor v. Sellers, 12 Pa. Superior Ct. 230. The affidavit under consideration does not come up to the requirements of this reasonable rule.

Judgment affirmed.


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    Kunkel v. Kemper.

      Will — Trusts and trustees — Separate use trust — Spendthrift trust— Foreign attachment.

    The testator bequeathed to his executors “the sum of $50,000 in trust, to invest and keep the same invested in good, interest paying securities, well secured first mortgages on real estate to be preferred when obtainable; to collect and receive the interest and income therefrom and pay the same over to my daughter, in equal quarterly payments during the period of her natural life, for her own sole and separate use and behoof," and upon her decease to pay the income for the maintenance of such issue as may survive her until their arrival respectively at the age of twenty-one, and after such time to pay the said income to such issue personally, and on the arrival of each of said issue at the age of twenty-five to pay to him a proportionate share of the principal. The daughter was married at the date of the will, but was divorced and remarried prior to 1901. A foreign attachment was issued against her in 1904. To another daughter testator bequeathed $75,000 outright. The other provisions of the will indicated no intention to create a spendthrift trust. Held, that a foreign attachment issued against the daughter after her divorce-and remarriage bound the income in the hands of the trustees.
    Argued Oct. .11, 1906.
    Appeal, No. 184, Oct. T., 1906, by William S. Price and Thomas Fort, Jr., Executors and Trustees of Thomas W. Price, deceased, Garnishees, from judgment of C. P. No. 6, Phila. Co., March T., 1904, No. 61, against Garnishees in foreign attachment in case of John A. Kunkel v. Mary Price Kemper.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.

      February 25, 1907:
    Foreign attachment.
    Rule for judgment against garnishees.
    The opinion of the Superior Court states the case.

      Error assigned was in entering judgment for $412.62 against the garnishees.

      Henry Budd, for appellants.
    — Separate use trusts are not confined to life estates. They may be perfectly valid if in fee: Shonk v. Brown, 61 Pa. 320; Hays v. Leonard, 155 Pa. 474; Holliday v. Hively, 198 Pa. 335 ; MacConnell v. Lindsay, 131 Pa. 476; Wright v. Brown, 44 Pa. 224; Samson’s Est., 22 Pa. Superior Ct. 93; Shields v. McAuley, 205 Pa. 45.
    The fact that the interest given to Mrs. Kemper is but the income of the fund expressly for the period of her natural life, is persuasive to the conclusion that Thomas W. Price desired to protect his daughter from something beside the importunity of her husband, and that the trust here considered is not a mere separate use in the technical sense. A technical separate use estate for a married woman does not require to be supported by a trustee, while the absence of a trustee, allowing the cestui que trust to the trustee for himself, is fatal to the existence of a spendthrift trust: Hahn v. Hutchinson, 159 Pa. 133; Wanner v. Snyder, 177 Pa. 208.

      Joseph H. ShoemaTcer, for appellee.
    — The intent to create a spendthrift trust must not be merely discernible, but as the trust is an anomaly in the law, must be unmistakable: King’s Est., 147 Pa. 410; Girard Life Ins. & Trust Co. v. Chambers, 46 Pa. 485; Park v. Mathews, 36 Pa. 28.
    A bequest to be under the control of executors “ to go to the use ” of certain persons “ when necessity requires ” does not create a spendthrift trust: Smeltzer v. Goslee, 172 Pa. 298.
   Opinion by

