text:
    Scheafer v. Iron City Sand Company, Appellant.

      Negligence — Sidewalks—Coal hole — Contractor.
    Where a contractor for the construction of a building, having full control over the building as if he were owner, opens a coal hole in the sidewalk and directs the driver of a sand dealer to shovel sand into the coal hole, and while the latter is doing so, a pedestrian falls into the hole, which was in no way guarded, the sand dealer is not hable for the injuries sustained.
    Argued April 23, 1805.
    Appeal, No. 130, April T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1902, No. 427, on verdict for plaintiff in case of Robert J. Scheafer, minor, by his next friend and mother, Mary Scheafer, and Mary Scheafer in her own right, v. Iron City Sand Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad viand Head, JJ.
    Reversed.
    Trespass to recover damages for personal injuries, sustained by a fall in a coal hole in a sidewalk. Before Collier, P. J.

      Verdict and judgment for plaintiff for $1,082.50. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Stephen Stone, of Stone Stone, for appellant.
    — One not personally interfering, or giving directions respecting the manner of work, but contracting with a third person to do it, is not responsible for a wrongful or negligent act in the performance of the contract, if the act agreed to be done is legal: Harrison v. Collins, 86 Pa. 153.

      E. J. Smail, with him Thomas L. Kerin, for appellees.
    — The party who places or is responsible for permitting an obstruction in the highway is liable to one injured thereby : Gates v. Penna. R. R. Co., 150 Pa. 50; Beatty v. Gilmore, 16 Pa. 463; McNerney v. Reading City, 150 Pa. 611; Bruch v. Philadelphia, 181 Pa. 588.
    October 5, 1906:
   Opinion by

Head, J.,

There is no serious contention between the parties as to the material facts in this case. The owner of a large building on Fourth avenue, a busy street in the city of Pittsburg, had turned it over, to a contractor for the purpose of having extensive repairs made. At the time of the accident the contractor had the full possession and control of the building and may be considered, for the purposes of this case, as standing in the shoes of the owner, exercising the same fights and subject to the same obligations, as to the use of the building, that would ordinarily attach to' the owner. The ground under the sidewalk in front of the building had been excavated, as is customary in cities, for a coal vault, into which material could he delivered from the street through an opening in the sidewalk commonly known as a coal hole. The contractor ordered a load of sand from the appellee and shortly thereafter a loaded wagon, in charge of one of the sand company’s drivers, reached the building. He was told by a representative of the contractor that the sand was to be delivered through the coal hole into the vault beneath and that the covering would-be removed and the hole opened so that he could shovel the sand from the wagon at the curb directly into the vault. The hole was opened from the inside, not by the driver of the wagon, but by someone acting for the contractor. No barricade was erected around the hole, nor does it appear that any person was placed on the sidewalk to warn the public of the opening. While the sand was thus being delivered the plaintiff, a telegraph messenger boy, was passing down the street about ten o’clock in the morning and, not noticing the opening, fell into it and was injured. He brought an action against the sand company to recover damages, alleging a negligent breach of its duty, from which his injury resulted. The learned trial court refused the defendant’s point for binding instructions and entered judgment on a verdict in favor of the plaintiff, from which judgment this appeal is taken. It may also be mentioned as an interesting if not important fact that the plaintiff had already recovered a verdict against the contractor in a similar action, although the offer of the record so showing was refused on the trial of this case.

The first assignment of error challenges the right of the plaintiff to recover on the broad ground that the evidence fails to disclose any act of negligenee on the part of the defendant, or, in other words, that under the law and the facts it owed to the plaintiff no duty in regard to the open coal hole, in a breach of which may be found the proximate cause of his in-julT-

