text:
    Philadelphia to use, Appellant, v. Mason.

      Municipal liens — Registered owner — Scire facias — Judgment—Opening judgment — Act of March 23, 1866, P. L. 303.
    Where the actual and registered owner of a city lot in the city of Philadelphia against which a municipal lien had been filed, conveys the lot by deed, and the grantee immediately registers his deed in the registry bureau, and subsequently the city files an affidavit in which the grantor is named as the owner or reputed owner of the lot, and that service had been made upon him, and on the same day a sci. fa. is issued against the grantor and is served upon him, and before the return day the grantee’s name is suggested by the city and the use plaintiff as the actual and present owner, but the writ of sci. fa. is not served upon him, a judgment against the grantor for default cannot be sustained, and will be opened at the instance of the grantee. In such a case the entry of the general appearance by the grantee nine years after the claim was filed cannot be construed as a waiver of the defense that the lien of the claim had expired four years before the appearance was entered.

      Municipal lien — Statutes—Repeal of statutes — Acts of March 23, 1866, P. L. 303, and June 4, 1901, P. L. 364.
    The Act of June 4,1901, P. L. 364, did not repeal the Act of March 23, 1866, P. L. 303, as to municipal liens filed prior to the date of the later act.

      Appeals — Municipal liens — Opening judgment — Striking off lien.

    Where the court of common pleas opens a judgment entered on a municipal lien, but does not strike off the lien, and the plaintiff appeals from the order opening the judgment, and the defendant does not appeal from the refusal to strike off the lien, the appellate court in affirming the order opening the judgment will not in the absence of an appeal by the defendant make an order striking off the lien.
    Argued Dec. 9, 1907.
    Appeals, Nos. 174 and 191, Oct. T., 1907, by plaintiff, from orders of C. P. No. 2, Phila. Co., Dec. T., 1897, No. 1,525, discharging rule for judgment for want of a sufficient affidavit of defense and in opening judgment in case of City of Philadelphia to use of the Vulcanite Paving Company v. Samuel M. Mason.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Scire facias sur municipal lien.
    Rule for judgment for want of a sufficient affidavit of defense.
    Rule to open judgment.
    Wiltbank, P. J., filed the following opinion:
    The question raised by the defendant Morrell is exclusively of procedure, and turns upon the provisions of the acts of assembly relating to the discharge of a lien for municipal paving upon the failure of the city to serve the registered owner of the land. The work was done, and a claim was later duly filed in this court on February 19,1898. At that date Samuel M. Mason was the registered owner and defendant. On January 3, 1899, George B. Morrell acquired title to the land through sheriff’s sale, and his deed was registered the same day. On June 4, 1901, an act of assembly providing inter alia a general system for the filing of municipal claims, the extent of the liens created, the procedure upon claims, the methods of preserving liens and enforcing payment of claims, etc., etc., became the law. (P. L., 1901, 364.) This act repealed and supplied the place of the then body of law for the creation of municipal liens and the collection of claims secured thereby. On March 24, 1902, a scire facias issued on the claim in suit, which was directed against Samuel M. Mason as the owner, and was thereafter returned in proper form as to him. Before this return, however, to wit, on March 26, 1902, two days after the writ went out, the city filed a suggestion of George B. Morrell as the actual and present owner. Morrell was not brought in by notice or writ, and on May 24, 1902, judgment was taken on the writ as issued against Mason for want of an affidavit of defense.
    The record discloses that up to the taking of this judgment Morrell had not been notified or served, nor had he taken action in the case. His ownership was not suggested by him, but, according to his undisputed declaration which must be taken as true on this motion for judgment, it was suggested by the plaintiff without any notice to him. His first movement Was of December 18,1906, eight years and ten months after the filing of the claim, when he presented a petition to this court on which there was granted a rule on the city to show cause why the judgment above described should not be opened. In this proceeding the date of the registration of this deed was established, as we have already stated it, to wit, January 3, 1899. On January 15, 1907, the rule was made absolute; whereupon he filed an affidavit of defense on the 26th, or eleven days later. A rule for judgment on this affidavit as insufficient was discharged by us on March 4, 1907.
    . The facts averred in the petition that the judgment be opened and in the affidavit of defense were according to the above narration, and on the prima facie case thus shown and brought to our attention in this form, we adjudged the matter not ripe for a judgment in favor of the claimant.
    On March 20, 1907, the plaintiff sued out two writs of scire facias against Mason and Morrell; one to revive the claim, the other to revive the judgment. The writs as against Morrell were duly returned, and on April 15, 1907, he filed an affidavit of defense. This set forth the facts relied upon in his earlier affidavit, to wit, that of January 26, 1907, and is the subject of the rule for judgment now to be disposed of.
    The revival of a judgment standing opened may be the object of a proceeding in order that its lien may be preserved, and in this case the writ to revive the judgment must be treated with the writ to revive the lien as bringing in Morrell in order that he might show cause if any he had why the lien should not survive. His affidavit, as we have said, exhibiting the same state of facts which we deemed at an earlier stage sufficient to preclude a judgment against him, the question presents itself whether under the new circumstance of his having been summoned by these writs of revivor he is still in a position to dispute a recovery.
    As the claim was filed prior to the act of June 4, 1901, and as that act relates to claims to be thereafter lawfully imposed or assessed, the new legislation does not in matter of substance apply, and we have only to consider whether we may distinguish the procedure on the claim, which procedure had its inception subsequently to that date, and test it by the provisions of the new act; or should we advance in due course under the practice acts of the earlier legislation.
    It is clear upon examination of the record that the claimant has not in his process availed himself of the act of June 4,1901. The original sci. fa. on the claim and the later writs to revive are not in accordance with the directions of the seventeenth and twenty-first sections of that act, but vary in important particulars therefrom: nor did the sheriff comply with the mandate of the eighteenth section and add the name of George B. Morrell to the original sci. fa. either upon instruction of the claimant or upon his own investigation, although at that time Morrell had been for more than three years the registered owner of the land. Whilst in this case it is determined that the new system of 1901 did not affect the claim which had been validly created prior thereto and subsisted at its date, yet we are not prepared to say that the legislation referred to was inoperative in respect of the process for the continuance of the lien and the collection of the debt. We find no warrant in law to hold that there are to-day concurrent systems of procedure, one for claims arising before the last act, the other for those arising after it, involving different rules for notice, different duties as to inquiry, different forms of writ, and different circumstances for judgment, and one of them flowing from legislation carefully annulled. It would be a novel course only sustained by indubitable mandate to project the operation of repealed statutes indefinitely .into the future until all the possibilities of revivor of municipal claims existing at the enactment of June 4, 1901, should have been exhausted.
    It is not necessary, however, that we should decide the point. The process is not in compliance, as we have shown, with the provisions of the act of 1901, and if our construction of that act were to relegate us to the earlier subsisting law we would again find the process insufficient because not in compliance therewith. If the claim is to be held unaffected by the act of 1901, in its substance and also as to the practice for collection, the objection of the defendant must prevail that the provisions of the Act of March 23, 1866, P. L. 303, and of June 10, 1881, P. L. 90,- are applicable. By the second section of the former act the name of the true owner should have been ascertained and suggested before the issuance of the writ of scire facias. We regard the fact that the city put upon the record the name of Morrell as the actual and present owner as requiring us to consider that some effect was intended and produced, and we must hold the city aware of the date of Morrell’s registration, to wit, January 3, 1899, although she did not furnish it in her suggestion, and is estopped from denying it now. The city has volunteered this action, which may be viewed in one of two ways: first, as in the nature of an amendment of the record so as to substitute the name of Morrell for that of Mason, in which event the lien by this time would have lapsed; or, second, as indicating by implication of the date that after claim filed but before scire facias Morrell became the actual owner. Under the latter construction we would be obliged to treat Morrell as within the provisions of the Acts of March 14, 1865, P. L. 320, and March 29, 1867, P. L. 600, relating to registration of deeds, taken in connection with the act of March 23, 1866, and the act of June 10, 1881, just cited. It therefore appears that whether we regard the claim as to be prosecuted and collected under the law as it stood before the act of June 4,1901, or under the law as it was established by that act, the plaintiff has not shown himself' entitled to judgment. The rule is discharged.

      Errors assigned were the orders of the court.

      Chas. Francis Gummey, with him M. Hampton Todd, for appellant.
    When a property is sold under a claim accruing after the registration of the deed, it must be sold in the name of the registered owner; not that subsequent owners must be joined in proceedings to revive the claim or to reduce the same to judgment: Kuntz v. Schumacher, 120 Pa. 131; Philadelphia v. Nell, 31 Pa. Superior Ct. 78; Philadelphia v. Lukens, 22 Pa. Superior Ct. 298.