Rice, P. J.,

The testator bequeathed to his executors “ the sum of $50,000 in trust, to invest and keep the same invested in good, interest paying securities, well secured first mortgages on real estate to be preferred when obtainable; to collect and receive the interest and income therefrom and pay the same over to my daughter, Mary, in equal quarterly payments during the period of her natural life, for her own sole and separate use and behoof,” and upon her decease to pay the income for the maintenance of such issue as may survive her until their arrival respectively at the age of twenty-one, and after such time to pay the said income to such issue personally, and on the arrival of each of said issue at the age of twenty-five to pay to him a proportionate share of the principal. The daughter Mary was married at the date of the will, but was divorced and remarried prior to 1901. This foreign attachment was issued in 1904. The question is whether the income which accrued after her divorce and remarriage was attachable for her debts. The appellants’ counsel concedes that if a mere separate use trust was created, it ceased, as such, upon Mary becoming discovert and did not revive on her remarriage. But he argues that, whatever its other characteristics may be, it is a spendthrift trust. He suggests as a circumstance tending to this conclusion that in making the bequest directly to trustees the testator took a precaution which would have been unnecessary had he desired merely to create a separate use trust. But while the naming of a trustee is not absolutely essential in the creation of a separate use trust, it is wise and not uncommon to name one; and, as the appellee’s counsel says, the testator had reason for doing so because of the continuation of the active trust for those in remainder. Nor does the fact that the right of Mary was strictly limited to her natural life raise an implication of an intention to create a spendthrift trust instead of a mere separate use trust; for although a gift in fee may be subjected to the latter trust it is not necessary to the validity of the trust that the gift be in fee. Comment is made on the fact that the testator gave to Mary the mere income for life of $50,000, and this in trust, and gave to her sister, Mrs. Switzer, $75,000 outright. That he had a reason, satisfactory to himself, for subjecting the one bequest and not the other to a trust is to be assumed; but the difference between the two gifts as to form and amount furnishes no ground for. inference that he intended to protect the gift to the former against her own improvidence as well as against the importunities of her husband, when the words in which he expressed his intention imply no more than the latter. Why the testator made this distinction between his two daughters is matter of speculation; but, as was remarked in a recent case, inability to discover from a perusal of the will the reasons which influenced him to make the distinction is one thing, while to doubt whether the will fully expressed his intention is another and quite different thing: Shoup's Estate, 31 Pa. Superior Ct. 162. As shown by the authorities cited in the opinion of the learned judge below, it is not essential to the creation of a spendthrift trust that the instrument should contain words specifically providing that the income, if that be the gift, shall not be subject to the debts or liabilities of the beneficiary, and in Winthrop Co. v. Clinton, 196 Pa. 472, Justice Green referred to Stambaugh’s Estate, 135 Pa. 585, as “ a remarkable instance of the absence of any such words, or of any of the words ordinarily used to create a spendthrift trust.” Even in that extreme case there were circumstances, partly disclosed by the will itself, tending to show the motive of the testator, and the purpose he had in view in putting the gift of the income to his son Moses in trust, and the consideration of these circumstances turned the scale in favor of the construction which would accomplish that purpose. In this case there is no circumstance, extrinsic or otherwise, to throw light upon the testator’s intention, except the fact that his daughter was a married woman ; but he used words to protect her in the control and enjoyment of the gift to the full extent that such circumstance alone gives rise-to the necessity for such protection. What right have we to assume that he did not consider this all that was required for the purpose he had in mind ? In Winthrop Co. v. Clinton, 196 Pa. 472, the words “ to pay said net income quarter yearly unto my son, Winifield A. Clinton, for his use and support, for and during all the term of his natural life, and not to be liable to anticipation, and his receipt alone to be the sole discharge to my said trustees ” plainly distinguish the case from the present. There evidently was no intention to overrule the case of Girard Life Insurance & Trust Co. v. Chambers, 46 Pa. 485, which is more nearly like the present case, for Justice Gueen took pains to point out the peculiar significance of the gift for “ support ” and the difference between it and a gift for “ his own use and benefit ” and to say that “ a fund which is to be paid to a certain cestui que trust for his own use and benefit is absolutely Ms own, as was held in the case referred to, and therein lies the difference between that case and this.” In Hays’s Estate, 201 Pa. 391, stress was laid on the words, “ shall be paid into their own hands respectively upon their sole receipt therefor ” in the clause creating the trusts for the testator’s daughters. As to the daughter whose share it was attempted to attach Justice Mestrezat said : “ The principal of the fund was not hers and by the plain language of the will, the income could only become hers when it was paid by the trustee into her own hands, and her receipt was given therefor. The instrument creating the trust which is the law of the case, shields and protects the fund from the time it is produced until it is delivered to and accepted by the beneficiary.” hie was speaking of the will then under construction, and we do not understand that it was intended to lay down a general rule that a gift to trustees to pay over the income to a married daughter for her own sole and separate use and behoof is always to be considered as depriving her of the right, which ordinarily attaches to such a gift, to subject it to liability for her debts after she becomes discovert. The language of that will was simply construed to mean what Justice Mestrezat said in the clause of the opinion above quoted. As counsel for appellee says, it was not because the income was to be paid over to the beneficiaries that it could not be attached, but because it was to be paid “into their own hands” upon “ their own receipt,” these words showing the testator’s intention not to permit it to be diverted by any means. The cases cited by the learned judge below show quite clearly that a mere direction “ to pay over ” to the cestui que trust does not imply an intention to create a spendthrift trust. In the absence of apt words for that purpose, it must appear that the donor’s intention would be frustrated by the subjection of the income to the claims of creditors. A conclusion that the testator’s intention would be frustrated unless this be held to be a spendthrift trust would have no substantial foundation.