Generally speaking the law imposes on a municipality the duty of keeping the streets and sidewalks thereof in a safe condition for the use of the traveling public, and clearly enough, within well-known and established conditions, it must answer for any injury resulting from a breach of that duty. The owner of a building in a populous city is permitted, ex necessitate, to excavate the ground under the sidewalk and make an opening in the latter to enable him to utilize the space so obtained and thus qualify, to a degree, the general right of the public to the exclusive use of the sidewalk for passage. It would not strips even a layman as singular that the law\ should impose on such owner, as a compensation for his privilege, the duty of reasonably safeguarding his opening so as to fairly protect the public in its ordinary use of the street, but still, from the same necessity, leaving on the traveler the duty to avoid those open and palpable dangers of the existence of which the use of his own senses would admonish him. Of course, if a trespasser or wrongdoer in the commission of a tort were to create a pitfall in the steet, to the injury of one lawfully using the way, he would'be held responsible for the consequences of his act. With all these varying obligations the courts and writers of standard text-books have abundantly dealt, and were our case in any of these categories, we would find that authority had clearly blazed the way leading to a correct solution of it. But'neither the industry of counsel, nor any independent examination of the subject we have been able to make, has led to the discovery of any decision by a court, or discussion by a text-writer, that would affirm the responsibility of the present defendant for the injury suffered by the plaintiff, or suggest a sound reason on which such responsibility could be predicated. The driver of the sand wagon did not open the coal hole. He could not have done so without trespassing on the rights of the owner. He had no control over it. It was neither constructed, maintained nor used for the convenience of the sand company. It served the purposes of the owner. It was a matter of indifference to the defendant whether the sand was delivered in the coal hole, on the sidewalk or on the margin of the street whence it could be carried into the building. The sand company and its driver were engaged in a lawful business, and in so far as it may be fairly said that they were using the coal hole at all, as distinguished from the use by the owner, they were subjecting it but to the natural and ordinary use for which it was made. Can such use be said to be a negligent act on the part of this defendant ? It seems anomalous to say, because the law imposes on an owner the performance of certain duties as the condition on which he may permanently maintain and use a coal hole in a sidewalk, the same responsibility must be* shouldered by every merchant dealing in coal, sand, lime ox-other like materials, who, at the instance and for the convenience of the owner, delivers such material into the receptacle prepared by him. To make the point more clear let us take a more marked illustration which will not in any way change the principle involved. If an owner of a building on a busy stre.et, for the purpose of rendering access to his basement more convenient for himself, his tenants, servants and those who visited or dealt with him, should maintain and use an open, unguarded and dangerous cellar-way in the sidewalk, it will be conceded he would be responsible fqr the injury happening to a passer-by who, without fault of his own, fell into it. The municipality which, after notice, actual or constructive, of the existence of such dangerous place, permitted its maintenance, might also incur liability. But if a huckster with a sack of potatoes on his shoulder or a butcher’s boy with a roast were in the act of delivering them to the basement, and using the area-way for that purpose, at the moment a traveler on the sidewalk fell into it, to hold them responsible for the resulting injury would be to border closely on the absurd. If the}', however, owed no duty to the injured person, notwithstanding the fact they were making a temporary use of the dangerous opening in the sidewalk, it Is impossible, we think, to say logically, that there was any breach by this defendant of any duty to the plaintiff or, in other words, that it was guilty of any act of negligence.

No good purpose would be subserved by reviewing in detail the cases cited in the briefs of counsel. They all deal.with the duties that either the municipality or the property owner owed to the injured person or to each other. In no one of them has it been held or inf,¡mated that a person suffering an injury, under conditions -like those that now present themselves, could recover therefor from one who occupied no such relatieir’towards him as the municipality or the property owner, who wras in no way charged with the duty of keeping the streets and sidewalks free from dangerous obstructions, who had not himself placed or caused to be placed in the way of the traveler any such obstruction, and who was, at the time of the injury, engaged in the transaction of his lawful and usual business.

* A coal hole constructed like the one under consideration is not an unlawful and criminal nuisance per se. The right to construct and use it is a concession made by the public to the property owner, growing out of the necessities of modern urban life. True, the public exacts a consideration for the grant and this consideration the property owner, by accepting it, agrees to pay. The municipality, which is the guardian and rep resentative of the public, must see that this contract is carried out or accept the liability that usually attaches to a surety where his principal makes default. To hold that the defendant in this case was obliged to build a barricade around the hole opened by the owner of the building, or see that the owner complied with his duty in that respect, or else drive away with the sand undelivered, would be tantamount to a prohibition of the use of such openings.