      C. Berkeley Taylor,' for appellee.
    The act of 1901 did not apply to liens filed prior to its passage: Scranton v. Stokes, 28 Pa. Superior Ct. 434.
    Neither municipal nor mechanics’ liens are according to the common law, and therefore in order to justify them or judgment upon them some statutory authority must be pointed out: Jones v. Beale, 217 Pa. 182; Philadelphia v. Cooper, 212 Pa. 306; Hood v. Norton, 202 Pa. 114.
    This court is requested, under its power to amend or modify judgments, to direct the striking off of this lien, as was asked for by defendant under his rule dated December 18, 1906: Rodgers v. Black, 15 Pa. Superior Ct. 498.
    December 7, 1908:
   Opinion by

Rice, P. J.,

In February, 1898, when this municipal claim for cartway paving was filed, Samuel M. Mason was the actual and registered owner of the lot against which the claim was filed, and was so described in the claim. In January, 1899, George B. Morrell acquired title to the lot, and on the same day registered his deed in the registry bureau of Philadelphia. On March 24, 1902, the affidavit of H. S. Kenney was. filed by the city and the use plaintiff. ■ It set forth that Samuel M. Mason was then the owner or reputed owner of the lot, that he had a known residence in the city, and that on February 13,1902, the affiant served on him by copy left at his residence a notice that if the claim was not paid within ten days a writ of scire facias would be issued. On the same day that the affidavit was filed, a scire facias was issued against Samuel M. Mason, which was returned by the sheriff as having been served on Mason by copy left at his dwelling house with an adult member of his family and by posting on the lot described in the claim a copy of the writ, “there being no person found in possession thereof.” Two days after the writ was issued, and more than three weeks before the return day, the city solicitor and-the solicitor of the use plaintiff joined in suggesting of record that George B. Morrell was the actual and present owner; but the scire facias was not served upon him and no notice was given to him of the then pending proceedings. Two months later, judgment was entered against Samuel M. Mason in default of an affidavit of defense for the amount of the claim, with interest and counsel fee.

Here the case rested until December 18, 1906, when, upon the petition of Morrell setting forth in substance the above-recited facts and proceedings, the court granted a rule to show cause why the judgment should not be opened and the lien be stricken off, which rule, so far as opening the judgment was concerned, was made absolute on January 15, 1907.

On January 26, 1907, Morrell, by his attorney, entered an appearance in the case and filed an affidavit of defense setting forth the facts and proceedings above recited and concluding as follows: “Deponent is advised that the scire facias issued in the above cause was not available to continue the lien of said municipal claim against him, he not being a party thereto or served within five years from the date of filing the lien, and further that as more than five years has elapsed since filing of said lien and the same was not revived by scire facias in which he was named, or of which he had ten days' written or printed notice to make payment to the City Solicitor before the issuing of said writ in accordance with the Act of March 23, 1866, P. L. 303, the lien thereon has been lost and the property is not subject thereto.” Thereupon the plaintiff entered a rule on Morrell for judgment for want of a sufficient affidavit of defense, which the court subsequently discharged.

The plaintiff having excepted took this appeal and assigns for error, (1) the opening of the judgment; (2) the refusal of judgment for want of a sufficient affidavit of defense.

By the act of 1865, as amended by the act of 1867, which makes it the duty of purchasers of real estate in Philadelphia to return their properties for registration in the registry bureau, it is provided, that “no property, so returned, shall be subject to sale, for taxes, or other municipal claims thereafter to accrue, as a lien of record thereon, except in the name of the owner, as returned, and after recovery by suit, and service of the writ on him, made as in the case of a summons.” Philadelphia v. Nell, 31 Pa. Superior Ct., 78, is authority for the proposition that these acts do not make it a prerequisite to the revival of the lien of a municipal claim, which was duly filed and prosecuted to judgment against the actual and registered owner, that one who became the owner of the land and registered his title, “after the claim accrued as a lien of record,” be made a party to the scire facias to revive or be served with the writ.

We are unable to agree with the appellant’s counsel that that decision is a conclusive adjudication of the question upon which the present case turns. In the case cited the question was as to what must be done to keep the lien in life after the claim has been duly prosecuted to judgment. In the present case the question is as to what must be done to duly prosecute the claim to judgment. In the former case, differing from the present, the question of the applicability and effect of the Act of March 23, 1866, P. L. 303, and the Act of June 10, 1881, P. L. 91, did not arise, and, therefore, was not considered; whilst it is upon the ground that the provisions of those acts were not complied with that the appellee rests his contention that the scire facias was not effectual to continue the lien. One purpose of the act of 1866, as shown by the preamble, was to remedy the great injustice that was frequently done to the owners of property liened by the city, who were ignorant of the existence of claims against the same, by the accumulation of costs of suit thereon, and by selling said properties without actual notice to them. The remedy provided, and declared to be a substitute for the advertisement that under previous laws was required before suit could be brought on such claims, was “that before any scire facias shall be issued on any such claim, it shall be the duty of the city solicitor to cause diligent search to be made, by an assistant, or clerk, for the owners or reputed owners of all real estate, against which there has heretofore been, or may hereafter be, filed, any claim in the name of the city of every kind, and to serve him, or her, with a written, or printed, notice, to make payment to the city solicitor, within ten days.” And further on in the act it was provided, that “if such inquiry shall ascertain the name of-the true owner, he shall have notice as aforesaid, and his name shall be suggested on the record, and he, or she, be made a defendant, in any suit to be brought for such claim.” Having regard to the remedial purpose of the law, it would be a strained construction of the words “true owner” that would restrict them to the person who was owner at the time the claim was filed, and it needs no argument to show that the above-quoted provisions of the act are not merely directory. It is true, as suggested by appellant’s counsel, that Morrell neither in his petition nor in his affidavit of defense specifically alleged that the city solicitor or his assistant, or clerk, did not make diligent search in.the registry bureau. On the other hand, it is to be noticed, it does not appear by the affidavit filed when the scire facias was issued that such search, or any search whatever, was made in order to ascertain the name of the true owner. Assuming as we must from the undenied averments of the defendant’s petition and affidavit of defense, until the contrary is alleged and proved, that Morrell’s title was duly registered in 1899, it has not been made clear how a diligent search could have resulted in a failure to find it. When it is remembered, further, that within two days after the writ was issued the city and the use plaintiff joined in suggesting of record that Morrell was the actual and present owner, it is impossible to presume as matter of law that the diligent search which the act makes necessary was made before the preliminary notice was given and the scire facias was issued, and that such search was unsuccessful. As the learned judge below well says, the fact that the city put his name on the record as actual and present owner requires us to consider that some effect was intended and produced. It is not fairly to be presumed, in the absence of any qualifying words in the suggestion going to show that he became the owner after the scire facias issued, that this was what was meant to be asserted. For, if that is what was intended, why suggest his name of record at all? The natural conclusion is that the diligent inquiry the plaintiff was required to make (whether made before the issuing of the scire facias, as the act requires, or postponed until after it was issued, is immaterial), resulted in the ascertainment of facts which, under the act of 1866, made it necessary to suggest Morrell’s name of record. And if this be the true conclusion, the plaintiff could not prosecute the claim to judgment without giving him notice or even service of the writ upon him.

It is claimed that the failure to give him notice or serve the writ upon him was waived by his general appearance after the judgment was opened. But this was nearly nine years after the claim was filed, and surely it cannot be held that an appearance for the purpose of setting up the defense that the lien of the claim had expired four years before the appearance was entered, was a waiver of that defense.

It is further suggested that the act of 1866 is one of the acts expressly mentioned in the repealing clause of the Act of June 4, 1901, P. L. 364. This is true, not only of the act of 1866, but of other acts relating to the subject, upon which the plaintiff must rely unless the act of 1901 controls. But sec. 41 of that act provides: “This act shall only apply to claims wherein the right to file a lien after the date of its approval; but the right of other claimants under existing laws, shall remain' unaffected by its passage, and all claims properly filed thereunder are hereby validated.” And in the last section is the express declaration, “it being intended that this act shall furnish a complete and exclusive system in itself, so far as relates to the practice and procedure for the filing, collection and extent of tax and municipal claims, the right to file which accrued after the approval of the act.” This claimant is one whose rights, under existing laws, are unaffected by the act of 1901, but the same provision which preserves his rights “as they existed prior to the act of 1901,” would seem necessarily to keep in force also the laws defining and limiting them. Accordingly, it has been held “to be a fair conclusion from the language of the statute that notwithstanding its repealing clauses it was not intended to repeal the act of 1891, so far as applied to the collection of claims, the right to file which accrued before the act of 1901: ” Scranton v. Stokes, 28 Pa. Superior Ct. 434. The same reasoning which led to this conclusion would result in saving the act of 1866 and making it applicable to the claim in question. This, we think, is clearly shown by the opinion of our Brother Henderson to be the better view, and therefore we adhere to our former ruling. But even if it be conceded, as the learned judge below suggests but does not decide, that the act of 1901 became immediately operative as to.all claims, so far as procedure for continuance of the lien and collection of the debt is concerned, the action of the court was right because the provisions of the act of 1901, relating to procedure, were not followed.

It is suggested by appellee’s counsel that in addition to affirming the orders of the court below, we ought also to strike off the lien. It is a sufficient answer to this suggestion to say, without more, that the appellee has not appealed from the action of the court in that particular.

The order opening the judgment is affirmed, and the appeal from the order refusing judgment for want of a sufficient affidavit of defense is dismissed at the costs of the appellant. ■


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Henning v. Keiper, Appellant.

      Practice, C. P. — Trial—Jury—Verdict.
    A written memorandum of a finding of a jury although filed and preserved, is no part of the record. The only verdict is that which the jury announces orally, and which is received and recorded as the jury’s finding.

      Trespass — Cutting timber — Damages—Treble damages — Verdict—Act of March 29,1824, P. L. 152.
    Under the Act of March 29, 1824, P. L. 152, the plaintiff in an action of trespass to recover damages for the cutting of timber cannot recover double or treble damages unless his declaration is sufficient to apprise the defendant of the fact that the action was brought under the statute.
    Under such a declaration either the jury or the court may double or treble the damages as the facts of the case may demand; but the court cannot do so unless it clearly appears that the verdict of the jury was for single damages only.
    If, in such a case, the jury returns a verdict for an amount stated, and there is nothing else in the verdict or in the charge to indicate that the verdict was for single damages only, the presumption is that the verdict is for treble damages, and judgment must be entered accordingly without further trebling the amount.
    The act of March 29, 1824, is highly penal, and it is proper that it should be strictly construed.

      Appeals — Statement of question involved.