Judgment affirmed.


author: Rige, P. J.,

text:
    Evans v. Rockett, Appellant.

      ~rsPrindpal and agent — Sale of real estate — Commissions—Serving two masters.

    It is a rule of public policy that an agent for the sale of property cannot at the same time act as the agent for the purchaser thereof, and thus become entitled to compensation from both vendor and purchaser. This rule may be waived by an express agreement between the parties, but such agreement cannot be inferred either from knowledge of the fact that the rule had been violated, or from silence or failure to dissent at the time, or from all these combined. Nothing short of clear and satisfactory proof of an express agreement to waive the rule can be regarded as sufficient for that purpose.
    Argued Oct. 12, 1906.
    Appeal, No. 69, Oct. T., 1906, by defendant, from*judgment of C. P. No. 5, Phila. Co., Sept. T., 1902, No. 1,995, on verdict for plaintiff in case of D. Z. Evans, Jr., v. Thomas T. Rockett.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover commissions for the sale of real estate.
    Ralson, J., charged as follows :
    [The plaintiff brings this action to recover a commission which he claims is due him on a sale of real estate- He tells you that he had an agreement with Mr. Rockett that he should receive from Mr. Rockett two per cent, upon the sale of this property; that he subsequently brought Mr. Rockett and Mr. Walker together, and this resulted in the sale of the property to Mr. Walker for $85,000. He further stated that before making this arrangement with Mr. Rockett he informed him of all the facts and circumstances relating to his agreement-with Walker, by which Walker was to pay him $500, and give him a carriage. If that story is true, Mr. Evans would be entitled to his commissions, which amount to $700, less what he received on account.
    Mr. Rockett says, in the first place, that Mr. Evans never informed him of his agreement to get commissions from Walker until after the transaction was over. Where a real estate broker is acting for a purchaser, he is not entitled to commissions from the seller, unless he informs the seller of his agreement with the purchaser, so that the seller is cognizant of all the facts. If you should find in this case that Mr. Evans concealed from' Mr. Rockett the fact that he was getting a commission from Mr. Walker, he would not be entitled to recover in this-action.] [1]
    Mr. Rockett further says that he had made an arrangement to give Mr. Evans two per cent commission on the sale, but that when he brought him to Mr. Walker’s office, Rockett found that Walker would not pay cash, and offered him notes. He says that he then left Walker’s office with Evans, and said to Evans, “ Are Walker’s notes goods ? ” and Evans said, “ They are,” and he said, “ Well, Mr. Evans, if you will agree to wait for the payment of your commission until Walker’s notes are paid, I will close this transaction.” And he «says that Evans agreed to that, and that on the strength of this conversation with Evans he accepted Walker’s notes. If that story is true, the plaintiff would not be entitled to recover, because the notes have not been paid.
    [You will consider all the evidence in the case, and if you believe the story of the plaintiff, he is entitled to your verdict. If, however, you believe that he did not disclose to Mr. Rockett the fact that he was getting a commission from Walker, or if you believe that he agreed to wait for his commission until Walker’s notes were paid, then your verdict should be for the' defendant.] [2]
    [Gentlemen, if Mr. Evans did not disclose to Mr. Rockett before Rockett agreed to pay him commissions, that he was to get commission from Walker, he cannot recover.] [3]
    Defendant’s points which were declined were as follows :
    1. If, from the evidence, the jury believe that the plaintiff made a contract with Walker, the purchaser, for commissions for the sale of the Wallingford property, he cannot recover against the defendant, and the verdict must be for the defendant. [4]
    3. Under all the evidence the verdict must be for the defendant. [5]
    Verdict and judgment for plaintiff for $789.40. Defendant appealed.

      February 25, 1907 :

      Errors assigned were (1-5) above instructions, quoting them.

      Wayne P. llambo, for appellant.
    — This is the one attempt of plaintiff to show a promise to pay after the defendant knew that plaintiff had agreed to get commissions from the other side. The letter is unavailing : Rice v. Davis, 136 Pa. 439 ; Fulton v. Walters, 28 Pa. Superior Ct. 269.
    The law has set its. face against claims of agents arising in those cases where the agent has been representing both buyer and seller. The cases are numerous and convincing: Everhart v. Searle, 71 Pa. 256 ; Pratt v. Patterson, 112 Pa. 475; Addison v. Wanamaker, 185 Pa. 536.

