author: Henderson, J.,

text:
    Buchanan, Appellant, v. Dawson.

      Vendor and vendee — Suit for purchase money — Prior agreements — ■ Fraud — Evidence.
    In an action by a vendor to recover the balance of purchase money, where it appears that the vendee had given a bond to secure such balance, and at the same time had accepted a deed of general warranty, he cannot set up as a defense a prior written agreement not produced, and whose existence is denied by the plaintiff, alleging that the vendee was not to pay interest until a certain incumbrance was removed, and it appears that the vendee knew of the incumbrance, and the bond stipulated for interest, and the vendee does not allege that there was any fraud, accident or mistake, or that he was induced to sign the bond by reason of any alleged written or parol agreement.
    A deed constitutes the final agreement between the vendor and vendee, and is presumed to supersede all other agreements different, therefrom.
    Argued May 13, 1907.
    Appeal, No. 11, April T., 1907, by plaintiffs, from judgment of C. P. Beaver Co., June T., 1902, No. 207, on verdict for plaintiff in case.of John M. Buchanan for use of Edward J. Allison, Cashier, now for use of William Morrow v. Thomas C. Dawson.
    Before Rice, P. J,, Henderson, Orlady and Beaver, JJ.
    Reversed,

      Issue to determine liability under a judgment entered on a bond. Before Holt, P. J.
    At the trial when the defendant was on the stand the following offer was made:
    Mr. Weyand: We propose to ask the witness on the stand if anything was stated in the agreement as to when the deed was to be delivered, and that no rent or interest was to be paid until the delivery of the deed; this for the purpose of showing that no interest or rent was to be charged until the deed for the property free of incumbrance was delivered by John M. Buchanan to the witness.
    Objected to, (1) as suggestive of an answer; (2) as leading ; (3) as incompetent and immaterial, the witness having already testified what the agreement contained; (4) and that anything said outside cannot vary a written agreement for the sale of land, for the reason that agreements for the sale, by the statute, must be in writing; and the variations must have the like solemnity.
    The Court: With the understanding that you will follow this up closely, we overrule the objection, permit the question, and seal a bill of exceptions to the plaintiff. [1] (Question read to witness.)
    The Court (To the witness) : Answer now to nothing except what was written in the agreement; any verbal matter that was not placed in the agreement by writing you cannot give ; only such things as were written in the paper.
    Question read to witness.
    “ A. The agreement did not state when he was to give me the deed, but I was tq make the first payment upon receipt of the deed, free of all incumbrance, and to have free use of it in the meantime.”
    The court charged in part as follows :
    One of the important matters for you to determine, gentlemen, is whether there was written agreement between Mr. Buchanan and Mr. Dawson for the purchase of this property, in which was written a provision that the defendant should not be required to pay any interest, or rent, upon the property, until such time as a deed free of all incumbrance should be made. That is the first question for your determination, gentlemen.

      October 7, 1907:
    Now, gentlemen, if you find that such an agreement did exist, and that it was an agreement in writing, because there is no evidence before you of an agreement not in writing, or a parol agreement, but if you find that there was an agreement in writing containing a provision that the defendant was to occupy the property free until a deed free from incumbrance should be made, then we say to you that under the law the defendant would not be liable for interest, up until the time of the making of the deed. We further say to you, as matter of law, gentlemen of the jury, that upon the execution and delivery of that deed, and acceptance of it by the defendant and the occupation of the property under it, the defendant accepting it under the belief that the lien had been removed, and if Mr. Buchanan believing that the lien did not exist any longer, made the deed, that changed the relations of the parties ; and the defendant would be required under the law, if he kept the deed, and the possession of the property, to pay interest from that time until the present date on that bond. And if you find that the agreement which he sets up did exist —an agreement in writing that he was to be relieved until the deed was made, then under the law he would have to pay interest from April 1, 1900, according to the stipulation of the bond, down to the present time, notwithstanding the existence of the incumbrance. [2]
    Verdict and judgment for plaintiff for $1,113.30. Plaintiff appealed.

      Errors assigned were (1, 2) above instructions, quoting them; (3) refusal to give binding instructions for plaintiff for full amount of the debt, interests and costs.

      James L. Hogan, with him J. E. Reed, for appellants.

      Forest Gr. Moorhead, with him Edwin S. Weyand, for appellee.
   Opinion by

Henderson, J.,

The bond out of which this litigation arises was given by the defendant to the legal plaintiff on May 3, 1902, to secure the purchase money of a farm for which a deed of general warranty was that day delivered by the plaintiff to the defendant, The execution of the obligation is not denied, nor is the liability of the defendant for the payment of the principal of the bond disputed. The contention is about the payment of interest and costs. Tlie defendant alleged that he entered into a written agreement with the plaintiff for the purchase of the land in the-fall of 1899; that there was a mortgage lien then on the property and that it was agreed between him and the plaintiff that he should enter into possession of the premises and have the free use of the property and that no interest should be charged until a deed was delivered free from incumbrance. No agreement of the kind alleged by the defendant was produced at the trial and its existence was denied by the plaintiff who claimed the negotations were oral up to the time the deed and bond were executed. The court submitted to the jury the question whether there was a written agreement of the character claimed by the defendant, with the instruction that if they found that such a contract existed the defendant would not be liable for interest until the time of making the deed. If it be conceded that there was sufficient evidence to warrant a conclusion of the existence of the contract set up by the defendant, the instruction given by the court had not due regard to the effect of the delivery of the deed and bond, May 3, 1902. These instruments constituted the final agreement of the parties on the subject and are presumed to supersede any other agreement different therefrom and are to be considered the obligation by which the parties consented to be bound. Crotzer v. Russel, 9 S. & R. 78; Moser v. Miller, 7 Watts, 156; Gangloff v. Smaltz, 18 Pa. Superior Ct. 460; Krueger v. Nicola, 205 Pa. 38, and many other cases hold that the deed of conveyance being the last act of the parties overrules all previous agreements between them in any way contradictory thereto. The defendant’s obligation bound him for the payment of interest from April 1, 1900. The agreement set up left the date from which the payment of interest was to be computed indefinite. The provision of the bond, therefore, superseded any previous stipulation or arrangement on that subject. It is not sho wn th at any fraud was perpetrated by the plaintiff in procuring the execution of the bond. The defendant’s own evidence shows that he knew of the existence of the incumbrance and accepted the deed with knowledge of that fact. In order to avoid the effect of the obligation it was incumbent on the defendant to prove fraud, accident or mistake in its execution and to do that by clear, precise and indubitable evidence. The only evidence offered tending to vary the terms of the obligation or to relieve the defendant from its literal effect, was the plaintiff’s testimony and it falls far short of exhibiting grounds for equitable relief. There is no pretense that the bond was signed without a full understanding as to its legal effect or that any misrepresentation was made as an inducement to the defendant to sign it, or that it was signed on the strength of a contemporaneous parol agreement without which it would not have been executed, or that any artifice or fraud was practiced by the plaintiff as the result of which it was delivered. The defendant contracted to pay the purchase money in the manner set forth in the obligation. His undertaking is under seal and he has not shown any facts which relieve him from the burden it cast upon him. The title to the land vested in the defendant when the deed was delivered, and the consideration secured by the bond was not only the purchase money but interest from April 1, 1900. The defendant went into possession and enjoyed the profits of the land, the incumbrance was extinguished before the trial of the cause and it would be inequitable if the defendant should have both the land and the purchase money and not be accountable for either. Moreover, there was no attempt on the defendant’s part to rescind the contract because of the existence of the incumbrance, nor a tender of a reconveyance of the land at any time. He had the use of the land and has a clear title. The plaintiff was, therefore, entitled to an unqualified affirmation of the point asking-binding instructions in favor of the plaintff for the amount due as indicated by the bond on which the judgment was entered.

The judgment is reversed and a new venire awarded.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Boyd to use, Appellant, v. Boyd.
    October 7, 1907:

      Judgment — Payment—Question of fact — Case for jury.

    On the trial of an issue framed upon an opened judgment, where the defense is payment, and this is a pure question of fact, a verdict and judgment for the defendant will be sustained, if it appears that the issue involved was properly submitted to the jury.
    Argued May 18, 1907.
    Appeal, No. 160, April T., 1907, by plaintiff, from judgment of C. P. Beaver Co., on verdict for defendant in case of George Boyd to use of William M. Lance, administrator c. t. a. of Jane Boyd, deceased, v. Pressly Boyd.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Issue to determine whether anything was due upon a judgment. Before Holt, P. J.
    The opinion of the Superior Court states the case.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were various rulings on the evidence and instructions.