It is the function of the law to secure to the traveler a reasonably safe passage over the public streets and this it aims to do by holding the municipality and the property owner to a strict performance of their well-defined duties in this regard.. But it is not its object to uselessly interfere with or destroy any of those adjuncts to the performance of the usual avocations of men, brought into existence by the common necessities of the ever-increasing populations of our cities and towns.

We think, therefore, the first assignment of error must be sustained, and as that necessarily results in the destruction of tlie plaintiff’s case there is no occasion to consider the remaining assignments.

Judgment reversed.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Lavia v. Kountz Brothers Company, Appellant.

      Negligence — Master and servant — Dangerous explosive — Instruction as to work.

    Where a common workman, without any scientific knowledge of explosives, is set to work by his employer in disentangling and straightening wires connected with dangerous explosive caps used in quarrying, and is given no warning of danger, and no instructions as to how to do the work, and is injured by an explosion in the course of his work, the employer is liable for the injuries sustained.
    Argued April 23, 1905.
    Appeal, No. 135, April T., 1906, by defendant, from judgment of C. P: No. 3, Allegheny Co., Feb. T., 1903, No. 495, on verdict for plaintiff in case of Gaetano Lavia v. Kountz Brothers Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Evans, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $700. Defendant appealed.

      Errors assigned were in refusing binding instructions for defendant.

      B. B. Petty, with him D. F. Patterson, for appellant,
    cited: Fletcher v. Traction Co., 190 Pa. 117; De Grazia v. Piccardo, 15 Pa. Superior Ct. 107 ; Wojciechowski v. Sugar Refining Co., 177 Pa. 57; Higgins v. Fanning, 195 Pa. 599; Spees v. Boggs, 198 Pa. 112.

      F. C. McGirr, of Marrón & MeGirr, for appellee.
    October 5, 1906:
   Opinion by

Head, J.,

The single assignment of error in this case complains of the refusal of the learned court below to withdraw the case from the consideration of the jury and direct a verdict for the defendant. The defendant was engaged in the manufacture of brick. It obtained the material for the brick from the clay bank or quarry by blasting. Holes were drilled, of a proper depth, in the clay or rock and charges of powder or dynamite placed therein. An explosive cap was inserted in the charge and from it a wire, which was part of the cap, reached the top of the hole. The end of this wire was then connected with another wire reaching an electric battery located a safe distance away from the hole. By sending an electric current along these wires the cap was exploded and this, in turn, exploded the blasting charge. The testimony delivered by and on behalf of the plaintiff, with the inferences fairly arising therefrom, would, if uncontradicted, have warranted the jury in finding the following additional facts: Although the plaintiff had been in the service of the defendant several years, he ranked on the pay-roll, even at the time of the accident, as- a common laborer receiving wages at the rate of $1.50 per day. His knowledge of the English language was so limited he could not testify without the aid of an interpreter. During a considerable period prior to the accident he had frequently, perhaps generally, put off the blasts himself. He admits that he' had learned by experience that the caps, when operated on in the usual way by the electric current, would explode. He declared emphatically, however, that he had no knowledge they contained such highly explosive agents as would reuder the handling of them, in any way that might result in the application of some force or the production of some friction, extremely dangerous. He further states that he never made any claim to the possession of such knowledge so as to justify or excuse any neglect on the part of his employer in failing to warn or instruct him concerning the existence of such danger, if such failure constituted negligence. That no such warning or instruction was in fact given is conceded. But there is a serious conflict in the testimony, as to the claim of knowledge and experience in handling explosives, made by him when he was hired. But the existence of such a conflict in the evidence upon a material question, even the fact that the weight of the evidence in this regard may have been with the defendant, if that were a fact, cannot aid the latter in sustaining the assignment of error with which we have to deal.

When new caps were purchased from the usual and ordinary sources of supply they came with the attached wires straight and separated so that they might be handled with safety. Some time before the accident the defendant had bought a lot of second-hand caps from a railroad contractor and they had come with their wires badly twisted and tangled. The plaintiff was ordered by the superintendent of the defendant to take a lot of these caps and disentangle and straighten the wires so they could be used. It is clear enough from the testimony of the experts, which is not contradicted, that was a highly hazardous proceeding, one in which even they, with all their knowledge, skill and care, could not engage without imminent danger of injury. Was this risk, to which the plaintiff was subjected by the order of his employer, an extraordinary one, of the danger of which it was the duty of his employer to warn him, or was it the usual ordinary risk incident to his daily regular avocation which the plaintiff must be presumed to have assumed and accepted in entering and continuing in the service of the defendant?