      J. Hibbs Buekman, of Hopple ‡ Buekman, for appellee.
   Opinion by

Rige, P. J.,

It is conceded that the defendant employed the plaintiff, a real estate broker, to procure a purchaser for certain real estate the defendant desired to sell and agreed to pay him a commission of two per cent, and that the plaintiff procured a purchaser, one Walker, to whom the defendant, after negotiations in which the plaintiff participated, deeded the property. On the trial of this action to recover the commission, the defendant claimed that the plaintiff agreed to wait therefor until the first of several notes given by Walker for the purchase money should be paid, and that these notes were not paid. The plaintiff positively denied that any such agreement was made, and as the question of fact was submitted to the jury with the very instruction the defendant asked in his second point, the verdict for the plaintiff must be regarded as conclusively settling that question so far as review on appeal is concerned.

The second ground of defense relied on at the trial was that the plaintiff made an agreement with Walker, whereby Walker was to pay him a commission for procuring the same real estate for him. That there was such an agreement between the plaintiff and Walker is undisputed. Walker testified that before the transaction between him and the defendant was closed (we quote from 'his deposition) : “ Mr. Evans and myself went out to look at the property, which was some time, of course, previous to 'May 2, and Mr. Evans suggested that the property could be bought on very reasonable terms and that he naturally would help me all he could, and that his commission would be $500 cash and what we call a yellow trap, which at that time was in the stable — a trap with yellow running gears —which I refused to allow him, but I told him that I would pay him the $500.” The plaintiff testified upon the same subject as follows : “ My arrangement with Walker was to give me, I think it was, $500 and some personal property in case the matter went through in a trade arrangement. Q. Five hundred dollars and what ? A. Five hundred dollars and a carriage, or some trade arrangement; I don’t remember exactly what it was.” The exact time that this agreement between the plaintiff and Walker was made is left in obscurity by the testimony, but as it was after the plaintiff had called the property to the attention of Walker, it seems probable it was after the plaintiff had been employed by the defendant. At any rate, there is no such clear and satisfactory testimony as would support a finding that, at the time the defendant employed him, he had any knowledge of any agreement between the plaintiff and Walker. In other words, the defendant did not employ the plaintiff and agree to pay him a commission with knowledge that the plaintiff was already employed by Walker to secure the property, and was to be compensated if he succeeded. But there is testimony which would sustain a finding that the negotiations which resulted in the sale to Walker extended over a considerable period of time, and that before the sale was consummated the plaintiff informed the defendant of his arrangement with Walker above described. And while the testimony does not show that, before the oral agreement for sale was made, the defendant expressly objected (except as such objection may be inferred from his letter of April 12 in which he stated that he considered it a mistake on the part of the plaintiff to ask a commission of Walker), neither does it show that he expressly agreed' to the plaintiff acting for Walker, or expressly waived any legal defense he he had growing out of this agreement of the plaintiff to act for Walker. The nearest approach to proof of such express agreement or waiver is defendant’s letter to the plaintiff of May 9, in which, implying to plaintiff’s letter of the same date, he says : “ I was particular to tell you that I could not assure your commission at once but would pay out of the first money got from the deal and sooner if I had it.” This, it is to be noticed, was after the sale was consummated and was not an unconditional promise, but at most was an admission that he had • made a qualified promise.