      J. H. Cunningham and Frank H. Laird, for appellant.

      James L. Hogan, with him P. M. Smith and John M. Buchanan, for appellee.
   Opinion by

Orlady, J.,

After a full hearing in the court below upon a petition, answer and depositions, a judgment against the defendant was opened and he was permitted to make defense thereto. A trial before a jury resulted in a verdict for the defendant from which the plaintiff appealed. The judgment was founded upon a single bill, signed by the defendant, dated September 3,1898, and payable one day thereafter for $907.24. The plea to the issue was payment, payment with leave, etc.

The defendant’s contention was that the note was given as a receipt or instrument in writing to the plaintiff, his brother, in Columbiana county, Ohio, to be held as evidence of the amount which was due from the defendant to George Boyd as administrator of the estate of a deceased brother, until such time as a formal receipt for $888 (the amount which it was alleged was due to George Boyd) should be entered of record upon a judgment which Pressly Boyd held. against. George Boyd, which was for $1,600, and was of record in tire court of common pleas of Washington county, Pennsylvania. To support this, there was properly in evidence a written agreement dated April 5, 1898, and signed by George Boyd and Pressly Boyd in relation to the disposition of this $888; the testimony of two witnesses to the agreement as to what occurred when it was signed; the testimony of a justice of the peace who was present when the note was signed and delivered and who made the calculation for them, by computing the interest on the sum $888, to the date of the note, to wit: $19.24, which was added to the principal, making $907.24, the amount of the note in suit. This -was followed by proof of the entry of a credit on a revival of the Washington county judgment for $888 on March 5, 1901, as of the date of April 1, 1898. The plaintiff alleged that the note was an independent transaction and the dispute was purely one of fact, which a jury alone could dispose of; and to that tribunal it was fairly and adequately submitted. The plaintiff did not ask for binding instructions on the ground that there was not sufficient evidence to warrant a finding against him, but conceded in the point he did present, that the question was for the jury, and requested an instruction conceding that the plaintiff was entitled to recover, “ unless the jury find, under all the evidence, that the note was paid after the date of September 4, 1898.” This fact of payment was found by the jury, and the verdict means that the several writings and agreements between the brothers, taken with the final entry of the credit on the judgment in Washington county, formed a continuous transaction relating to the same subject-matter of which the note in suit was but a part or link. The agreement of April 5, 1898, was not in contradiction of the note but in explanation of it; and, taken with the testimony of the two persons who signed it as witnesses, and the justice of the peace who ascertained its amount, it fully and clearly illustrated the importance of reducing such an understanding to writing. The case was clearly one for a jury, and the only issue was, whether the note had been in fact paid. A careful examination of all the assignments of error convinces us thát the trial of the case was free from reversible error.

The judgment is affirmed.


author: Henderson J.,

text:
    Chambers v. Braddock Borough, Appellant.

      Negligence — Borough—Unsafe sidewalk — Country road — Road law— Contributory negligence.

    A highway may be maintained as a country road within a borough or city in districts not built up or thickly settled. Where a portion of such highway is actually used by the public, the municipality must maintain such portion in a reasonably safe condition for vehicles and pedestrians, and this duty extends not only to the cartway, but also to the sidewalks.
    A borough may be charged with negligence in failing to keep a sidewalk in repair, where it appears that a defect in the sidewalk was at a point where the cartway was a country road, although a borough highway, that at the point in question the road was thiclcly built up, that the sidewalk was much frequented, and that there was no sidewalk on the other side of the street.
    In such a case where it appears that the highway was rough and uneven, and the defect in the sidewalk not manifestly dangerous, the court cannot say as a matter of law that a person injured by reason of the defect was guilty of contributory negligence. This question is for the jury.
    Where the danger is so great and apparent that a person of ordinary prudence would regard the situation as dangerous, and, therefore, avoid it, the court should say as a matter of law that the person taking the risk to his damage, is guilty of contributory negligence; but this can only be done in clear cases.
    In an action against a borough to recover damages for personal injuries sustained by a fall on a defective sidewalk, the plaintiff testified that he was going from a store to his home between nine and ten o'clock at night; that he took several steps on the boardwalk, and as he placed his right foot on a plank the plank flew up and struck him in the right groin; his -right foot slipped off the end of the plank into the gutter, as a result of which he was thrown forward on the end of the plank into the gutter and street. It appeared that the walk was constructed of stringers and cross planks. The stringers were decayed, and the planks rested on the ground in places. The walk was higher than the gutter and the street. Held, that the case was fór the jury.
    Argued May 7, 1907.
    Appeal, No. 213, April T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T.-, 1903, No. 76, on verdict for plaintiff in case of Thomas Chambers v. The Borough of North Braddock.
    Before Rice, P. J., Henderson, Orladx, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Young, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,500. Defendant appealed.

      Error assigned among others was refusal of binding instructions for defendant.

      William Yost, for appellant.—
    The duty of the borough was a mixed question of law and fact: Monongahela City v. Fischer, 111 Pa. 9; Com. v. Shoemaker, 14 Pa. Superior Ct. 194; Worrilow v. Upper Chichester Twp., 149 Pa. 40 ; Auberle v. McKeesport City, 179 Pa. 321; Wall v. Pittsburg, 205 Pa. 48; Perkins v. Inhabitants of Fayette, 68 Me. 152; Emery v. Philadelphia, 208 Pa. 492; Brassington v. Mt. Carmel Borough, 24 Pa. Superior Ct. 318.
    The court took the facts from the jury and determined the borough’s duty as a question of law, which was error. The improvement of the side and footwalks of a pre-existing country road rests in the discretion of the council: McArthur v. Saginaw City, 58 Mich. 357 (25 N. W. Repr. 313) ; Easton Borough v. Neff, 102 Pa. 474; Fair v. Philadelphia, 88 Pa. 309; Collins v. Philadelphia, 93 Pa. 272.
    The cause of the accident is not disclosed by the evidence: Rotsell v. Warren Borough, 10 Pa. Superior Ct. 283.
    There was contributory negligence of the plaintiff: Monongahela City v. Fischer, 111 Pa. 9 ; Hentz v. Somerset Borough, 2 Pa. Superior Ct. 225; Hill v. Tionesta Twp., 146 Pa. 11 ; Auberle v. McKeesport, 179 Pa. 821.
    October 7, 1907:

      Joseph F. Mayhugh, for appellee.
    The case was for the jury: Shaffer v. Harmony Boro., 204 Pa. 339; Allen v. Dubois Borough, 181 Pa. 184; Steak v. Allegheny City, 213 Pa. 573; Rick v. Wilkes-Barre, 9 Pa. Superior Ct. 399; Folsom v. Town of Underhill, 36 Vt. 580; Wall v. City of Pittsburg, 205 Pa. 48.
   Opinion by