    Questions raised by assignments of error ought to be referred to in the appellant’s statement of the questions involved.

      Trespass — Boundaries—Evidence.
    In an action of trespass quare clausum fregit, where the question of boundaiy is involved, the fact that the plaintiff pointed out to a surveyor a certain corner as being a corner of the land in controversy, does not estop the plaintiff from showing at the trial that it was not the true corner.
    Argued March 2, 1908.
    Appeal, No. 55, March T., 1908, by defendant, from judgment of C. P. Monroe Co., Feb. T., 1907, No. 16, on verdict for plaintiff in case of Philip G. Henning v. Amos Keiper.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass quare clausum fregit to recover damages for an alleged wrongful cutting of timber. Before Staples, P. J.
    The question involved related to boundary lines.
    Defendant presented these points:
    3. If the jury believe, from the evidence, that at the time of the alleged cutting by the defendant, there were old stone corners on the ground, and by running lines between them the plaintiff, Henning, would get all the land he was entitled to under the Michael Kreider patent, and the return of survey thereof, and which would leave the trees cut outside of these lines, then the verdict of the jury must be for the defendant. Answer: Denied because involved. The corners may not have been original, or properly connected with the tract. [1]
    4. If the jury believe that when John L. Westbrook, the surveyor, went on the ground to survey the land in dispute, Philip G. Henning, the plaintiff, pointed out to him an old corner as being a comer of the Michael Kreider tract, and by the adoption of which by the said John L. Westbrook, in his survey, and using the courses and distances called for in the Michael Kreider warrant, two old stone corners were found along the Henry Woolery tract, which left the trees cut outside of the Michael Kreider tract, and gave Henning all the land called for by the Michael Kreider warrant and survey, then the verdict of the jury must be for the defendant. Answer: Denied because involved. [2]
    5. If the jury believe that Philip G. Henning, the plaintiff, pointed out to John L. Westbrook, the surveyor, a corner which Henning claimed to be a corner of the Michael Kreider warrant, and if, by the adoption of this corner, and using the courses and distances called for in the Michael Kreider warrant, not only the old beech tree, but also two old stone corners and the old chestnut called for in- the Michael Kreider warrant were found, lines between all of which corners left the trees cut outside of these boundaries, then the verdict of the jury should be for the defendant. Answer: Denied because involved. [3]
    Verdict for plaintiff for $60.58, which the court trebled and entered judgment for plaintiff for $181.74. Defendant appealed.

      Errors assigned were (1-3) above instructions, quoting them, and (4) in trebling the amount of the verdict.

      Rogers L. Burnet, for appellant.
    As the jury may depart from it, their finding in court is what decides the rights of the parties, and what is admitted of record; the paper delivered to the judge having performed its office, is never filed or preserved; and even if it should be, it would form no part of the record. The verdict in open court taken by the .proper officer was, therefore, the only competent evidence of what the jury directly found: Dornick v. Reichenback, 10 S. & R. 84; Wolfran v. Eyster, 7 Watts, 38; Walters v. Junkins, 16 S. & R. 414; Com. v. George, 12 Pa. Superior Ct. 1; Reitenbaugh v. Ludwick, 31 Pa. 131; Haycock v. Greup, 57 Pa. 438; Scott v. Scott, 110 Pa. 387; Com. v. Breyessee, 160 Pa. 451; Kramer v. Kister, 187 Pa. 227; Com. v. Mills, 3 Pa. Superior Ct. 161; Com. v. Houghton, 22 Pa. Superior Ct. 52.
    It is competent for the court to double the damages in cases in which they are not doubled by the jury; but the jury must find the facts by which it is to be determined whether the defendant be liable to such damages. The declaration should refer to the act, so that the defendant may be apprised of the extent of the demand, and the jury must find the damages and state that they are single damages: Livingston v. Platner, 1 Cowen, 175; Campbell v. Finney, 3 Watts, 84; Hughes v. Stevens, 36 Pa. 320; Clark v. Sargeant, 112 Pa. 16.

      A. Mitchell Palmer, for appellee.
    The question raised by the first three assignments of error are not referred to in appellant’s statement of questions involved and hence should receive no. consideration in this court: Bousquet’s Est., 206 Pa. 534.
    The court undoubtedly had the right to submit to the jury only the question of the value of the timber and to treble the damages afterwards upon a rule, if he thought the facts warranted it: Robbins v. Farwell, 193 Pa. 37.
    December 7, 1908:
   Opinion by

Rice, P. J.,

This was an action of trespass quare clausum fregit in which by his statement the plaintiff claimed, under the statute, to recover treble the value of certain timber trees, alleged to have been cut by the defendant on the plaintiff’s land, and carried away and converted to his own use by the defendant. The verdict, as recorded, was, the jury “find in favor of the plaintiff in the sum of $60.58.” Allusion is made in the appellee’s argument to the written memorandum of their finding brought into court by the jury, but it is well settled by the authorities that such paper, although filed and preserved, is no part of the record. The only verdict is that which the jury announced orally and which alone is received and recorded as the jury’s finding: Dornick v. Reichenback, 10 S. & R. 84; Kramer v. Kister, 187 Pa. 227, 233, and cases there cited; Commonwealth v. Houghton, 22 Pa. Superior Ct. 52; Commonwealth v. Flaherty, 25 Pa. Superior Ct. 490. It follows that the paper cannot be considered in the determination of the question whether the court was justified in entering judgment for treble the amount of the verdict. It has been authoritively determined by decisions construing the third section of the Act of March 29, 1824, P. L. 152, first, that a plaintiff cannot recover double or treble damages unless his declaration is sufficient to apprise the defendant of the fact that the action was brought under the statute; second, that under such a declaration either the jury or the court may double or treble the damages as the facts of the case may demand; but, third, that the court cannot do so unless it clearly appears that the verdict of the jury was for single damages only: Welsh v. Anthony, 16 Pa. 254; Hughes v. Stevens, 36 Pa. 320; Clark v. Sargeant, 112 Pa. 16; Dunbar Furnace Co. v. Fairchild, 121 Pa. 563; s. c., 128 Pa. 485; Robbins v. Farwell, 193 Pa. 37. Each of these cases is authority for one or more of the foregoing propositions, neither of which is disputed in the present case. The plaintiff’s statement conformed to the rule, and the question is, whether it appears, in the manner that it ought to appear in order to give the court authority to enter judgment for treble the amount of the jury’s award, that the verdict was for single damages only. In Campbell v. Finney, 3 Watts, 84, where the court entered judgment for double the damages awarded by the jury in an action under the act of 1705, it was held on writ of error as follows: “Here the plaintiff counts on the statute with a demand from the jury for double damages, and the presumption is that the jury gave double damages. And this presumption can only be negatived by a special finding of the jury themselves. The court have the power to double the damages only where the jury have shown by the verdict that they have not exercised the right.” Accordingly, the judgment was reversed and judgment entered for the amount awarded by the jury. In Livingston v. Platner, 1 Cow. 175, a case cited with approval by Justice Rogers, it was held that to entitle the plaintiff to have his damages trebled on motion, the jury must find generally for the plaintiff and assess the single value of the wood cut or carried off “in terms.” “If they do not thus find, we will intend that they have found the treble value, or that the defendant brought himself within the provisions [provisos?] of the act.” To the same effect is Newcomb v. Butterfield, 8 Johns. (N. Y.) 342, a case cited in support of the strict rule thus laid down by Justice Thompson in Hughes v. Stevens, 36 Pa. 320. “Again, to authorize the court to duplicate or triplicate damages, it must appear by the verdict, when the narr. sufficiently refers itself to the statutory remedy, that the jury did not do so themselves. The verdict must, therefore, expressly be for single damages only, or the presumption will be, that the jury have duplicated or triplicated them: Campbell v. Finney, 3 Watts, 84. All these requisites appeared in O’Reilly v. Shadle, and the judgment of the court below was affirmed. Here the narr. was at common law, and neither the court nor jury could increase the damages according to the statutory provision. But even if this defect had not existed, as already said, the verdict was general and the presumption would be as stated, that the jury had given treble the damages.” It is worthy of particular notice that this presumption was allowed to prevail, notwithstanding the fact, if we may rely on the report of the case, that the court had instructed the jury “that the true measure of damages was the actual value of the wood cut and carried away by the defendants.” In Clark v. Sargeant, 112 Pa. 16, Chief Justice Mercur said: “This presumption can be rebutted only by showing that the jury gave single damages. This fact must be shown by the verdict. It must expressly appear by the finding of the jury. Without this there is no power in the court to double or treble the damages.” Accordingly, it was held that a note by the court stenographer of an agreement of counsel that the question of treble damages was reserved, it not appearing that this agreement was brought to the attention of either the jury or the court, was not sufficient to rebut the presumption, for the obvious reason that without knowledge of. such agreement the jury could not have been influenced thereby. Nothing was said or decided in Robbins v. Farwell, 193 Pa 37, which is in conflict with the foregoing decisions. There the plaintiff declared for treble damages. The form of the verdict and the charge of the court do not appear in the official report of the case, but in the opinion of the Supreme Court it is stated, presumably from the record, that after the evidence was closed the trial judge addressed counsel as follows: “Go to the jury on the value of the white pine, and as to treble or single damages, we will decide that afterwards.” Further, quoting from the opinion of the Supreme Court, “Farwell admitted the cutting and removal of the timber; the court, on the evidence, directed the jury to find the quantity and value of it as it stood at the date of the alleged trespass, single damages only, leaving it open to plaintiff to take a rule for treble damages under the act of March 29, 1824. The jury found for plaintiff single damages in the sum of $2,023.49.” A verdict for the plaintiff for a gross sum, especially as it specified in addition the number of feet of timber and the .value per thousand feet, interpreted in the light of the remark addressed to counsel and the charge, might well have been presumed on appeal or on motion for treble damages to be a verdict for single damages only," even though the jury did not use those very words. But the record in the present case falls very far short of coming up to this standard. The only thing found anywhere in the record which even tends to show that the verdict was not responsive to the issue but was for single damages only, is the following excerpt from the judge’s charge: “If, however, you should determine the dispute [as to the line] in favor of the plaintiff, then you must ascertain what the lumber was worth, and as we understand it the plaintiff has agreed to accept the defendant’s statement, which was 6,758 feet at about eight and ten dollars a thousand. That matter is for you. The question of quantity of the lumber has been accepted and you fix the price.” A plausible argument may be made that the jury probably took this as meaning that they could not render a verdict for treble the value of the timber, but if regard be had to the settled rule upon the subject, the argument does not,lead to the certain legal presumption that the jury so understood the instructions and obeyed them. It was their duty to determine the value of the timber cut and removed in order that they might determine the amount of their verdict whether for single or treble damages. In view of a remark at the conclusion of the opinion in Clark v. Sargeant, 112 Pa. 16, and of the fact that the charge is not printed in the report of the case, we have felt warranted in examining the charge as printed in the paper-books and find that there the trial judge used this language in his charge: “The question for you to determine, then, is, how much is that worth as it stood in the tree? What is the value of the ash and the white wood that the defendants cut down and removed?” Then after referring to the testimony of the witnesses upon the subject, the judge further said: “So, you will see that there is not only a discrepancy, as to the amount, but as to the value of this timber cut down, and it will be for you to adjust the discrepancy, and determine what is the true, real value — market value — that the plaintiff is entitled to be- reimbursed on account of this alleged trespass.” We are warranted in saying that the instructions in that case were quite as explicit as the above-quoted instructions given to the jury in this case. And yet, as appears by the opinion of Chief Justice Mercur in the former case, they were not regarded as limiting the jury to finding single damages. It may be said that the view we have taken is very strict and technical, but it is not more so than the rules which governed the entering of.judgment upon reserved points prior to the recent act upon the subject. It is to be remembered that the act of 1824 is highly penal, and it is proper that it should be strictly construed. Upon a view of the whole case, as shown by the record, and of the clear and explicit rule laid down in the decided cases, we conclude that there was error in entering judgment for treble the amount of the verdict.