The duty of a master to a servant under such conditions we believe to have been correctly stated by Rice, P. J., in DeGrazia v. Piccardo, 15 Pa. Superior Ct. 107, in the following language: “ When an employee, after having become acquainted with the risks of his situation, accepts them, he cannot complain if subsequently injured by such exposure. By contracting for the performance of hazardous duties, he assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to ascertain. On the other hand, where there are special risks in an employment of which the employee is not, from the nature of the employment, cognizant, or which are not patent in the work, it is the duty of the employer specially to notify him of such risks; and on failure of such notice, if he is hurt by exposure to such risks, he is entitled to recover from the employer in all cases where the employer either was cognizant or ought to have been cognizant of the risks.”

The plaintiff does not appear to have been a man of any scientific knowledge on the subject of explosives. Whatever knowledge he had, according to his testimony, was derived from his experience in handling these caps in the condition in which they ordinarity came and subjecting them to the effect of an electric current in the manner already desciibed. The conditions which surrounded him when, under the orders of his superintendent, he undertook to segregate and separate a tangled mass of them, were novel and wholly outside his own expert ence. It was, therefore, the duty of his master to warn him of the impending danger and instruct him how to avoid it. The law could not presume that he must have foreseen and therefore voluntarily accepted the risk of the danger which resulted in his serious injury. True, the employer seeks to justify or excuse his failure to give such instructions on the ground that the plaintiff represented himself to be a man fully acquainted with the nature, and as a consequence the danger, of the explosives with which he would have to deal. Were the fact so the answer would be complete. But on this vital point came the conflict in the testimony which, of necessity, compelled the submission of the question to the jury. As the manner of the submission is not complained of, the conclusion follows that the assignment of error must be dismissed.

Judgment affirmed.


author: Morrison, J.,

text:
    Harrison’s Estate.

      Orphans’ court — Finding of auditing judge — Fraud—Mortgage.
    A finding of an auditing judge based upon sufficient evidence that a claim against a decedent, based upon a mortgage, was fraudulent, will not be set aside except for manifest error.

      Appeals — Change of ground for claim — Mortgage—Loan—Support of parents.

    Where a person presents a mortgage against an estate of a decedent, and claims in the orphans’ court that it was given for money loaned, he cannot, after having his claim disallowed in the orphans’ court, assert in the appellate court that the mortgage was given by the decedent for the support of the latter’s parents.
    It seems that an infant child of the decedent may not avoid a bond and mortgage given by his father on account of the fraud of the latter.
    Argued April 23,1906.
    Appeal, No. 141, April T., 1906, by-Joseph Herron, from decree of O. C. Allegheny Co., May T., 1905, No. 154, overruling exceptions to adjudication in Estate of Morris B. Harrison, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y and Head, JJ.
    Affirmed..
    Exceptions to adjudication.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the decree of the court.

      Josiah Cohen, for appellant.

      Charles IT. Sachs, of Sachs Hirshfield, for appellee.
    October 5, 1906 :
   Opinion by

Morrison, J.,

The administrator of the estate of Morris B. Harrison, deceased, filed his final account showing a balance for distribution of 11,773.59, proceeds of the personal estate of the decedent. The distribution of this money came before Hawkins, P. J., and all of the testimony was taken before him, and upon consideration and decree filed, he awarded the money to the widow and infant child of the decedent, instead of to Joseph Herron, the appellant, on account of a bond and mortgage which he alleged were given to him by the decedent. The decree of the court was excepted to and, upon consideration, the court dismissed the exceptions and refused to modify or change the decree.

The learned auditing judge said the question involved is, whether or not a certain mortgage was given for value.