Henderson J.,

The defendant took the position at the trial that it was not liable for the injury complained of because it had only maintained that portion of the road where the plaintiff was hurt as a country road and that, therefore, no obligation rested upon it to maintain or repair any sidewalk thereon. ' The borough was incorporated in April, 1897. For a long time prior thereto a public road had existed in the incorporated territory extending from the borough of Braddock to the north line of the new borough and beyond. On September 5, 1898, an ordinance was adopted giving the name of Jones avenue to this street, fixing its line, establishing its grade and increasing its width. Afterward the street was paved and sidewalks were constructed up to the line of the lot in front of which the plaintiff was hurt. The portion of the street extending northwardly beyond that had not been improved by the borough, the only work done thereon having been the cleaning of the gutters. A sidewalk had been constructed on one side of the street by private subscription before the borough was incorporated, and it was on this sidewalk that the accident occurred. The court instructed the jury that the borough having taken this street within its. territory and the board walk being within the boundary of the street the duty rested upon the borough to keep it in a safe condition for public travel. The defendant contends that this instruction was erroneous, that the portion of the street referred to was kept in all respects as a country road and that the duty of maintaining it was of much lower degree than in the case of city streets. It is undoubtedly true that a highway may be maintained as a country road within a borough or city in districts not built up or thickly settled. Such highways are not required to be kept in as smooth and convenient condition for travel as is necessary in localities where there is much travel and a thickly settled population: Monongahela City v. Fischer, 111 Pa. 9; Wall v. Pittsburg, 205 Pa. 48; Emery v. Philadelphia, 208 Pa. 492; Com. v. Shoemaker, 14 Pa. Superior Ct. 194. The case first cited takes the most advanced position on this subject and was said in Corbalis v. Newberry Twp., 132 Pa. 9, to be a very close one, depending largely upon.its own facts. An examination of these cases will show, however, that no one of them relieves a municipality from maintaining that portion of the road which is used for travel in a reasonably safe condition for vehicles and pedestrians. They only decide that it is not incumbent on the borough or city to maintain the street in safe condition throughout its full width. This is clearly shown in Monongahela City v. Fischer, supra. The place of the accident there was at the extreme edge of the city on what was in fact a country road. The defect complained of was the absence of a guard rail at the brink of an approach to a culvert. The culvert and approach were well constructed, of adequate width and this was held to be a sufficient discharge of duty by the city, taking into consideration the locality. The case clearly decides, however, that the defendant was responsible for the condition of as much of the road as was reasonably necessary and convenient for the use of the public. No case has been brought to our attention which relieves a borough or city from maintaining in a reasonably safe and smooth condition the traveled part of a public highway over territory which has been incorporated into it. In the closely built up portions of such a municipality it is the duty of the authorities to keep the entire street and sidewalks in a safe condition. How far improvements shall be extended on a street maintained as a country road in a borough or city must necessarily depend upon municipal discretion, but this discretion does not amount to permission to omit the maintenance of the way already in existence to the extent necessary to keep it reasonably safe for public use. The street now called' Jones avenue was laid out by the court of quarter sessions of Allegheny county as a public highway in 1834 and has presumably been in continual use from that time as a public road. The conformation of the ground rendered it expensive and difficult to open it to its full width, but it had a well-defined cartway and footpath and after the incorporation of the borough it was accepted as a public highway by the action of the borough authorities in widening it and establishing its grade, as well as in the improvements made in paving and curbing in the immediate vicinity of the place where the accident occurred and southward : Steel v. Huntingdon Borough, 191 Pa. 627. By the incorporation of the borough the road passed from the control of the township and the duty of maintenance rested upon the borough, and this irrespective of the question whether the street was a country road or located in a built-up portion of the borough. But the uncontradicted evidence leaves no doubt that the place where the plaintiff was hurt was in a built-up and thickly settled portion of the town. Mr. Vance, president of the borough council and a witness for the defendant, testified that on the lower side of the road there were houses on each of the adjoining lots and that they might average twenty-five feet apart taking it all the way through. He also testified that the road was thickly built up, especially on the east side. It was further shown both by the plaintiff’s and the defendant’s evidence that the usual course of travel by pedestrians was over the sidewalk. The roadway was narrow, the street, steep and there was a sidewalk only on one side of the wagon-way. The uncontradicted evidence shows also that a great many people passed over the sidewalk and that several hundred lived on the upper part of, and close to, the street and used it in going to the lower part of town. The sidewalk remained in use nearly five years after the borough was incorporated before the defendant was hurt. The public was permitted, and by its presence invited, to walk over it and we are without convincing reason for exempting the municipality from the result of its omission to keep it in suitable repair. That it was in bad condition is shown by all of the evidence on the subject and is not disputed by the appellant. We think it clear from the evidence that the court was not in error in instructing the jury, as complained of in the first and third assignments of error, that the duty rested upon the borough to keep the street and sidewalk there existing in a safe condition for public travel.

It is contended, however, that the plaintiff was guilty of contributory negligence in passing over the walk with a knowledge of its defective condition. Under the evidence this is a question of fact which was submitted to the jury with appropriate instructions. It was the duty of the plaintiff to use such care as a prudent person would have used under similar circumstances. The measure of this duty is ordinary care. This would vary with the circumstances. The case as presented by the evidence was not one which would have justified the court in declaring as a matter of law that the plaintiff was guilty of contributory negligence. The fact that the walk was used every day by many persons is some indication that it was not considered so obviously dangerous that a person ought not to walk thereon and the plaintiff testified that in passing over it at .the time of the accident he observed nothing that indicated danger at the place where he was hurt. There was no pavement on the opposite side of the street and there is evidence t'o show that the wagonway was rough and uneven because of the action of the water and the presence of stones in the road. It does not appear to have been so manifestly dangerous that the court should have said it ought to have been •avoided. It is not necessarily a negligent act for a person to use a walk or street in a city, which is out of repair. It is for the jury to say whether the person injured is guilty of negligence where it appears from the evidence that the defective condition is such that the street might be used safely by the exercise of reasonable care. Where the danger is so great and apparent that a person of ordinary prudence would regard the situation as dangerous and, therefore, avoid it, the court should say as a matter of law that the person taking the risk to his damage is guilty of contributory negligence; but this can only be done in clear cases: Borough of Easton v. Neff, 102 Pa. 474; Allen v. DuBois Boro, 181 Pa. 184; Mellor v. Bridgeport Borough, 191 Pa. 562; Steck v. City of Allegheny, 213 Pa. 573; Rick v. Wilkes-Barre, 9 Pa. Superior Ct. 399.

It is further argued that the cause of the accident is not • disclosed by the evidence. The position of the appellant . seems to be that unless the plaintiff shows just how the injury could be produced by the occurrence out of which it grew, a case is not made out. The plaintiff stated that he was going from a store to his home between nine and. ten o’clock at night; that he took several steps on the board walk, and as he placed his right foot on a plank the plank flew up and struck him in the right groin; his right foot slipped off the end of the plank into the gutter, as a result of which he was thrown forward on the end of the plank into the gutter and street. This is probably as clear a description of the accident as a person could be expected to give. The walk was constructed of stringers and cross planks. The stringers were decayed, and the planks rested on the ground in places. The walk was higher than the gutter and the street, and it is not incredible that the end of the plank was thrown up by the weight of the plaintiff and that he fell as he states. Whether the injury resulted from the stroke of the board when it was thrown up or from the fall which he sustained he perhaps does not know. The case is quite different from Rotsell v. Warren Borough, 10 Pa. Superior Ct. 283, cited by the appellant. In that case the plaintiff did not know what was the cause of the injury, nor how it happened. Under such circumstances the jury could not be permitted to return a verdict as the result of a pure conjecture. After a careful review of the case we are of the opinion that the assignments are not sustained.

The judgment is affirmed.


author: Rice, P. J.,

text:
    In re Ira F. Mansfield, Receiver.

      Auditors — Compensation—Day’s work — Act of June 4, 1879, P. L. 84.
    While the appellate courts will not reverse the action of the lower court in the matter of the compensation of auditors unless error clearly appears, yet they are bound to do so in obedience to the statute, where the allowance cannot be sustained unless it be presumed from an inspection of the report that the auditor was necessarily engaged a certain number of days in the performance of his duties, and such presumption would be beyond the bounds of reason.
    An allowance of $500 to an auditor will be reversed where it appears that only six meetings were held, that seventy-three pages of typewritten testimony were taken, and all apparently at one meeting, that no difficult legal question or computation was required, and that there was nothing to show how long it took the auditor to prepare his report. In such a case the record will be remitted to the court below to ascertain and fix the fee at the rate of $10.00 per day for each day, that the auditor was necessarily engaged in the performance of his duties, unless special cause be shown to the satisfaction of the court for allowance of a higher rate of compensation, not exceeding $15.00 per day.
    October 7,1907 :
    Argued May 14, 1907.
    Appeal, No. 187, April T., 1907, by Mary F. Huth, from order of C. P. Beaver Co., Dec. T., 1906, No. 1, allowing auditor’s fee, In re Distribution of the Balance shown by the First Partial Account of Ira F. Mansfield, Receiver of the Point Bottle Works Company.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Exceptions to auditor’s report.
    From the record it appeared that Mary F. Huth excepted to the allowance of $500 to the auditor as excessive. Hodt, P. J., dismissed the exceptions.

      Eri'or assigned was in dismissing the exception.

      Edwin S. Weyand, of Weyand £ Moorhead, for appellant,
    cited: Stockdale v. Maginn, 207 Pa. 226.