The questions sought to be raised by the remaining assignments of error are not even hinted at in the appellant’s statement of the questions involved. This is not in conformity to the rule of the court upon that subject. See Bousquet’s Estate, 206 Pa. 534. We have, however, given due consideration to these assignments and conclude that there would have been manifest error in affirming without qualification the defendant’s points to which they relate. The third point was erroneous because, as the learned judge said in his answer thereto, the stone corners referred to may not have been original or properly connected with the tract. He0 did not declare that they were not connected with the tract, but evidently meant that the question was for the jury, and the counsel for the appellant is in error in his suggestion that the refusal of the point practically withdrew that question from the jury. The other two points were faulty because they assumed that the fact that the plaintiff pointed out to a surveyor a certain corner as being a corner of the Michael Kreider tract, taken in connection with the other facts referred to in the point, would be conclusive upon the question of the true location of the line in dispute. But even if the plaintiff did point out that corner as the corner of the Michael Kreider tract, he would not be estopped thereby from showing upon the trial of the case that it was not the true corner. This need not be elaborated. The question as to the true location of the line in dispute was submitted to the jury by the learned trial judge in a manner as favorable to the defendant’s contention as he had a right to ask.

The fifth assignment of error is sustained. The judgment is reversed, and judgment is now directed in favor of the plaintiff for the amount of the verdict.


author: Head, J.,

text:
    Commonwealth, Appellant, v. Bierly.

      Deed — Estoppel—Land law — Warrant—Patent—Commonwealth’s title to forest land — Forestry.
    Where a patent is issued by the commonwealth for land on an application alleging a vacancy, when in fact no vacancy exists, and subsequently the commonwealth takes title to the land for forestry purposes by mesne conveyances from the holder of the older warrant, a person claiming under the junior warrant cannot allege that as the junior patent was issued by the commonwealth for a valuable consideration, the commonwealth is estopped from afterwards acquiring by purchase the older title and setting it up to defeat its own later grant.
    The rule that a grantor in a deed cannot set up a prior paramount title in himself against his own grantee applies only to a deed containing a warranty or covenant of title, and the estoppel is enforced merely to avoid a circuity of action. As a warranty and patent from the commonwealth contains neither warranty nor covenant for title, the rule is not applicable to these instruments, and as against them the commonwealth may set up a prior paramount title in itself.
    A person who secures a patent from the commonwealth on an application which either mistakenly or falsely alleges that the land is vacant is in no position to claim that the commonwealth is estopped by reason of its patent from setting up a prior paramount title in itself. In such a case there is an estoppel against an estoppel and the matter is at large.

      Adverse possession — Title—Burden of proof.

    Whilst the law raises no presumption against a title acquired by adverse possession, it certainly raises none in its favor. Upon him who asserts such a title, the burden of proof rests, with a constant pressure to establish, during the entire statutory period, the existence of every element out of which such a title must rise.
    Title to land by adverse possession for twenty-one years, cannot be established by proof of one or two crops on a very small portion of the land during the first two years, and a somewhat continuous cultivation of the same small tract during the last six years of the holding.
    Argued March 10, 1908.
    Appeal, No. 15, March T., 1908, by plaintiff, from judgment ofC. P. Snyder Co., Dec. T., 1906, No. 34, on verdict for defendant in case of Commonwealth v. A. S. Bierly.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Amicable action in trespass to recover damages for the cutting of timber trees. Before McClure, J.
    The facts of the case are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in refusing binding instructions for plaintiff.

      Philip B. Linn and Frederick E. Bower, for appellant.—
    The Strouse tract, unseated, distinct from the Knepp, which was seated, must stand or fall by the testimony concerning the Strouse, and the court very properly so limited the effect of the testimony before the jury: Hole v. Rittenhouse, 19 Pa. 305; s. c., 25 Pa. 491; s. c., 37 Pa. 116; Waggoner v. Hastings, 5 Pa. 300.
    As to the cutting of the timber there is no difference, as regards occupancy, between a solitary trespass and repeated trespasses, and the occupancy of a trespasser who does not cultivate and inclose continues no longer than he remains in contact with the soil: Wright v. Guier, 9 Watts, 172; Sorber v. Willing, 10 Watts, 141; DeHaven v. Landell, 31 Pa. 120.

      The law casts upon the owner of unseated lands a constructive possession, which can only be defeated, upon the part of a trespasser, by an actual possession for the statutory period of twenty-one years: Rifener v. Bowman, 53 Pa. 313; McArthur v. Kitchen, 77 Pa. 62; Huffman v. McCrea, 56 Pa. 95; Groft v. Weakland, 34 Pa. 304; Rung v. Shoneberger, 2 Watts,, 23; Washabaugh v. Entriken, 36 Pa. 513; Broad Top Coal & Iron Co. v. Coal & Iron Co., 65 Pa. 435.
    As against the commonwealth estoppel does not arise: Com. v. Pittsburg Forge & Iron Co., 2 Pearson, 374; Taylor v. Shufford, 4 Hawks, 116; Reid v. State, 74 Indiana, 252; Mullan v. State, 34 L. R. A. 262; Bartholomew v. Lehigh County, 148 Pa. 82; Com. v. Phila. County, 157 Pa. 527; Evans v. Erie County, 66 Pa. 222; State v. Williams, 94 N. C. 891; State v. Bevers, 86 N. C. 588; People v. Brown, 67 Ill. 435; Farish v. Coon, 40 Cal. 33; Wolfe v. Reynolds, 80 Pa. 204; Burd v. Seabold, 6 S. & R. 137; Smith v. Vasbinder, 77 Pa. 127; Cullen's Estate, 142 Pa. 18; Bagley v. Wallace, 16 S. & R. 245; McKeehan v. Commonwealth, 3 Pa. 151; Commonwealth v. Hutchinson, 10 Pa. 466; Commonwealth v. Johnson, 6 Pa. 136.

      A. W. Potter, with him M. I. Potter, for appellee.
    The clearing, inclosing and cultivation of this field, and the using of the woodland in the manner clearly shown by the testimony, brings this case within the scope of the decisions in all the more recent cases: Ament v. Wolf, 33 Pa. 331; Sholly v. Stahl, 2 W. N. C. 418; Hollinshead v. Nauman, 45 Pa. 140; Mason v. Ammon, 117 Pa. 127; Douglas v. Irvine, 126 Pa. 643.
    We confidently maintain that the commonwealth is bound by the same rules of common honesty which control the conduct of individuals; and that the commonwealth is therefore estopped to set up the title it acquired from Pardee originally granted out in 1794, to defeat the title it granted out to Knepp and Strouse in 1838 and 1840; and we submit the following authorities as ruling the question in favor of our contention: Root v. Crock, 7 Pa. 378; Commonwealth v. Smith, 2 Clark, 335; Penrose v. Griffith, 4 Binn. 231.

      December 7, 1908:
   Opinion by

Head, J.,

This amicable action, of trespass was begun, nominally, to recover damages for the cutting of a- few timber trees, but really to test the title to the tract of land upon which they grew.

As early as 1794 eight warrants issued out of the land office, for as many separate tracts of land 'situate chiefly in Snyder county. Each tract contained about 400 acres. They were regular in shape and surveyed in two tiers of four tracts each, the one tier lying immediately north of and adjoining the other. Each warrant was followed by a patent. By many mesne conveyances not necessary to be noted, the title to the entire block became duly vested in Ario Pardee and, upon his death, descended to his heirs at law. In 1901 the commonwealth purchased all of these tracts for forestry purposes, and went into possession. It was thus enabled to make out a clear prima facie case resting on a written and recorded title.