It is a rule of public policy that an agent for the sale of property cannot at the same time act as the agent for the purchaser thereof, and thus become entitled to compensation from both vendor and purchaser. This rule, intended to be preventive of the possibility of wrong, rather than remedial of actual wrong done, has been rigidly enforced in transactions of this nature since the case of Everhart v. Searle, 71 Pa. 256, was decided. It is needless to cite the numerous cases in which the doctrine of that case has been recognized and applied. But in Rice v. Davis, 136 Pa. 439, the learned trial judge, while fully recognizing the general rule, thought, and so charged, that the testimony going to show the knowledge of the vendor, who was the defendant in the case, of the fact that the plaintiff was to receive compensation from the purchaser of the property which the plaintiff had been employed by the defendant to sell, and the failure of the vendor to object, would if believed by the jury, take the case out of the operation of the rule. Thus, when the case came into the Supreme Court, the record showed that the question, whether knowledge and failure to dissent would be sufficient to prevent the application of the rule laid down in Everhart v. Searle, was distinctly raised. Hence, what is said in the opinion of the Supreme Court cannot be regarded as mere generalization not necessary to the decision, but must be regarded as a distinct, emphatic and binding statement of the rule of law applicable to such a state of facts. After stating that the general principle underlying the case that an agent for the sale of property cannot at the same time act as agent for the purchaser thereof, and thus entitle himself to compensation from both vendor and vendee, is founded on the infallible declaration that “ no -man can serve two masters,” and showing the parallel between the case in hand and Ever-hart v. Searle, Justice Stebjrett said: “ Conceding, for the sake of argument, that it would be competent for persons, circumstanced as the parties in this case were, to waive or suspend, by mutual agreement, the operation of a rule of public policy, it cannot be successfully contended that such agreement may be inferred either from knowledge of the fact that such rule has been violated or from silence or failure to dissent at the time, or from all these combined. Nothing short of clear and satisfactory proof of an express agreement to do so should be regarded as sufficient for that purpose.” He then goes on to say that there appeared to be no evidence that would warrant either the court or jury in saying that the rule insisted on by the defendent was waived by him. “ He had a right to be silent, even if he knew that the plaintiff had undertaken to serve two masters, and intended to claim compensation from both.” In concluding the opinion he says: “ Rules of law', such as that under consideration, intended to be preventive of the possibility of wrong, rather than remedial of actual wrong, should, be rigidly enforced, unless it clearly appears that the parties, for whose protection they were intended, have, with full knowledge of all the circumstances, agreed to waive their rights thereunder.” The judgment was reversed without a venire. This language was reiterated in Finch v. Comrade’s Executor, 154 Pa. 326, and in the recent decision of our court in Marshall v. Reed, 32 Pa. Superior Ct. 60, and we know of no case in which the statement of the general rule has been modified or qualified in the slightest degree.

Applying these principles to the case in hand, we are constrained to say that even if the instructions quoted in the first, second and third assignments were not erroneous as far as they went, they did not go far enough to give to the jury a full statement of the rule of law applicable to the case, and we do not see that the defect was cured in other portions of the charge. This may have been due to a misapprehension of the plaintiff’s testimony. .As we understand it, he did not swear that he told the defendant of his arrangement with Walker, “ before making his arrangement with Mr. Rockett,” but only that he told him before the deal was consummated. Unexplained, these instructions to which we have alluded might have been taken by the jury to mean that the controlling questions were, first, whether the plaintiff had agreed to wait for his commission; second, whether the plaintiff disclosed to the defendant, or concealed from him, the fact that he was getting a commission from Walker. The jury, as we have seen, could well find that he did not conceal the fact, and that the defendant knew it before the sale was fully consummated, and their verdict for the plaintiff may have been based upon their supposition that this being so, no sufficient defense had been made out. The first and second assignments are sustained.

But the request for binding instructions, which was refused, raises distinctly the question whether there was such waiver of the rule of public policy as was required in order to enable the plaintiff to recover. We are constrained to hold that a mere qualified promise, such as that referred to in the letter of May 9, which promise was not made until the transaction was completed, is not sufficient to take the case out of the operation of the rule so clearly expressed in Rice v. Davis. Therefore the point should have been affirmed.

Judgment reversed.


author: Beaveb, J.,

text:
    Dwight v. Singer, Appellant.

      Promissory notes — Sale of collateral — Fraud.
    Where the holder of a promissory note sells the collateral at public sale after notice to the maker, and at the sale buys in the collateral under authority given by the note, and subsequently sues the maker for the balance after deducting the price bid for the collateral, he is entitled to binding instructions in his favor, where there is no evidence whatever of any fraud committed by him in the transaction.
    Argued Oct. 15, 1906.
    Appeal, No. 115, Oct. T., 1906, by defendant, from judgment of O. P. No. 1, Phila. Co., Sept. T., 1903, No. 498, on verdict for plaintiff in case of Stanley Dwight v. William F. Singer.
    Before Rice, P. J., Pouter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a.promissory note. Before Beitler, J.
    The opinion of the Superior Court states the case.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $595.53. Defendant appealed.

      Error assigned among others was in giving binding instructions for plaintiff.

      February 25, 1907 :

      Trevor T. Matthews, for appellant.