      Frank E. Reader, with him Marry Oalhoon, for appellee,
    cited: McCann’s App., 6 Sadler, 15; Lazarus’ Est., 6 Kulp, 53.
   Opinion by

Rice, P. J.,

The only question raised upon the argument of this appeal is as to the allowance of a fee of $500 to an auditor appointed to make distribution of the balance ($15,810.79) in the hands of a receiver as shown by his first partial account. It is not disputed that the decision of the question is controlled by the Act of June 4, 1879, P. L. 84, which provides that the compensation of auditors “ shall not exceed ten dollars for each day necessarily engaged in the case, unless the court for special cause shown allow a higher rate of compensation not exceeding fifteen dollars per day.” There is a dispute as to the pqinber of meetings held by the auditor for the purpose of taking testimony and hearing arguments, but, at the outside, it did not exceed six, and some of them were very brief. The oral testimony was taken by a stenographer, who was paid out of the fund for distribution. It relates to a single claim of less than $1,000, it covers seventy-three typewritten pages and, judging from .the stenographer’s transcript, was all taken at one of the meetings. The legal questions arising upon the audit and upon the application for an issue, concerning which application the auditor made an “ interlocutory ” report, were not complicated nor difficult, and no difficult computation was required in the making of the report. If no “ special cause ” be shown — and as the case is now presented we are constrained to say that we see none — an allowance in excess of $10.00 for each day that the auditor was necessarily engaged in hearing testimony and arguments, in making the examination necessary to a determination of the questions of fact and of law, and in preparing his report, would be unwarranted. If $10.00 be allowed for each hearing and for the preparation and filing of the interlocutory report, there is left as compensation for the preparation of the principal report the sum of $430. To sustain this charge, if regard be had to the statute, it is necessary to presume that the auditor was engaged forty-three days in the performance of that part of his duties. We say it must be presumed, because neither in the report, nor in the auditor’s remarks overruling the exception to the compensation claimed in the report, nor in the opinion filed by the learned judge, is it asserted directly or inferentially that the auditor was engaged that number of days. On the contrary, he puts his claim to the fee upon an entirely different ground. He says: “ In view of the testimony taken (seventy-three pages typewriting) and considered, the question raised and decided, the amount of money distributed, et cetera, the auditor feels that Five Hundred Dollars is not an excessive or unconscionable charge, but on the other hand reasonable, if not wholly inadequate for the services rendered, especially, considering fees allowed in other audits.”

And the court says : “ The amount of the auditor’s fee upon first view seems to be large, but upon consideration of all the work done in the case, as shown by the testimony, the report and other papers in the case, and in yievy of tfie fqrtlier fact that the auditor who did the work was in a better position to judge of the value of his services than the court, we do not feel disposed to reduce the amount of the fee charged by him.” It is thus seen that both auditor and court placed the allowance of the fee upon a ground which the statute does not recognize as the basis of compensation. While the appellate courts will not reverse the action of lower courts in the matter of the compensation of auditors unless error clearly appears, yet they are bound to do so in obedience to the statute, where the allowance cannot be sustained unless it be presumed from an inspection of the report that the auditor was necessarily engaged a certain number of days in the performance of his duties, and such presumption would be beyond the bounds of reason.

The decree so far as it relates to the fee of the auditor is reversed and the record is remitted to the court below to ascertain and fix the fee at the rate of $10.00 for each day that he was necessarily engaged in the performance of his duties, unless special cause be shown to the satisfaction of the court for the allowance of a higher rate of compensation, not exceeding $15.00 per day, and to make pro rata distribution among the unsecured creditors of the balance of the $500 remaining after the allowance of such fee. It is further ordered and decreed that the costs of this appeal be paid by the appellee.


author: Per Curiam,

text:
    Black v. Pittsburg & Butler Street Railway Company, Appellant.

      Deed — Streets—Highways—Plan of lots — Vacation of street — Road law —Injunction—Equity.

    Where ail owner of land lays out lots and streets thereon, and one of the streets is placed on the municipal plan as a public highway and thereafter the street is vacated by the public authorities, the original owner of the land cannot as against the grantees of his lots or their successors in title, claim absolute ownership in the bed of the street vacated, and exclude the lot owners from its use.
    A sale of lots according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall'be forever open to the use of the public and operates as dedication of it to public use,

      Argued. May 15, 1907.
    Appeal, No. 221, April T., 1907, by defendant, from decree of C. P. Butler Co., Equity Docket No. 2, Sept. T., 1906, on bill in equity in case of E. A. Black et al. v. Pittsburg & Butler Street Railway Company.
    Before Rice, P. J., Hendebson, Oblady, Head and Beaveb, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Galbbeath, P. J., filed the following opinion:
    FINDINGS OF FACT.
    1. About the year 1872 Moses Sullivan and Walter L. Graham were the owners of a tract of land in the borough of Butler count]1-, Pennsylvania, containing about four acres, being the four acres described in plaintiffs’ bill, which they laid out into lots according to a plan which provided for streets and alleys, among which were West street on the south, Shore street on the east and north. Between these two streets was an alley, the one in controversy, which extended east and west parallel with West street. These streets and alleys were dedicated to public use or for the use of all persons who might choose to travel thereon, and the alley in question has been so used ever since until the doing of the things complained of in plaintiffs’ bill.
    2. Sullivan and Graham sold various lots in this plan and made conveyances bounded by and with reference to s.iid streets and alleys and according to their plot, including the conveyances for the lots now owned by the several plaintiffs' and by the defendant company.
    8. The dates of the deeds for the several lots now owned by the respective plaintiffs and defendant are as follows, viz.:
    These being the dates of the original deeds made by Moses Sullivan and Walter L. Graham to the original purchasers of the several lots, through whom the plaintiffs and defendant company respectively claim.
    4. These lots, some of which fronted north on Shore street and the others of which fronted south on West street, all extend to said alley in the rear.
    5. Lots Nos. 4 and 5, owned by defendant company, are on the north side of said alley, adjoining each other, and together abut on said alley in the rear a distance of 124 feet. Lots Nos. 11 and 12, owned by defendant company, are on the south side of said alley, directly opposite lots Nos. 4 and 5, on the north side, and abut on said alley in the rear a distance of 124 feet.
    6. For more than twenty-one years the town council of the borough of Butler, through its street commissioner and workmen, has worked upon and repaired West and Shore streets, and on one occasion between the years 1900 and 1905, the precise date of which does not appear, leveled up the alley in question after it had been washed out by a flood. About the year 1890 George G. Pillow, a surveyor, was employed by the town council of Butler borough to make a survey and di’aft of the street system of Butler, which he did, including the street and alleys shown by the Sullivan and Graham plan of lots, which draft was accepted and used by the town council.
    7. The Pittsburg & Butler Street Railway Company, defendant, is constructing an electric railway to extend from the city of Pittsburg to the borough of Butler, a distance of more than thirty miles, and purchased the lots in question for the purpose of erecting car barns thereon. The said lots cannot be advantageously used for that purpose while separated by said alley. The defendant company on that account made arrangement with the town council of the borough of Butler to have said alley vacated for the distance that their said lots abutted thereon. At or about the same time the defendant company agreed with the town council aforesaid to open up a street along the east side of their said lots, from West street on the south to Shore street on the north, along the route of their railway, said street to be thirty feet wide, to be paved by defendant company and to be for the use of the public, subject to the exclusive right of defendant company to use the same for street railway purposes. This street, when opened, will cross over and occupy thirty feet of that portion of said alley lying between defendant’s lots.
    8. On May 1, 1906, an ordinance was duly enacted by the town council of the borough of Butler vacating that portion of said alley between lots Nos. 4 and 5 on the south, and Nos. 11 and 12 on the north, owned by the defendant company. Pursuant to said ordinance the defendant companjr closed the portion of said alley so vacated, with the purpose in view of using the same in connection with and as part of its said lots of ground for the purposes of erecting its car barns and shops thereon.
    9. The erection of the proposed car barns and shops will cost defendant company about $40,000, and their erection at or near the borough of Butler, which is the terminus of its line, and all under one roof, is necessary in order to the convenient operation of defendant company’s road.
    DISCUSSION.
    There is but one question involved in this case, viz.: Did the vacated portion of the alley in question revert to the defendant company, it being the abutting owner, in such manner as to permit the defendant company to close it up and use it for its own purposes, and so prevent the use of it as an open way appurtenant to the properties owned by plaintiffs ?
    On part of the defendant it is contended that its purchase of the lots on either side of the alley and abutting thereon carried with it title in fee to the center of the alley, and that on vacation of the alley by the municipal authorities the possession of the alley fell to it. It is the undoubted rule that when a public street or highway is called for as a boundary or monument in a deed, it is used as an entirety to the center of it, and to that extent the fee passes. The conveyance carries ' with it the fee to the center of the highway: Paul v. Carver, 26 Pa. 223.
    And this rule, we have no doubt, applies equally to a conveyance bounded by a public alley. But this ownership in fee is not inconsistent with an outstanding light in others or in the public to use the surface for the purpose of public travel. In other words, the title so conveyed is no less a fee hy reason of the use of the highway over the surface of the land. A title in fee, therefore, in the purchaser of the land may exist concurrently with an outstanding right in another or in the public, or both, to have the way over the land kept open for travel. And this is especially true when an owner of land has divided it up into lots according to a plan, with streets and alleys, and has sold lots according to such plan by reference thereto in the deeds of conveyance. In such case there is, on the- one hand, a covenant right in each purchaser to have said streets and alleys kept open as appurtenant to his land, and this right can be asserted by him or those claiming under him against all interference therewith. The right so vesting in him is his as much as the land purchased by him to which it is appurtenant. But the plotting of the land by the owner also operates as a dedication of the streets and alleys shown on the plot to public use. Such dedication does not of itself, however, impose on the public authorities any duty of control or maintenance. To have this effect there must have been some unequivocal act of acceptance on part of the municipal authorities or such long continued use by the public and of such character as would raise a prescriptive right in the public. But even this latter may be doubted since the Act of May 9, 1889, P. L. 178. However this may be, it remains true that the private right of each purchaser to have said streets and alleys kept open may be asserted by him independently of the public right. The private right is unaffected by municipal acceptance or assumption of municipal control, and exists wholly independent of such acceptance or control. This follows from many authorities, among which the following may be cited: The sale of lots according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall be forever open to the use of the public, and ■operates as a dedication of them to the public use. The right passing to the purchaser is not the mere right that he may use the street, but that all persons may use it: Quicksall v. Philadelphia, 177 Pa. 301.
    When a map or plan is thus referred to, it becomes a material and essential part of the conveyance, and is to have the same force and effect as if copied into the deed: Higgins v. Sharon Boro., 5 Pa. Superior Ct. 92.
    “ If it be a street laid o'ut by the grantor himself over land which he sells in lots, there is necessarily an implied covenant that he will open it at least for the use of the grantees. . . . It is a well known legal principle that a description referring to a street laid out or to be laid out by the grantor ordinarily operates as an equitable grant of the right of way and binds privies in title with notice: ” Twibill v. Railway Co., 3 Superior Ct. 487.