In 1838 and 1840 respectively, Henry Knepp and John Strouse filed, applications, alleging the existence of a body of vacant land in the portion of Snyder county they described and warrants issued, to the former for about fifty-four acres, to the latter for about 138 acres. The surveyor, who undertook to locate these warrants, laid them down, speaking generally, along and on both sides of the centre line of the older block of warrants already mentioned. With the Knepp war-, rant we have no direct concern, the title to the land covered by it not being involved in this case. Excluding the extreme southeastern corner of the Strouse tract, it appears that tract was a long narrow strip of land, almost rectangular in shape, overlapping and embracing parts of the Jesse Hoops, Joseph Moore and Joseph McClellan warrants in the northern tier of the older batch; and of the Catharine Bishop, John Bishop and Elizabeth Traxell warrants in the southern tier. In a word, there was no vacant land at the place described in the' application and warrant of Strouse. The title to every acre of it had passed out of the commonwealth forty years before. Under these circumstances it is conceded that Strouse took no title whatever and when he entered upon the land he was simply an intruder on the real owners.

Strouse, having acquired the interest of Knepp in his warrant, took out a single patent covering both. He, or his successors, made a permanent improvement on the Knepp warrant, resided there, cleared and cultivated considerable portions of it and .have ever since remained in undisturbed possession of it. No residence was ever established on the Strouse tract; with the exception of the small corner, to which we will later refer, it was never cleared nor cultivated and remains, to the present time, woodland.

Against the unbroken, written and recorded title of the plaintiff in this action defense is made on two separate and distinct grounds. . It is first contended by the defendant that although Strouse, by his junior, warrant and the patent following, took no title as against the then owner, whose title rested on the elder warrants, nevertheless, because his warrant and patent were issued to him by the commonwealth, for a valuable consideration, the latter is estopped from afterwards acquiring, by purchase, the older title and setting it up to defeat its own later grant.

We are unable to accede to the proposition that the conditions here presented invite the application of the legal principle thus invoked. The commonwealth was not a grantor within the meaning of that principle. Its warrant was not intended and did not purport to vest in Strouse any interest whatever in any land previously warranted to another. It simply authorized a survey, for his benefit, of the number of acres at the place mentioned in his application, “if not .already surveyed or appropriated.” In granting this warrant the commonwealth was not a volunteer. It asserted no fact by which Strouse was misled to his injury. On the contrary the warrant rested upon his own application, in which he declared that the land applied for was vacant, and he fortified his assertion, in this respect, not only by his own oath, but by the affidavit of a “disinterested witness,” one Peter Knepp, who declared, “that to his certain knowledge the land described in the above application is unimproved and as he verily believes not heretofore claimed by any other person.”

Upon the filing of such an application, .the land laws of. the state neither required nor authorized an independent investigation by the land office to ascertain the truth of the basic fact asserted in it. The warrant issued, as of course, and the responsibility for the result that, if the land had been previously appropriated no title passed, was left and properly left to rest with the applicant who had voluntarily assumed it. Under such circumstances we cannot see how Strouse could have successfully invoked the aid of the doctrine of' equitable estoppel to ward off the consequences that necessarily flowed from his own mistaken or false representation that the land applied for was vacant land. If he could not, the defendant, whose rights in this respect rise no higher than his, cannot.

This conclusion is strengthened if we glance briefly at the reason on which the rule of the law, in such cases, is founded. The rule itself is well stated in the following language taken from 11 Am. & Eng. Ency. of Law (2d ed.), 402, 403, in an article where the entire subject is reviewed and many cases cited“The rule has been laid down that if a man has made a solemn deed with covenants of seizin and warranty, or for quiet enjoyment and further assurance, it shall never lie in his mouth to dispute the title of the party to whom he has so undertaken, as for instance, by setting up a prior paramount title in himself or in a third person.” And the reason of the rule is thus stated by Rogers, J., in Shaw v. Galbraith, 7 Pa. 111: “Circuity of action, as my Lord Coke says, Co. Litt. 265a, is not favoured in law. The principle is founded on this consideration, that it would be against equity to allow the grantor to recover the land, thereby breaking his covenant and exposing himself to an action to recover its value. The principle is recognized in several analogous cases. Thus in McCrackin v. Wright, 14 Johns. 193, and in Jackson v. Bradford, 4 Wend. 619, it is ruled: That, in a deed of bargain and sale, no estate passes, except what is in esse at the time of the grant; but where title is afterwards acquired and there is a warranty in the deed, to avoid circuity of action it operates as an estoppel. Where there is a warranty in the deed, the warranty will rebut and bar the grantor and his heirs-of a future fight. This is not, as is there said, because the title ever passes by such grant; but the principle of avoiding circuity of action interposes and stops the grantor from impeaching a title, to the soundness of which he must answer on his warranty.”

From this it would logically follow that the rule has no application to the maker of a mere quitclaim deed containing none of the covenants above referred to. And so the law hath been declared to be: Bigelow on Estoppel, 384.

■ Under our land laws the warrantee in a descriptive warrant becomes vested with an inchoate title to the land as soon as his warrant issues. The survey, its return and acceptance, and the payment of the purchase money ripen this into a perfect title as “against all the world but the commonwealth, which has itself the legal title only as security for the patenting fees. On the payment of them, the owner has a right to a patent, which, however, as to all third persons, gives him no better title than he had before. The patentee, like the Commonwealth, is but a trustee for the true owner:” Hoffman v. Bell, 61 Pa. 444. See also Kelly v. Graham, 9 Watts, 116; Canal Co. v. Dimock, 47 Pa. 393. When we thus consider the warrant and patent, either with an eye to their form and structure, or to their nature and effect, it appears that neither contains any one of the covenants that would justify the application to them of a rule of law which exists only to prevent the breach of such covenants.

But even if Strouse, the patentee, were in a position to invoke the aid of the rule we have been considering, he himself should be estopped from doing so because, as we have seen, he was the original actor in the transaction and ought not to be permitted to gain any advantages from the acts of the state’s officers, when those acts were brought about by his own mistake or misrepresentation as to the character of the land described in his application.' “The setting up of an estoppel by deed may be prevented by an estoppel in pais as against the grantee. An estoppel against an estoppel, as Lord Coke says, setteth the matter at large:” 11 Am. &. Eng. Ency. of Law (2d ed.), 392.

Whilst, in the record before us, the question we have been discussing is somewhat irregularly presented, yet recognizing its wide reaching importance to the state, in attempting to carry out the broad policy inaugurated by the legislature in the creation of the forestry commission, we have thought it best to give it our attentive consideration and state, at some length, the reasons that lead us to the conclusion we have reached.

Upon the trial the defendant relied mainly, if not entirely, on a title acquired under the statute of limitations. It appeared that in 1883, or just prior to that year, Pardee, the rightful owner, having learned that timber was being cut on his lands, sent a party of surveyors and others to ascertain the facts. They went, inter alia, upon the land covered by the Strouse warrant and patent, ran its lines, counted and measured the trees and timber that had been cut and made a report to Pardee.

He issued a capias in trespass against Joseph H. Knepp, who was the successor in title to Strouse. From testimony, practically undisputed, it appears that Knepp, in response to that writ, went, to Lewisburg and made an amicable settlement with Pardee for the timber thus charged to have been cut. The learned trial court held, and we think rightly, that the institution of this action would toll the statute, but submitted to the jury to find, from all the evidence, whether or not a complete title, by adverse possession, had accrued to the successor of Strouse, prior to the bringing of the action. The plaintiff, alleging there was no sufficient evidence to warrant an adverse finding in this respect, craved binding instructions in favor of the commonwealth.

Whilst our law raises no presumption against a title acquired by adverse possession, it certainly raises none in its favor. Upon him who asserts such a title, the burden of proof rests, with a constant pressure, to establish, during the entire statutory period, the existence of every element out of which such a title must rise. His situation is well described by Clark, J., in Olewine v. Messmore, 128 Pa. 470, in the following language, viz.: “Adverse possession of land may be said to be founded in trespass, but it must be- a trespass constantly continued by acts on the premises. It must challenge the right tó all the world. The claimant must, in the language of Mr. Justice Gibson, ‘keep his flag flying and present a hostile front to all adverse pretensions.' ”

We have already seen that no residence was ever established by any one on the Strouse warrant as distinguished from the Knepp warrant. If any possession, legally speaking, was ever’ taken of the former it was by those who claimed and finally established title to the latter. It does not appear that any of the witnesses, who ■ testified for the defendant, knew, until in recent years, the location of the division line between the two warrants. As a result of this much of the evidence is so vague, as to locality, that it is impossible to determine whether it applied to the land on the one side or the other of the division line. Giving to the defendant, however, the benefit of every inference that can rightfully be drawn from the facts testified to, concerning the land embraced in the Strouse warrant, it appears that Strouse conveyed to one William Steininger by a deed which was never recorded, and was destroyed by fire long before the trial. He established a residence on the Knepp warrant and began to clear and cultivate that tract, but the evidence discloses no entry by him on the Strouse warrant. He was succeeded by his son Eli, who 'also resided on the Knepp warrant. There is evidence to support a finding that about 1860 or 1861 he made an encroachment on the Strouse warrant and cleared and fenced a small patch, containing from three to seven acres, just across the division line. His daughter Mrs. Wagner testifies that she helped to clear land, probably although not certainly over ■the line, and saw wheat and corn growing there. She does not attempt to give any date nor say whether both crops grew in the same year on parts of the patch or in different years. Joseph Snook testified he worked for Steininger in 1860 and 1861; that there was cleared and fenced a field on land now claimed by the state, “about three acres or along there;” and that to his knowledge Steininger one year had a crop of corn in that field.