      Henry IF. Wessel, with him Alfred Aarons, for appellee.
   Opinion by

Beaveb, J.,

The sufficiency of the affidavit of defense in this case when it was before us: Dwight v. Singer, 27 Pa. Superior Ct. 119, was upheld on the ground that the affidavit distinctly alleged that the sale of the stock held as collateral for the note upon which the suit is founded was' not bona fide, and was made for the purpose of defrauding the defendant of the real value of the stock so held.

On the trial of the case, the defendant failed utterly to make good his allegations in this behalf. The plaintiff, a year after the maturity of the note, for which he held the stock in question as security, gave notice in writing to the defendant, the receipt of which is not denied (the notice having been produced at the trial by the defendant), that the security held as collateral for the payment of the note would be sold at public auction by an auctioneer at a time and place distinctly set forth in the notice. At that sale, held according to the notice, the plaintiff became the purchaser, as was his right, under the terms of the collateral note. It was not shown that the plaintiff had any knowledge of the value of the stock, nor of the sales which the defendant alleged had been made privately, at or about the time of the public sale. The charge of fraud, therefore, failed entirely.

The evidence of the price at which the said stock sold by the defendant or others who were members of “ the close corporation,” at or about the time of the public sale, as contained in the defendant’s offer, was irrelevant and immaterial, and was properly excluded by the court.

The case was fairly brought out in the testimony, and the court very properly said at its close : “ There is no defense in this case.”

The evidence discloses none, and we think judgment was very properly rendered for the plaintiff, for the balance of the note, after deducting the net proceeds of the sale of the stock held as collateral security therefor.

Judgment affirmed.


text:
    Philadelphia, Appellant, v. Manderfield.
    February 25, 1907:

      Municipal lien — Farm property — Rural property — Question for jury.

    Where on the trial of a scire facias sur municipal lien a controversy arises as to whether the land should be classed as rural or city property, the test to be applied depends upon the conditions existing at the time when the improvement was made, and not at the time when the ordinance authorizing it was enacted, or at the time the issue founded on the lien is tried in court. The determination of the question depends largely upon the special circumstances of each ease, and is for the jury.
    Argued Oct. 16, 1906.
    Appeal, No. 122, Oct. T., 1906, by-defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1900, No. 38, on verdict for defendant in ease of City of Philadelphia v. John R. Manderfield.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur municipal lien for water pipe. Before Willson, P. J.
    The opinion of the Superior Court states the ease.
    Verdict and judgment for defendant.

      JError assigned was in giving binding instructions for plaintiff.

      Francis M. McAdams, with him James Alcorn, assistant city solicitor, a,nd John L. Kinsey, city solicitor, for appellant.

      Alfred I. Phillips, for appellee.
   Opinion by

Orlady, J.,

In June, 1900, the city filed its lien, |490, for laying water pipe in the bed of Wyoming avenue in front of premises owned at that time by John R. Manderfield. A scire facias was issued thereon in 1905, and the cause came on fpr trial in 1906, the defense being that the property covered by the lien was farm or rural property, and was not subject to assessment according to the foot front rule. On the trial the only question in controversy was whether the land should be classed as rural or city property. This was fairly submitted to the jury, who returned a verdict for the defendant. The test of liability to lien in such a case depends upon the conditions existing at the time when the improvement is made, and not at the time when the ordinance authorizing it is enacted, or at the time the issue founded on the lien is tried in court: Keith v. Phila., 126 Pa. 575 ; Philadelphia v. Gorgas, 180 Pa. 296.

“ It is very difficult to give a clear and satisfactory definition of what is to be considered rural property in contradiction from city property, so as to exempt from liability to assessments for street improvements. Generally spehking, the inquiry as to what is rural and what is urban property, within the meaning of the law, is one to which no hard and fast rule can be safely applied. It necessarily depends largely upon the special circumstances of each case-: ” McKeesport v. Soles, 178 Pa. 363; Philadelphia v. Dobbins, 24 Pa. Superior Ct. 136. In rural neighborhoods the foot rule is not applicable and cannot be constitutionally applied. The question whether the property charged is urban or rural is one of fact and usually for the jury: McKeesport v. Soles, 165 Pa. 628; Norristown v. Fornance, 1 Pa. Superior Ct. 129 ; Philadelphia v. Weaver, 14 Pa. Superior Ct. 293. While the evidence in this case in regard to the character and surroundings of the property was conflicting, a different verdict than the one returned by the jury would have been against its manifest weight, and the whole question was so fully and fairly submitted by the trial judge that-, the plaintiff did not except to his charge.

The judgment is affirmed.