      It was also held in that case that it was not necessary, in order to preserve the rights of the holders of title under the original owner who plotted the ground, that the street or way should be accepted by the city. That it was a way, lawfully created by the original owner of the land and of such character that every abutting lot owner could insist, as a matter pertaining to his own right, that it may be used by the public if they see fit to travel it.
    In Weaver v. Getz, 16 Pa. Superior Ct. 418, it was held that, “A person who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has in the land. ”
    Where lots are sold according to a plan, “the right of a grantee and those who claim under him to have a street upon which his deed calls for a frontage kept open as a way appurtenant to his land is, as against his grantor, entirely distinct from and independent of the right of citizens generally to use the public highways of a municipality: ” Carroll v. Asbury, 28 Pa. Superior Ct. 354.
    From these and kindred authorities which might be cited to the same effect, we think it results conclusively that tbe private right which each individual lot owner, under deed from Sullivan and Graham, acquired by virtue of the conveyance to him according to the plot or plan, to have the streets and alleys shown by said plot kept open for the use of himself and all others, is a distinct entity, an individual right, which he might at all times assert, whether or not the streets and alleys were ever accepted as such by the municipality, and that this private right was not lost by or merged into a subsequent acceptance of the said streets and alleys by the municipality. If this conclusion be correct, the question still remains whether or not the private right survived the action of the town council in vacating, the portion of the alley in question. If the determination of this question rested on reason alone, it might be answered that inasmuch as the private right does not rest on or grow out of the acceptance of the alley by the municipality, but existed prior thereto, its continued existence would not be affected by or dependent on the continued control of the municipality. But we think the answer to this question no longer rests on reason alone, but on authority as well.

      In the case of Wickham v. Twaddell, 25 Pa. Superior Ct. 188, where the question was as to the right of the plaintiff, who was the owner of a lot purchased under a plot or plan of lots, to have one of the streets shown on such plan kept free from obstructions by another lot owner under the same plan and from the same original owner, the court held that “ neither the grantors nor those who through them subsequently acquired title to other portions of the tract could subsequently make changes which would deprive Wickham (the plaintiff) of the right which he had acquired to use as public highways the streets located upon the plan..... Such an owner when the street has been laid out or established by his grantor is a purchaser by implied covenant of the right that the street shall remain open, and the vacation of the street by the municipal authorities will not divest his right to have the space left open as a street. This conveyed right of way as appurtenant to the land is wholly distinct from the public right of passage.”
    In the brief submitted by counsel for the defendant it is contended, however, that as the question of the vacation of the street in the case just cited was not involved, what was said as to the effect of the vacation of such a street by municipal authority was mere dictum. However that may be, what counsel contends was dictum in that case was quoted and applied in the case of Carroll v. Asbury, 28 Pa. Superior Ct. 854. In that case Carroll, the plaintiff, purchased from Asbury a lot in a plan of lots laid out by Asbury, which fronted on a street which appeared on and as part of said plan, known as Lakeside avenue, in the city of Philadelphia. The city authorities of Philadelphia, by ordinance, adopted and confirmed the plan, with said avenue as laid out by Asbury. The same authorities, by a subsequent ordinance, revised and changed the line of certain streets on said plan, and in so doing omitted and vacated, as a public highway, that part of Lakeside avenue as located by the Asbury plan, from a point at the southeast corner of Carroll’s property to the eastern terminus of said avenue. This left the avenue still open in front of Carroll’s property and thence westward to its westward terminus. The property on both sides of the portion of said avenue which had been vacated by said ordinance belonged to Asbury and another, who thereupon asserted an absolute ownership of the land covered by the vacated portion of the street, and were about to build a fence or plant a hedge across it, when Carroll filed a bill to restrain them. In disposing of the case, the court says: “ The public might reject or accept, or having accepted, might renounce the public right involved in the transaction, but the action of the public could not change the private rights of the parties created by their contract, as between themselves and those holding under them.”
    The principle there decided was the same as that involved in the case under consideration, and that case, we are convinced, rules this one. It was also there held that as the plaintiffs’ right was clear, their remedy was by injunction.
    It has been urged, however, by defendant’s counsel that inasmuch as the defendant is constructing an electric railway at great expense, extending from Butler to the city of Pittsburg, more than thirty miles, through a thriving community and a number of towns and villages, thus conferring a great public benefit, and as the construction and maintenance of the car barns and shops in question will afford employment for a large number of men, and as the injury to the plaintiffs resulting from the vacation and defendant’s occupancy of the disputed portion of the alley would be comparatively small, whilst the inconvenience and disadvantage resulting to the defendant company, if not allowed to occupy the alley, would be great, the question at issue should be determined in its fayor in accordance with the doctrine of “ the balancing of injuries.” No authority has been cited, however, in support of this proposition. It may well be conceded that the construction of defendant’s railways is a matter of public concern, and will bring benefits to many people in many ways, and that the value of the right of the plaintiffs to have said alley kept open is comparatively small, yet whatever the right is worth it is theirs, and to take it away from them without their consent and without compensation, however small its value, would be a price too large to pay, even for a project from which many benefits are likely to accrue to the community, as well as advantage to its owners.
    We conclude, therefore, as matters of law :
    1. The vacation of the alley in question, while it divested said alley of its public character, to the extent of relieving the borough from its maintenance and control, yet such revocation did not take away the private right of the plaintiffs to have it kept open for their use and the use of all others who may desire to travel on it.
    October 7, 1907:
    2. The vacation of said alley by the municipal authorities did not operate to vest title in the defendant conpany in such manner as to deprive plaintiffs of their right to have it kept open for public travel.
    3. The defendant company’s occupancy of said alley for the purpose of placing buildings upon it is an encroachment on the right of the plaintiffs.
    4. The right of the plaintiffs being clear, equity has jurisdiction to enjoin the defendant company, and an injunction is therefore directed to issue as prayed for October 19, 1906.

      Error assigned was decree awarding an injunction.

      Joseph B. Bredin, with him W. JET. Lush, for appellant.