■ ' Steininger sold’ to Nerr Bishop probably in the fall of 1874, and the latter held this title until in 1876 when he sold to Wagner, the son-in-law of Steininger. Bishop never cultivated this land nor does he know of any crops being raised on it. He says "it was not what we call farming land;” it was badly grown up in brush and briars, “but it was pretty good land when you got it cleared up a little.”

Wagner testifies that he farmed this land whilst he had it from 1876 to 1880, “had it out in wheat, corn and oats them four years that I lived there.” Rev. Dean testifies he saw that clearing on the Strouse tract thirty to forty years before 1907; that he once saw potatoes and buckwheat there, but “I didn’t see any crops on after that, on that field.” Joseph Knepp, who acquired this title about 1880 or 1881, knew the land when Steininger lived there; knew the cleared patch above the state line and saw Steininger once have that in corn and wheat. M. L. Wert learned recently the location of the state line; he testified that he had seen cleared land above it, about four acres; had the appearance of an old field, but never saw a crop growing on it.

Passing by without comment the testimony of one or two witnesses that furnished nothing of value towards establishing the main point in controversy, we have now before us all of the substantive proof that the defendant was able to offer in support of his theory that, during a period of twenty-one consecutive years or more, prior to 1883, his predecessors in title had continuously maintained adverse possession, by cultivation, of a portion, however small, of the Strouse warrant.

If we subtract, from the testimony wé have adverted to, that which applies only to the last six.years óf the period, from 1876 to 1882, it must be apparent we have, in what remains, a foundation too scant and weak to support, during fifteen years, a possession by cultivation that must have been not only open, visible and hostile, but continuous and uninterrupted. In Sorber v. Willing, 10 Watts, 141, Gibson, C. J., says: “Now to leave the fragments of a ruined sawmill on the land, is no more indication of a retained possession, than to leave the fragments of a ruined fence on it, or a waste field with sprouts and saplings.”

Had the rightful owner gone upon his land in 1874-75 and observed, with his own eyes, the conditions described by Bishop, the defendant’s witness and predecessor in title, he would have seen no “flag flying” to warn him of a then present hostile occupancy of his land by a stranger, and to challenge him to put his right to the proof or lose it. Even if we do not regard the statement of Bishop, although uncontradicted, as conclusive upon the defendant, it cannot be denied that it is overwhelmingly corroborated by the very meagerness of the proof of the extent of the cultivation in the preceding years.

We are not unmindful of the fact that our courts, in construing the term “cultivation,” have recognized that, in the customary rotation of crops and the proper care of tilled land, the soil must occasionally, for a reasonable period, be permitted to rest from the burthen of the annual production of harvests. But we can find neither reason nor authority for the proposition that an intruder, basing his claim on an alleged continuous cultivation of the land for twenty-one years or more, should recover as against the rightful owner, where the record exhibits the paucity of proof that here confronts us.

We áre of the opinion therefore that the evidence submitted by the defendant was insufficient to make out all of the essential ingredients of a good title by adverse possession and the learned trial court should have affirmed the plaintiff’s point for binding instructions. The damages fixed by the testimony were nominal, $1.00, and as the action was amicable, to test the question of title, a judgment for'such nominal damages will settle the real controversy.

The judgment is reversed and judgment is now entered for the plaintiff for $1.00 damages, together with costs of suit; the costs of this appeal to be paid by the appellee.


author: Morrison, J.,

text:
    Commonwealth v. Swartz, Appellant.

      Criminal law — ■Misconduct of district attorney — Continuance of case.

    Where in the trial of a criminal case the district attorney in cross-examining a witness says after the witness has answered a question: “That is a lie,” and objection is immediately made to the remark, the court should grant the request that a juror be withdrawn and the case continued. If this is not done and a conviction results the conviction will be set aside by the appellate court.
    Argued Oct. 7, 1908.
    Appeal, No. 139, Oct. T., 1908, by defendant, from judgment of Q. S. Lehigh Co., April T., 1908, No. 23, on verdict of guilty in case of Commonwealth v. Albert E. Swartz.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Indictment for conspiracy.
    The indictment was as follows:
    “The Grand Inquest of the Commonwealth of Pennsylvania, inquiring for the County of Lehigh, upon their respective oaths and affirmations, do present, that A. E. Swartz, late of the said County, Yeoman, on the eighteenth day of March, in the year of our Lord one thousand nine hundred and eight, at the County aforesaid, and within the jurisdiction of this Court, with force and arms, etc., did fraudulently, maliciously and unlawfully conspire, combine, confederate and agree to and with one William Lawson and others to this grand inquest unknown, to do an unlawful act, to wit, that he the said William Lawson falsely represent and personate one Elmer Frey, alias Elmer Freeman who was found guilty of Perjury in the Court of Quarter Sessions of Lehigh County of January Sessions, 1907, and to appear before said Court and personate and represent himself as being the said Elmer Frey, alias Elmer Freeman, who was found guilty upon the charge aforesaid and then and there to take the place of Elmer Frey, alias Elmer Freeman, and to receive, serve and’ comply with whatever sentence said Court might impose upon the said Elmer Frey, alias Elmer Freeman, whose person said William Lawson was then and there to falsely represent and personate, and for the performance of aforesaid representation and personation by the said William Lawson, the said A. E. Swartz agreed to pay the said William Lawson a certain sum of money of the United States of America (a further description of which this grand inquest is unable to give), thereby perpetrating a willful and malicious fraud upon the Court of Quarter Sessions of Lehigh County, and hindering and obstructing public justice, and against the peace and dignity of the Commonwealth of Pennsylvania.
    “And the Grand Inquest, aforesaid upon their respective oaths and affirmations aforesaid, do further present that the said A. E. Swartz did fraudulently, maliciously and unlawfully conspire, confederate and agree with one William Lawson and others to this grand inquest unknown to cheat and defraud the Lehigh County Law Library Association of Lehigh County, Pennsylvania, and the" County of Lehigh, state aforesaid, of their moneys, goods and chattels, to wit: the sum of Five Hundred Dollars by the said William Lawson agreeing to and with the said A. E. Swartz to falsely represent and personate one Elmer Frey, alias Elmer Freeman, who was convicted of the crime of Perjury in the aforesaid Court of Quarter Sessions of January Sessions, 1907, and for whom the said A. E. Swartz had entered into a recognizance with the Commonwealth of Pennsylvania in the sum of Five Hundred Dollars for the appearance of the said Elmer Frey, alias Elmer Freeman, before said Court and to falsely present and personate himself as being the same Elmer Frey, alias Elmer Freeman, who. was found guilty of Perjury in aforesaid Court, and then and there to receive whatever sentence said Court might impose upon the said Elmer Frey, alias Elmer Freeman, and to comply and to serve such sentence, thereby intending by said personation and compliance with the sentence then and there to be imposed by aforesaid Court, to cheat and defraud the Lehigh County Law Library Association and the County of Lehigh out of the sum of Five Hundred Dollars by preventing the forfeiture of the aforesaid recognizance; contrary to the form of the Act of the General Assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”

      The facts appear by the opinion of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned appear by the opinion of the Superior Court.

      Arthur G. Dewalt, with him Dillinger & Schwartz, for appellant.
    It was reversible error for the court to deny the motion of the counsel for the defendant for the withdrawal of a juror, under the circumstances set forth and alleged in the assignments of error in this regard: Com. v. Striepeke, 32 Pa. Superior Ct. 82; Com. v. Viele, 33 Pa. C. C. Rep. 333; Wagner v. Hazle Township, 215 Pa. 219; Saxton v. Rys. Co., 219 Pa. 492; Com. v. Bruner, 11 Pa. C. C. Rep. 428; Hollis v. U. S. Glass Co., 220 Pa. 49; Freeman v. Traction Co., 36 Pa. Superior Ct. 166; Walsh v. Wilkes-Barre, 215 Pa. 226; Com. v. Smith, 10 Phila. 189; Com. v. Nicely, 130 Pa. 261.

      Fred. B. Gernerd, district attorney, for appellee.
    The court committed no error in refusing to withdraw a juror: Com. v. Windish, 176 Pa. 167; Com. v. Mudgett, 174 Pa. 211; Com. v. Smith, 2 Pa. Superior Ct. 474; Com. v. Dorman, 22 Pa. Superior Ct. 20; Com. v. Weber, 167 Pa. 153.
    The general conduct of a trial is largely within the discretion of the judge presiding; and it is only when some abuse of that discretion is clearly shown that an appellate court will interfere: Com. v. Eisenhower, 181 Pa. 470; Com. v. McMahon, 14 Pa. Superior Ct. 621; Com. v. Mudgett, 174 Pa. 211; Com. v. Striepeke, 32 Pa. Superior Ct. 82; Com. v. Greason, 204 Pa. 64; Shaffer v. Coleman, 35 Pa. Superior Ct. 386; Com. v. Salawich, 28 Pa. Superior Ct. 330.
    December 7, 1908:
   Opinion by

Morrison, J.,

The defendant was convicted on an indictment containing two counts, charging conspiracy, and, after sentence, appealed to this court. It is contended that the defendant was only convicted under the first count of the indictment and that said count is not sufficient in law to sustain the conviction. If it is not sufficient under any statute, we consider it a good common-law count: Wilson v. Commonwealth, 96 Pa. 56; Com. v. Brown, 23 Pa. Superior Ct. 470; Com. v. Stambaugh, 22 Pa. Superior Ct. 386. After reciting the facts it concludes as follows: “thereby perpetrating a willful and malicious fraud upon the Court of Quarter Sessions of Lehigh County and hindering and obstructing public justice and against the peace and dignity of the Commonwealth of Pennsylvania.” The second count sufficiently charges a conspiracy and indeed no criticism upon it is made, except the contention that the court did not submit it to the jury. We do not find that the record sustains this contention. There was a general plea of not guilty to the indictment and the verdict of the jury was a general one of guilty.

We find eleven assignments of error in the record, but after a careful examination we are unable to sustain any of them, except the tenth, and we regret having to sustain that assignment because otherwise the case seems to have been carefully tried and although the charge is assigned for error as a whole, we consider it adequate and impartial. The tenth assignment is as follows: “ A witness being upon the stand by the name of Edwin Mills and having testified after having been sworn, and the district attorney of the county saying, in the presence of the jury, so that all the jury could hear what was said: 'that is a lie,’ the counsel for defendant asks for the withdrawal of a juror and the ruling of the court upon that.” Ruling of the Court: By the Court: “A witness on the stand in response to a question by the district attorney, was volunteering as to certain transactions in the office at Wilkes-Barre of District Attorney Salisbury. The district attorney said in open court, when the witness had volunteered the answer, what the court understood to be, 'that is a lie.’ The district attorney’s version of the matter is that he said, 'then it is a lie.’” Note, by the Court: “ Mr. Kline, assisting the district attorney, said that he understood the words to have been, 'then it is a lie.’ The district attorney said that he had no recollection of having said the words in the form alleged by Mr. Dewalt, but gave a different version of the affair. The motion for the withdrawal of a juror is overruled, and a bill sealed for the defendant.”

The eleventh assignment is in effect that the court erred in overruling the defendant’s motion to withdraw a juror because the district attorney, in his argument to the jury, said of and concerning the defendant, A. E. Swartz, “He has been handling criminals in this court for twenty years,” when there was no evidence of any kind in the case to warrant such a statement, and when the character of the defendant had not been put in evidence, or any witness called to prove his good character.

An examination of the record does not disclose any exception taken to the alleged statement of the district attorney contained in the eleventh assignment and, therefore, it is not in the record arid we cannot consider it. We may say in passing, however, that if the district attorney used said language in his argument to the jury, it seems highly improper.

Referring now to the tenth assignment: The learned court seemed to consider that because the witness, Mills, was volunteering something in response to a question by the district attorney, the latter was, in some measure, less to blame for saying, “that is a lie” than he would have been if the witness’ answer had been responsive to the question. We here quote from the' cross-examination of the witness, Mills, by the district attorney: “Q, You went with A1 Swartz to the City Hotel? A. Yes, sir. Q. Got $5.00 gratis? A. Do you want me to tell you about the $5.00? Q. Did you testify in Alderman Renniger’s office that you never saw this fellow before? A. I told you, Mr. Gernerd, that I met him at Washington street, and that if I had known it was Lawson that I would have arrested him, and I said that at District Attorney Salisbury’s office.” By Mr. Gernerd:■ “That is a lie.” Now the district attorney evidently considered it important to interrogate the witness as to what he testified to at Alderman Renniger’s office, and the answer of the witness denied that he testified there that he never saw this fellow before. We are unable to say that the jury must have understood the language “that is a lie” to apply only to the portion of the witness’ answer which the court considered volunteer testimony. It is not clear that the jury did not understand the district attorney to say that the witness lied-in his responsive answer to the question. The language credited to the district attorney in the tenth assignment was highly improper, and there may have been jurors in the panel whose opinion of the veracity of the district attorney was so high that they would believe his simple statement, not under oath, in preference to-the sworn testimony of the witness. One of the questions at issue in the trial was whether Lawson came into court and impersonated Freeman or Frey and whether this was done at the instance of Albert E. Swartz, the defendant. Upon this question the testimony of Edwin Mills might have had weight with the jury in favor of the defendant, and it was the duty of the district attorney, acting in his official capacity, to permit this evidence to go fairly before the jury, unaffected by his statement, from which the jury might have inferred that the witness; Mills, was a liar. We are not able to say the charge of the court, removed from the minds of the jury the effect that may have been lodged there by this language.

The learned district attorney endeavoring to sustain the court in its refusal to withdraw a juror, cites, among other cases, Com. v. Windish, 176 Pa. 167. But that case sustains what was done in the present case in calling the attention of the court to the improper statement of the district attorney and-getting the same upon the record and securing the ruling of the court thereon and getting an exception thereto. Moreover, in that case, Holden v. Penna. R. R. Co., 169 Pa. 1, is cited. In it the sixth assignment of error was: “In calling the company’s, detective a ghoul with a human face but the heart of a beast.” The Supreme Court sustained that assignment and held the court in error in refusing to withdraw a juror, etc.

In the present case the counsel for defendant seems to have followed the proper method of getting the remarks upon the record and in securing the ruling and exception contained in the tenth assignment, and for present purposes we must assume that the district attorney did say to the witness, “that is a lie.”

In Wagner v. Hazle Twp., 215 Pa. 219, it was said: “When an attorney in the trial of a cause willfully and intentionally makes an" offer of wholly irrelevant and incompetent evidence, or makes improper statements as to the facts in his address to the jury, clearly unsupported by any evidence, which are prejudicial and harmful to the opposite party, it is the plain duty of the trial judge, of his own motion, to act promptly and effectively by reprimanding counsel and withdrawing a juror and continuing the cause at the costs of the client. In no other way can justice be administered and the rights of the injured party be protected.” See Com. v. Weber, 167 Pa. 153.

In Saxton v. Pittsburg Railways Co., 219 Pa. 492, our Supreme Court said: “If courts are to continue to be places where justice is to be judicially administered, causes must be fairly presented and fairly defended, and the duty of counsel in this regard is not less important nor less imperative than that of the judge. A cause is not well tried unless fairly tried, and a verdict obtained by incorrect statements or unfair arguments or by an appeal to passion or prejudice stands on but little better ground than one obtained by false testimony. It is not founded on the truth of the cause.”

In Hollis v. U. S. Glass Co., 220 Pa. 49, our Supreme Court said, as stated in the syllabus: “The bringing to the attention of the jury the fact that the defendant in an action for personal injuries, is insured by an employers’ liability company, is cause for reversal of a judgment, whether done by the admission of testimony or the statement of counsel or the offers of proofs, or by questions asked witnesses or jurors.”

In Freeman v. Traction Co., 36 Pa. Superior Ct. 166, we held that for unwarranted and improper language of counsel, the court should have withdrawn a juror and continued the case, and for failure so to do the judgment was reversed. The above were all civil cases and we apprehend that in a commonwealth case, where the defendant’s life or liberty is at stake, much stronger reasons exist for requiring a quasi judicial officer, such as a district attorney, to keep well within the rules of propriety, fairness and justice.

We are all of the opinion that the present case was well tried except as to the matters raised in the tenth assignment. But for these, the majority of our court feels compelled to reverse the judgment and send the case back for another trial.

The assignments are all dismissed, except the tenth, which is sustained, and the judgment is reversed with a venire facias de novo.


text:
    McGlensey’s Estate.

      Wills — Construction—Remainder—“ Children ” — “ Grandchildren.”

    Under a bequest to children, grandchildren who are the children of a deceased child, are not included, unless it is the clear intention of the testator as shown by the whole will that such grandchildren should be included.
    Where real or personal estate is devised or bequeathed to- such children, or to such child, or individuals as shall attain a given age, or the children who shall sustain a certain character, or do a particular act, or be living at a certain time, without any distinct gift to the whole class, preceding such restrictive description, so that the uncertain event forms part of the description of the devisee or legatee, the interest so devised is necessarily contingent on account of the person.
    Testatrix left one-half of her estate in trust to her son for the term of his natural life, and upon his death without issue the half was to be merged into a trust thereinafter created for the daughter. The other half of the estate was left in trust to pay the income thereof to the daughter for life, and upon the death of the daughter to pay the principal thereof to the children of the daughter as might then be living. The son died without leaving issue. Held, that the children of the daughter living at the latter’s death were entitled to the whole estate to the exclusion of the children of a deceased son of the daughter.
    Argued Oct. 9, 1908.
    Appeal, No. 90, Oct T., 1908, by Thomas B. Harvey, guardian of Henry Hollingsworth Spencer, from decree of O. C. Phila. Co., sustaining exceptions to auditor’s report in Estate of Rebecca McGlensey, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of John A. Clark, Esq., -auditor.
    The case turned upon the construction of the will of Rebecca McGlensey, the testatrix. The material portions of the will were as follows:
    “Item: All the rest, residue and remainder of my estate, real, personal or mixed, I give, devise and bequeath unto my friends, Archibald Randall and Erasmus D. Wolfe, their heirs and assigns, in Trust, to invest the same in good and sufficient bonds and mortgages on real estate in the County or City of Philadelphia, or well secured ground rents bearing interest, and as the interest, dividends or income thereof shall be received in trust to pay one moiety or half part thereof unto my son, John McGlensey, for his sole and separate use during the term of his natural life, but so that the same shall not be liable for any debts, contract or engagement he may make; and after the death of my son John, then to pay the said moiety or half part of such income to the issue lawfully begotten of my said son John (should he have such issue) in equal parts or shares until one of said issue shall attain the age of 21 years or marry, when the principal of said moiety or half part of my estate shall be equally divided among such issue; but if my said son shall die without issue or if none of said issue shall attain the age of 21 years or marry, then the said moiety or half part shall be held for the uses and trusts hereinafter declared as to the other moiety.
    “And as to the other moiety or half part of my estate and the interests and dividends arising therefrom, I direct the same to be held in trust to pay the dividends and interest thereof as the same may be received unto my daughter, Katharine Ann Spencer, wife of Henry W. Spencer, for her sole and separate use during all the term of her natural life; and from and immediately after her decease to pay the said dividends and interest unto such of the children of my said daughter as may survive her in equal parts or shares until one of said children shall attain the age of 21 years or marry, when the principal of said moiety shall be equally divided among such of her children as may then be living. But if my said daughter shall die without issue or if none of said issue shall attain the age of 21 years or marry, then the said moiety or half part of the trust shall be held for the same uses and trusts as hereinbefore declared as to the other moiety.
    “But if both of my said children shall die without issue, or if none of such issue shall attain the age of 21 years or marry, then I direct the whole of the interest or dividend of the said residue to be paid to my sister, Mary Shedaker, during the term of her natural life, and immediately on the decease of my said sister then the whole residue of my said estate shall be equally divided among the children of my said sister in equal shares or proportions, provided that if any of the said children shall be then dead leaving issue, such issue shall be entitled to the share or part his, her or their parents would have been entitled to if living.”
    Other facts appear by the opinion of the Superior Court.