      T. C. Campbell, for appellees.
   Per Curiam,

It is settled by numerous decisions “ that a sale of lots according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall be forever open to the use of the public and operates as a dedication of it'to public use.” One of the latest decisions of the Supreme Court, in which the rule as above stated has been enunciated, is Garvey v. Refractories Company, 213 Pa. 177. The question involved in this appeal is whether this right of the grantee and those who claim under him, arising out of the implied covenant of his deed running with the land to have the street kept open as a way appurtenant to his land, is extinguished by the municipality’s acceptance of the dedication or by such acceptance followed by vacation of the street by due process of law. This .question was considered by this court in Wickham v. Twaddell, 25 Pa. Superior Ct. 188, and again in Carroll v. Asbury, 28 Pa. Superior Ct. 354. In the former case there was no vacation, but the facts required a determination of the nature of the right acquired by the purchaser under his deed. Therefore, we cannot agree with appellant’s counsel that what was said aá to the effect of a vacation was obiter dictum. But, be that as it may, the precise question arose in Carroll v. Asbury, and was decided in the negative upon full consideration of the principles involved and of the pertinent authorities. The learned judge below was clearly right in following that decision and, therefore, in holding that the plaintiffs, whose lots abut on the alley, were entitled to have it kept open as a way appurtenant to their lands. The plaintiffs’ right being clear, it is not a case for balancing the loss to the defendant or the public which may result from the defendant being restrained from building on that portion of the alley upon which its land abuts against the injury which would result to the plaintiffs from the deprivation of their right. For further discussion of the question and for a citation of pertinent authorities, we refer to the opinions of our Brother Porter in the cases above cited, and to the opinion of the learned judge below in the present case.

The assignments of error are overruled and the decree is affirmed, at the costs of the appellant.


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    Koering’s Estate.

      Decedents’ estates — Debt due to commonwealth — Lien on real estate— Acfs of February 24, 1834, P. L. 70, secs. 21, 24; June 8, 1893, P. L. 392, and June 14, 1901, P. L. 562.
    Under the 21st and 24th sections of the Act of February 24, 1834, P. L. 70, as amended by the Acts of June 8,1893, P. L. 392, and June 14, 1901, P. L. 562, a debt due the commonwealth loses its lien upon the decedent’s real estate both generally and against heirs and devisees, unless the commonwealth institutes proper proceedings within two years after the death of the decedent, to continue the lien.
    Section 21 and section 24 of the act of February 24, 1834, relate to the same general subject, namely, the debts of decedents, and should be construed together. There is a necessary and irresistible implication of a legislative intent that the limitation of lien provided in the 24th section should apply to all of the debts that are expressly mentioned in the 21st section, and are not excepted in the 24th section.
    There is nothing in the Act of June 8, 1893, P. L. 392, or the amendatory Act of June 14, 1901, P. L. 562, that creates or revives a distinction between debts due to the commonwealth and those due to individuals so far as a lien upon real estate is concerned.
    Argued May 8, 1907.
    Appeal, No. 218, April T., 1907, by the Commonwealth of Pennsylvania, from decree of O. C. Allegheny Co., Sept. T., 1903, No. 150, overruling exceptions to adjudication in estate of Theodore Koering, deceased.
    Before Rice, P. J., Henderson, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that in 1893, Theodore Koering was charged with certain escheat money, due the commonwealth. He died November 1,1900, without having paid over this money. More than two years after Koering’s death, his real estate was sold, and the proceeds became the fund for distribution in this proceeding. The commonwealth claimed out of the fund the escheat money due by the decedent.
    The auditing judge disallowed the claim, but on exceptions the fund was distributed to the commonwealth.
    On motion a reargument was allowed, and Hawkins, P. J., filed the following opinion:
    The claim presented in this case should be rejected on these grounds:
    The commonwealth having been expressly named as one of the objects of litigation in the act of February 24, 1834, its claim is thereby taken out of the general rule of exemption from the running of the statute of limitation : State v. Crutcher, 2 Swan, 504. The 21st section of that act provides that, “ All debts owing by any person within this State,” shall be paid in. ¡ a prescribed order, including “ debts due the Commonwealth,” which are placed last; and these are necessarily the same “ debts ” whose lien is limited by the 24th section of the same act to five years, unless an action at law be commenced and duly prosecuted. The fact that debts due the commonwealth were ordered to be paid last was said in Mitchell’s Estate, 2 Watts, 87, to manifest an.intention to abandon any supposed preference which the commonwealth might otherwise have had under the rule of common law. “ The maxim of the common law does not apply when from the whole Act a contrary intention can be collected.” The whole scope and spirit of the act shows that it is intended to prevent heirs and purchasers from being surprised by claims against decedent himself not placed on the record in proper time: Cobaugh’s Appeal, 24 Pa. 143. “ The great object of the Act,” said the court in Oliver’s Appeal, 101 Pa. 299, “ was to quiet the title of heirs and devisees, and purchasers from them, of lands derived from decedents. It was only necessary for the purchaser or mortgagee to resort to a single office, the prothonotary of the county, to ascertain whether or not any action had been brought or copy or statement of any judgment filed within the period of five years from decedent’s death. If there was no mortgage or judgment at the time of his death and the office of the prothonotary was clear of any action or statement of demand, he might rest perfectly secured that his title was unincumbered by any debts or judgments against the estate of the decedent, whatever the nature of the judgment might be.” Debts due the commonwealth were just as much within this purpose as those of its citizens. It was just as important to heirs, devisees and purchasers that the land should be freed from the lien of debts of this class as any other. They could not “ rest perfectly secure ” until debts of every nature had been satisfied. The right of the commonwealth to lien at all rises out of the system of statutory law of which this act is part, and it is as much bound by the rules prescribed for the administration of justice as any citizen- Attorney General v. Radloff, 10 Exch. 84, Pollock, C. B.; Mitchell’s Estate, 2 Watts, 87. It is for this reason that the commonwealth is bound to present its claim on audit of the administrator’s account: Mitchell’s Estate, 2 Watts, 87; and there is just as much reason why it should bring an action to continue a lien which must otherwise cease to exist. An analogous case is found in that line of cases in which it has been held that the commonwealth gains no preference over other creditors when it fails to file the statement required by the act of 1827: Gladden v. Chapman, 188 Pa. 586. The policy of the law to facilitate the settlement of estates and unshackle titles and discourage secret liens is in the interest of public prosperity.
    The commonwealth, having failed to bring action as prescribed by the act of 1834 and its supplements, has lost its lien.

      October 7, 1907:

      Error assigned was disallowance of commonwealth’s claim.

      T. O. Noble, with him Richard B. Soandrett and James E. Barnett, for appellant.
    Statutes of limitation bar the commonwealth only when she is expressly named as being bound thereby: Com. v. Hutchinson, 10 Pa. 466 ; McKeehan v. Com., 3 Pa. 151; Com. v. Johnson, 6 Pa. 136; Bagley v. Wallace, 16 S. & R. 245; Pennsylvania Canal Co. v. Harris, 101 Pa. 80; Com. v. McDonald, 16 S. & R. 390 ; Com. v. Moorehead, 118 Pa. 344; Com. v. N. Y., etc., R. R. Co., 138 Pa. 58; Com. v. Baldwin, 1 Watts, 54.
    We contend that the act of 1901 is (a) a statute of limitation, and (b) does not bar the commonwealth expressly nor by necessary implication: Kerper v. Hoch, 1 Watts, 9 ; Wallace’s Appeal, 5 Pa. 103, 106; Hemphill v. Pry, 180 Pa. 593; Com. v. Baldwin, 1 Watts, 54; Com. v. Hutchinson, 10 Pa. 466 ; Ex parte Postmaster-General, L. R., 10 Ch. Div. 595; Bagley v. Wallace, 16 S. & R. 245.

      William M. Sail, with him Nall Metcalf, William Metcalf, Jr., and 0. P. Metcalf, for appellee.
    At the end of the two-year period the lands of a decedent are discharged from the lien of the debts and are not assets for the payment of such debts, whether in the hands of the heirs or devisees, or purchasers: Kerper v. Hoch, 1 Watts, 9; Oliver’s App., 101 Pa. 299 ; Cobaugh’s App., 24 Pa. 143.
    An analagy is found in the statutes governing public accounts : Gladden v. Chapman, 188 Pa. 586; Wilson & Son Silversmith Co.’s Estate, 150 Pa. 285 ; Arnold’s Estate, 46 Pa. 277 ; Goodwin Gas Stove & Meter Co.’s App., 117 Pa. 514; In re Wilson, 4 Pa. 164.
    There is an analogous principle laid down in Mitchell’s Estate, 2 Watts, 87.
   Opinion by