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

      Albert P. Gerhard, for appellant.
    The intention was to include grandchildren: Eichelberger's Estate, 5 Pa. 264; Campbell’s Estate, 202 Pa. 459; Chew’s App., 37 Pa. 23.

      John 8. Gerhard, for appellee.
    “Children” does not include “grandchildren:” Reck’s App., 78 Pa. 432; Hallowell v. Phipps, 2 Wharton, 376; Hunt’s Est., 133 Pa. 260; Castner’s App., 88 Pa. 478; Tyson’s Est., 191 Pa. 218; Lewis’s App., 18 Pa. 318; Gable’s Est., 40 Pa. 231; Craige’s App., 126 Pa, 223; Rudy’s Estate, 185 Pa. 359; Delbert’s App., 83 Pa. 462; Adams’s Est., 208 Pa. 500.
    December 7, 1908:
   Opinion by

Morrison, J.,

The question involved in this case arises under the will of Rebecca McGlensey and is stated by appellant’s counsel thus: “ Do the words ‘ such of the children of Catharine Ann Spencer as may survive her ’ include a grandson, a son of a deceased child?” The learned auditor below answered this question in favor of the grandson, but on exceptions filed by Katharine Giles, the surviving child of Catharine Ann Spencer, the court below sustained the exceptions to the auditor’s report as follows: “March 27, 1908, the exceptions to the auditor’s report are sustained, and the fund is awarded to Katharine Giles, the surviving child of Catharine Ann Spencer.”

The testatrix, by will dated June 3, 1840, gave the residue of her estate as to one moiety in trust to her son, John Mc-Glensey, for the term of his natural life, and upon his death, without issue, such one-half should be held for the uses and trusts declared as to the other moiety under said will. John McGlensey departed this life on April 15, 1841, without leaving issue, and the entire income of the estate was paid under the terms of the will of testatrix to her surviving daughter, Catharine Ann Spencer, during the term of her natural life. The will further provided that from and after the decease of the said Catharine Ann Spencer, the trustees were to pay the income unto such of the children of the said Catharine Ann Spencer as might survive her, in equal shares or parts, until one of the said children shall attain the age of twenty-one years or marry, when the principal shall be equally divided among such of her children as may then be living. But if the said daughter shall die without issue, or if none of such issue shall attain the age of twenty-one years or marry, then the said moiety or one-half part of the said estate shall be held for the same uses and trusts as hereinbefore declared as to the other moiety. The following paragraph of the will then disposes of the trust estate in the event of both of the children of the testatrix dying without issue, etc. But as the son died without issue, arid the daughter died leaving a child, Katharine Giles, the contingency referred to by the paragraph last mentioned did not arise.

The learned court below adopted the construction of the will which gave the trust estate to Katharine Giles, daughter of Catharine Ann Spencer, to the exclusion of Henry Hollinsworth Spencer, a minor, who was the only child of Henry Worthington Spencer, a deceased son of said Catharine Ann Spencer. It thus appears that he was a grandson of said Catharine Ann Spencer and great-grandson of the testatrix. The learned auditor was of the opinion that the will placed this grandson on equal footing with Catharine Giles, daughter of Catharine Ann Spencer.

A careful consideration of the will leads us to the conclusion reached by the learned court below.

The real questiori is, what is the meaning of the language adopted by the testatrix when she says: “unto such of the children of my said daughter as may survive her,” and again, “such of her children as may then be living”? It must be conceded that it is not the common and ordinary rule for people to speak of grandchildren as children. It is practically the universal rule for parents to mean their own children when they speak of children, and it is just as common for them to use the word “ grandchildren ” in speaking of the children of their own children. It is true that it has been held that the term “ children ” includes grandchildren, but this in all cases depends upon the intention of the testator as gathered from the entire will. In Reck’s Appeal, 78 Pa. 432, the opening sentence of the opinion by Mr. Justice Sharswood reads: “All mere technical rules of construction must give way to the plainly expressed intention of a testator, if that intention is lawful. It is a rule of common sense as well as law not to attempt to construe that which needs no construction.”

In the will under consideration, Rebecca McGlensey said in plain English that after the death of her daughter, Catharine Ann Spencer, the income was to be paid unto such of the children of Mrs. Spencer as may survive her, and she follows this by saying that the principal shall be equally divided among such of her children as may then be living, meaning at the time of the death of the said Catharine Ann Spencer. The auditor held that in this connection the word “children” means “grandchildren.” The learned court below held exactly the opposite.

In Hallowell v. Phipps, 2 Wharton, 376, our Supreme Court (p. 379) held: “Under a bequest to children, grandchildren .and other remote issue are excluded, unless it be the apparent intention of the testator, disclosed by his will, to provide for the children of a deceased child. But such construction can only arise, from a clear intention or necessary implication; as where there are not other children than grandchildren, or when the term ‘children’ is further explained by a limitation over, in default of issue. The word ‘children’ does not ordinarily, and properly speaking, comprehend grandchildren, or 'issue generally. Their being included in that term, is only permitted in two cases, viz.: from necessity, which occurs when the will would remain inoperative, unless the sense of the word ‘children’ were extended beyond its natural import; and where the testator has clearly shown by other words that he did not intend to use the term 'children,’ in the proper actual meaning, but in a more extensive sense.” In Hunt’s Est., 133 Pa. 260, this case of Hallowell v. Phipps is cited with approval by Mr. Justice Green, and it is also cited in Harrison’s Est., 202 Pa. 331.

In Castner’s Appeal, 88 Pa. 478, Mr. Justice Sterrett said in the last paragraph of his opinion (p. 492): ''It may be that the testator intended that his grandchildren, the appellants, should, together with his surviving children, be beneficiaries of the continued trust, but if he did, he failed to use language expressive of such intent; on the contrary, we think the language employed evinces a contrary intention.” In that case the language used by the testator was, ''but if either of my said daughters shall die without leaving issue, and without any last will and testament, then it is my will and desire that the share or portion of such daughter shall be continued under the same trusts as hereinbefore provided, for the use and benefit of my surviving children in equal proportions, in the same manner as hereinbefore directed as to the residue of my estate.”

In Tyson’s Estate, 191 Pa. 218, it is said by our Supreme Court: ''The cardinal rule in the interpretation of wills is to find the testator’s intent, and by that is meant his actual, personal, individual intent, not a mere presumptive conventional intent inferred from the use of a set phrase or a familiar form of words.”

Campbell’s Est., 202 Pa. 459, was relied upon by the auditor, but that case expressly holds that the word “children” does not ordinarily include “grandchildren,” but from that will the intention of the testator was found to include grandchildren.

In Gable’s Executors, 40 Pa. 231, it was held: “The auditor, however, made a clear mistake in his construction of the will of the testator by thinking that children included grandchildren.”

It is contended further that the remainder in controversy was vested in the son and daughter of Catharine Ann Spencer, subject to her life estate, and Chew’s Appeal, 37 Pa. 23, is cited in support of that decision. But the question of whether a remainder is to be considered vested or contingent is to be gathered from the four corners of the will. In Mulliken v. Earnshaw, 209 Pa. 226, it was said by Mr. Chief Justice Mitchell (p. 230): “In the present case there is no room for doubt as to the actual intent of the testator. His words are, after a devise to his widow for life, 'and from and immediately after her death or marriage, I give and devise my said real estate unto my children then living, and the issue of any that may be deceased, in equal parts and shares absolutely and in fee simple the issue of any deceased child to take only the deceased parent’s share.’ All these remainders are clearly contingent.”

In the present case the remainders belong to the class in Craige’s Appeal, 126 Pa. 223: 'Where real or personal estate is devised or bequeathed to such children, or to such child, or individuals as shall attain a given age, or the children who shall sustain a .certain character, or do a particular act, or be living at a certain time, without any distinct gift to the whole class, preceding such restrictive description, so that the uncertain event forms part of the description of the devisee or legatee, the interest so devised is necessarily contingent on account of the person.” This doctrine was again expressly affirmed in Reilly’s Est., 200 Pa. 288; also in Raleigh’s Est., 206 Pa. 451, and it fits the present will precisely.

In our opinion, reading the will from its four comers, indicates that the testatrix intended, in the contingency of her son John dying without issue, and her daughter Catharine Ann Spencer dying leaving a child or children, that the trust estate should vest in the latter, and that the will does not show an intent to include within its provision grandchildren of Catharine Ann Spencer.

The appeal is dismissed and the decree is affirmed at the costs of the appellant.