Rice, P. J.,

The question involved is thus stated by appellant’s counsel: Whether a debt due the commonwealth from a decedent is an indefinite lien upon real estate owned by him at his death, generally, or against heirs and devisees. It is settled by the decisions cited in their exhaustive brief that the legislature shall not be taken to have postponed a public right to that of an individual, “unless such an intent be manifested by explicit terms (as it has been in the order of paying a decedent’s debts) or at least by a necessary and irresistible implication,” and that this principle is applicable in the construction of statutes of limitation: Commonwealth v. Baldwin, 1 Watts, 54; McKeehan v. Commonwealth, 3 Pa. 151; Commonwealth v. Johnson, 6 Pa. 136. By the twenty-first section of the Act of February 24, 1834, P. L. 70, which prescribes the manner in which the debts of decedents shall be paid, it is provided that debts due to the commonwealth shall be paid last, and the twenty-fourth section provided that “ no debts of a decedent, except they be secured by mortgage or judgment, shall remain a lien on the real estate of such decedent longer than five years after the decease of such debtor,” unless certain things were done by the creditor within that period. That the legislature had directly in mind, in this enactment relative to the estates of decedents, debts due to the commonwealth, expressly appears and does not depend upon mere inference. The two sections relate to the same general subject, namely, the debts of decedents, and should be construed together. Observing the generality of the words “ all debts,” in the twenty-first section, and of the words “ no debts,” in the twenty-fourth section, noticing that in the former section there is manifested an intention to abandon any supposed right of priority over debts due individuals which debts due the commonwealth might otherwise have had under the rule of the common law, observing further that in the latter section certain kinds of debts are excepted and that debts due the commonwealth are not mentioned in the exception, and bearing in mind that it is a statute of repose as well as of limitation and was intended to prevent devisees, heirs and purchasers from being surprised by claims against the decedent not placed on record in proper time, we conclude that the requirements of the common-law rule of construction were fully met and’that the limitation of the twenty-fourth section applied to debts due the commonwealth as well as to debts due to individuals. In other words, there is “ a necessary and irresistible implication ” of a legislative intent that the limitation should apply to all of the debts that are expressly mentioned in the twenty-first section and are not excepted in the twenty-fourth section. This conelusion is so well supported by the opinion filed by the court below after reargument that it is unnecessary for us to discuss that proposition further.

The legislature having abolished the distinction as to debts of decedents between those due to the commonwealth and those due to individuals, so far as lien upon real estate is concerned, the question arises, whether this distinction was revived by the Act of June 8, 1893, P. L. 392. This is a very different question from that which would be presented if the act of 1893 were the first legislation upon the subject of the limitation of the lien of decedents’ debts, or were to be construed entirely independently of the act of 1834, and must be answered in the negative. And if the distinction was not revived by that act, it certainly was not by the amendatory Act of June 14, 1901, P. L. 562. The first section of the act of 1893, is a literal transcript of the twenty-fourth section of the act of 1834, except in these particulars: the word “ two ” is substituted for the word “ five ” in the designation of the period of limitation; the words “to judgment” are added after the words “ duly prosecuted ”; and there is added at the end of the section a clause relative to the duty of the prothonotary, which has no bearing whatever on the question before us. Leaving this last clause out of view (as we are justified in doing) the section, so far as it relates to the subject now under consideration, is a re-enactment in identical terms of the provisions of the twenty-fourth section of the act of 1834, except that the period of limitation is reduced from five to two years. This being so, and there being nothing in the context to show a contrary intent, we are warranted in presuming that it was intended by the legislature that it should take the place of that section in the general system of laws relative to executors aud administrators and the estates of decedents of which it formed a part, and that no debts should be excluded from its operation that were not excluded from the operation of that section. The revival of the original law by the repeal of a repealing law resting, as it does, upon the presumption of legislative intent, does not occur in any case where the contrary intent appears, and we are of opinion that such contrary intent is apparent here.

The judgment is affirmed.


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    Commonwealth v. Samuel W. Black Company, Appellant.

      Taxation — Mercantile tax — Corporation—Beal estate broker — Acts of May 15, 1850, P. L. 772, June 7, 1901, P. L. 534, and April 14, 1905, P. L. 161 — Constitutional law — Statutes—Amendments.
    Under the Act of April 14, 1905, P. L. 161, a corporation engaged in the business of a real estate broker must pay a license tax or fee to the commonwealth.
    The Act of April 14, 1905, P. L. 161, does not violate section 3 of article III of the constitution, relating to the title of statutes, nor section 6 of article III of the constitution relating to amendments.
    The act of April 14, 1905, applies an established system of procedure to a new class of cases by a general reference to existing laws.
    Argued May 10, 1907.
    Appeal, No. 103, April T., 1907, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. Term, 1906, No. 503, for plaintiff on case stated in case of Commonwealth v. Samuel W. Black Company.
    Before Rice,, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine the liability for a license tax.
    Evans, J., filed the following opinion:
    The case comes before the court as a ease stated in the nature of a special verdict. The defendant is a corporation of the state of Pennsylvania, organized for the purpose of “ carrying on the general business of real estate agent,” and is doing business in the city of Pittsburg in the county of Allegheny. On April 25, 1906, the mercantile appraiser of Allegheny county rated the said defendant corporation as “real estate broker ” and appraised its receipts at $32,000 per annum and assessed thereon a license tax for the year commencing June 1, 1906, of $961.50, being three per cent of said appraisement with the legal fees added. The amount of the appraisement is agreed to as correct, but the defendant disputes its liability to be rated, assessed and taxed as a real estate broker. “ It is agreed that this case be decided as though it were before the court on an appeal from the rating and assessment of the .mercantile appraiser; the commonwealth expressly waiving, for the purposes of this case, any appeal on the part of the defendant company from the said rating and assessment.”
    The Act of April 14, 1905, P. L. 161, entitled “ an act to amend an act entitled ‘ an act to amend the seventh section of an act, entitled a supplement to an act, entitled an act to create a sinking fund and to provide for the gradual and certain extinguishment of the debt of the Commonwealth and to authorize a loan, approved the fifteenth day of May, Anno Domini, one thousand eight hundred and fifty, relieving stock brokers, bill brokers and exchange brokers from the provisions of said act’ approved the seventh day of June, one thousand nine hundred and one, by extending the provisions of said act to all merchandise brokers and real estate brokers, whether persons, firms or corporations,” after quoting the seventh section of the Act of May 15, 1850, P. L. 772, as amended by the Act of June 7, 1901, P. L. 534, for amendment, provides: “ Section 7. That hereafter all merchandise brokers and real estate brokers, whether persons, firms or corporations in each and every city and county of this commonwealth shall be required to pay annually to the use of the commonwealth for his, their, or its respective commissions or licenses granted in pursuance of the several acts of assembly now in force relating to the same, upon his, their or its annual receipts from commissions, discounts, abatements, allowances, or other similar means in the transaction of said business three per centum.” Prior to the passage of the act of 1905 it is admitted there was no liability on the part of a corporation engaged in business of a real estate broker to pay a license tax or fee, and unless the act of 1905 imposes that tax, the judgment in this case must be for the defendant.
    The language of the act of 1850, namely, “ all merchandise brokers and real estate brokers,” taken by itself is unquestionably as broad as the language of the act of 1905, namely, “ all merchandise brokers and real estate brokers, whether persons, firms or corporations; ” but in ascertaining the question whether the act was intended to extend the class of persons required to pay a license fee or merely to change the mode of arriving at the amount of the fee, the conclusion reached by the court in the case of the Commomwealth v. Real Estate Trust Company, 211 Pa. 51, is the natural one, namely, that the expression “all merchandise brokers and real estate brokers ” meant all merchandise brokers and real estate brokers which by existing laws were required to take out a license shall thereafter pay the fee prescribed. But a careful reading of the opinion of the court in that case is convincing that if the language of the act of 1850 had been the language of the act of 1905 the conclusion would have been different. Unquestionably, when the legislature provided that “all merchandise brokers and real estate brokers, whether persons, firms or corporations,” it intended by express terms to include corporations in the class that was required to pay a license fee to do business. And this is particularly true when we consider that the act of 1905 was passed immediately following the decision of the court in the Commonwealth v. Trust Company, 211 Pa. 51. In connection with this it must be borne in mind that the act of 1905 is an amendment to the act of 1850 as amended by the act of 1901, and, therefore, the act of 1905 is now section seven of the act of 1850 ; that the act of 1850 is a supplement to the Act of April 10, 1849, P. L. 570, which was itself an amendment to the act of May 27, 1841, and, therefore, the act of 1850, as amended by the acts of 1901 and 1905, is incorporated into and is a part of the act of 1841.
    But it is claimed by the defendant that even if the fair interpretation of the act of 1905 does include corporations doing a real estate business, the act is unconstitutional for the reason that it offends against sec. 3, art. Ill, and sec. 6, art. Ill, of the constitution of 1874. It is claimed that the title is misleading in that it is an amendment to an act to relieve stockbrokers, bill brokers and exchange brokers from the provisions of the act of 1850. By the wise provision of the constitution of 1874 all amendments to existing acts of assembly must be complete in themselves, and the act of 1901 enacts the seventh section of the act of 1850 as it is intended to be after amended by that act. Now, the act of 1905 amends the provisions of the act of 1901, it does not amend its title, and when one reads the title of the act of 1905 in view of the pro visions of the act of 1901, it is perfectly clear. To any man of ordinary intelligence on reading the title to the act of 1905 he will interpret it to mean an act to amend the seventh section of the act of 1850 as amended by the act of 1901; and taking that meaning of the title of the act of 1905 it is perfectly clear. Neither does it offend against the sixth section of article III, of the constitution; and we need only cite the opinion of the Supreme Court in the case of Smith Woolen Machinery Co. v. Browne, 206 Pa. 543 : “ The constitutional objection that the act transgresses the prohibitions of sec. 6, art. Ill, cannot be sustained. Section 4 of the act provides that ‘ proceedings to enforce the collection of claims shall be as is now provided by law in case of mechanics’ liens,’ except that in certain cases publication is required in addition to posting on the premises. And this is not a violation of the letter or spirit of that section of the constitution which has reference to express amendments only. When there is an established system of procedure in certain cases, whether it be by common law or statute or joint operation of both, anew act applying such system to a new class of cases by general reference to it, is not a violation of sec. 6, art. Ill, although it may operate to some extent as an extension of a previous statute ; ” citing In re Greenfield Avenue, 191 Pa. 290. The act of 1905 clearly applies an established system of procedure to a new class of cases by a general reference to existing laws.
    We are of opinion that on the case stated judgment should be entered for the plaintiff with costs. To which conclusion defendant .excepts. Exception allowed and bill sealed.

      Error assigned was the judgment of the court.

      Watson B. Adaw, for appellant.
    The statutes relating to the licensing and taxing of brokers do not, when correctly construed, impose any liability upon corporations: Com. v. Real Est. Trust Co., 211 Pa. 51.
    The act extending the license laws to real estate brokers was repealed, hence such brokers are no longer taxed, whether natural or artificial persons. If the act of 1905 imposes a tax on corporations doing the business of real estate brokers, it violates sec. 3, art. Ill of the constitution, which provides : “ No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title : ” Union Pass. Ry. Co.’s App., 81* Pa. 91; Dorsey’s App., 72 Pa. 192; Moore v. Moore, 23 Pa. Superior Ct. 73; Com. v. Luckey, 31 Pa. Superior Ct. 441; Mansfield’s Case, 22 Pa. Superior Ct. 224; Com. v. Trust Co., 211 Pa. 51; Stegmaier v. Jones, 203 Pa. 47 ; Com. v. Samuels, 163 Pa. 283.
    If the act of 1905 extends to corporations and to real estate brokers the acts of assembly relating to the licensing of other brokers, it violates sec. 6, art. Ill of the constitution, which provides : “ No law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length : ” Com. v. Trust Co., 211 Pa. 51; Titusville Iron Works v. Oil Co., 122 Pa. 627 ; Pittsburg’s Petition, 138 Pa. 401; Greenfield Ave., 191 Pa. 290.
    Even if the act of 1905 imposes a tax it provides no method for collecting it, and the appellee’s action must fall.
    Before the passage of the act of April 11, 1862, the tax or license fee could not be recovered by suit: Com. v. Manley, 2 Phila. 173 ; McKeesport Borough v. Fidler, 147 Pa. 532.

      Ira J. Williams, with him J. M. Magee, Donald Thompson, George H. Calvert and M. Hampton Todd, attorney general, for appellee.
    The commonwealth bases its right to recover the tax in question upon the provisions of secs. 7 and 8 of the Act of May 15, 1850, P. L. 772, as amended by the Act of April 14, 1905, P. L. 161. The act of 1850 is a supplement to the Act of April 10,1849, P. L. 570, the original act requiring brokers to pay a tax or license for the privilege of doing business. Real estate brokers were not included in the act of 1841, but by sec. 18 of the act of 1849 the provisions of the act of 1841 were extended to real estate brokers and merchandise brokers : Com. v. Real Estate Trust Co., 26 Pa. Superior Ct. 149; Mattern v. Canevin, 213 Pa. 588.
    The act of 1905 does not violate sec. 3, art. Ill, of the constitution, in that the subject is not clearly expressed in the title: Com. v. Lloyd, 2 Pa. Superior Ct. 6; Purvis v. Ross, 158 Pa. 20; Stroudsburg Boro. v. Shick, 24 Pa. Superior Ct. 442; Allentown v. Wagner, 214 Pa. 210.
    The act of 1905 does not violate article III, sec. 6, of the constitution of Pennsylvania : Greenfield Ave., 191 Pa. 290 ; Smith Woolen Mach. Co. v. Browne, 206 Pa. 543.

      October 7, 1907:
    Appellant’s contention that there is no method provided bylaw for the collection of the tax is unfounded : Act of April 7, 1830, P. L. 387; Act of April 10, 1849, P. L. 570; Lambertson v. Hogan, 2 Pa. 22; Rhines v. Clark, 51 Pa. 96 ; Mudge v. Williamsport, 78 Pa. 158; Union Canal Co. v. O’Brien, 4 Rawle, 358 ; Heinrich v. Venter, 1 Atl. Repr. 598 ; Kugler’s App., 55 Pa. 123 ; Schwenke v. Union Depot, etc., Co., 4 Pac. Repr. 906.
   Per Curiam,

The judgment is affirmed upon the opinion of the learned judge of the common pleas.


text:
    Maisch, Appellant, v. Order of Americus.

      Practice, C. P. — Assumpsit—Equity—Unincorporated association.

    An action of assumpsit will not lie against an unincorporated association. The proper remedy is by a bill in equity.
    Argued May 10, 1907.
    Appeal, No. 192, April T., 1907, by plaintiff, from judgment of C. P., No. 1, Allegheny Co., Sept. T., 1903, No. 944, on verdict for defendant in case of Catherine F. Maisch v. Order of Americus.
    Before Rice, P. J., Henderson, Orlady and Beaver, JJ.
    Affirmed.
    Assumpsit on a beneficial certificate. Before Brown, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      JError assigned was in giving binding instructions for defendant.

      James T. Buchanan, with him George L. Me Oleary, for appellant.
    The action was properly brought: Phipps v. Jones, 20 Pa. 260 ; Ryers v. Presbyterian Congregation of Blossburg, 33 Pa. 114; Schoales v. Order of Sparta, 206 Pa. 11; Hamill v. Supreme Council, 152 Pa. 537 ; Dickinson v. A. O. U. W., 159 Pa. 258; Kurz v. Eggert, 9 W. N. C. 126 ; Sparks v. Husted, 5 Pa. Dist. Rep. 189; Kline v. Allen Council D. of A., 6.. Northampton Co. Reps. 17; Com. v. Order of Vesta, 4 Dauphin Co. Rep. 233.
    October 7, 1907:

      J. A. Langfitt, with him K. U. Wilson, for appellee.
    The remedy is not at law, but in equity : McConnell v. Apollo Savings Bank, 146 Pa. 79; Fletcher v. Gawanese Tribe, 9 Pa. Superior Ct. 393; Luders v. Volp, 8 W. N. C. 417; Paul v. Keystone Lodge, 3 W. N. C. 408.
   Opinion by

Orlady, J.,

This action of assumpsit was originally brought August 31, 1903, against the defendant as a corporation, and service of the summons was made on E. E. Robbins as the president.

On March 28, 1906, upon affidavit of the plaintiff that a mistake had been made in the name of the defendant by describing it as a corporation, the court permitted the statement of claim to be amended by adding after the name “ Order of Americus,” the following: “ An unincorporated, fraternal, beneficial society duly organized under the laws of the commonwealth of Pennsylvania, and composed of Lee W. Squire, Edwin E. Robbins and others.”

No alias summons was issued, and when the cause was tried on October 16, 1906, the defendant presented a point for charges as follows : “ That under the pleadings in this case no verdict can be had against the defendant, because the remedy, if any, is by a bill in equity, and not by an action of assumpsit,” which was affirmed by the court, and a verdict directed for the defendant under authority of Fletcher v. Gawanese Tribe, 9 Pa. Superior Ct. 393. The decision of this court in . that case controls us in this one and the judgment is affirmed.

Henderson, J., dissents.