It appears in the evidence that the appellant had in his possession a bond and mortgage against Morris B. Harrison for the sum of $7,000, conditioned for the payment of $3,500. These papers were dated March 5, 1903, but the mortgage was not recorded till March 9, 1904, three days before the death of Harrison. The description of the mortgaged land is quite incorrect, and it bears evidence of having been prepared in haste or with great carelessness. It also appears that there was a judgment note against the mortgagor in favor of the appellant for $3,500, but it was not presented as a claim in this hearing.

At the audit the appellant claimed the full amount appearing due upon his mortgage and, the validity of his claim being disputed, he undertook to satisfy the learned auditing judge that the bond and mortgage .were executed and delivered to him for money borrowed by the decedent.

A careful consideration of the evidence discloses several suspicious circumstances connected with this transaction. The learned auditing judge, who has had a very large experience with this class of cases, saw and heard the witnesses and had a much better opportunity of judging of their credibility and the weight of their testimony than we can possibly have on this appeal. The opinion filed clearly indicates his conclusion that the appellant’s claim was fraudulent; that he did not loan the money to the decedent and that his claim was not entitled to recognition. It is'so well settled that “the finding of an auditor approved by the court will be sustained on appeal, if there is any evidence which warranted it,” that it hardly seems necessary to cite authorities: Fessenden’s Est., 170 Pa. 631. It is manifest that the same rule prevails where the court below hears the testimony and finds the facts and decrees accordingly.

We have carefully examined the evidence, printed and furnished to us by the appellant, and we do not discover any such clear or manifest error in the findings of the auditing judge as to call for a reversal of the decree. In addition it is averred, in the argument of the appellee, that the appellant has not printed all of the testimony. This is not seriously denied, and the testimony does not appear to have been approved and certified by the judge below, and this furnishes a reason why we should be very cautious and hesitate to reverse the findings of fact by the judge below.

It is strongly argued by counsel for the appellant that the bond and mortgage should be upheld because they were delivered to the appellant in trust to provide for the support of the decedent’s father and mother. If the bond and mortgage had been fairly executed and delivered for that purpose, and the appellant had placed himself upon that ground at the audit, his position would have been very strong. Certainly it was within the power of the decedent to have executed and delivered a valid bond and mortgage for such purpose. But the appellant and his counsel did not present their case to the auditing judge upon that theory. They relied on their claim and attempted proof that the appellant loaned the money to the decedent. Having placed their right of recovery on the latter ground it would be manifestly unjust to permit them to shift their ground on this appeal, and then convict the court of error in not deciding a question that was not fairly raised. By attempting to prove a money consideration for the mortgage the appellant, practically, conceded that it was not given to him in trust for the support of the decedent’s parents. Moreover, there is nothing on the face of the bond and mortgage indicating that they were given for that purpose. The manner in which this case was presented in the court below and here indicates that the appellant did not have an abiding faith and belief that he could recover on either theory standing alone. He undertook to prove that he gave full value for the mortgage, but Mr. Pierce, cashier of the First National Bank of Elizabeth, testified pointedly that the appellant told him that the mortgage and judgment were for the benefit of his parents, and that he gave nothing for it.

We cannot agree with the conclusion reached by the auditing judge that the infant child of the decedent can avoid the bond and mortgage on account of the fraud of his father. But we are not convinced that the appellant presented such strong evidence that the learned judge was bound to find that his bond and mortgage were valid. The auditing judge cites Hummel’s Est., 161 Pa. 215, in support of his proposition that “ fraud will render any transaction voidable at the instance of those who have been defrauded as against those who are parties and privies. This is especially true of wife and creditors; and why not of the helpless infant ? ” That case sustains the court as to wife and creditors, but not as to the infant son of the decedent. That'case shows that he stands in a different relation to his father’s estate than the wife and creditors. But we may refuse to reverse the decree because the appellant failed to establish by clear and sufficient evidence that he had a valid and legal claim against the decedent’s estate. Suppose the decedent never in fact executed the mortgage, or, if he executed it, that he never delivered it, or that he executed it for a lawful purpose and delivered it, but that purpose was never carried out by the appellant. In either of those supposed cases the decedent, if alive, could defend against the bond and mortgage. This being so, his son and heir could do the same. What we decide is that we are not convinced of such manifest error on the part of the auditing judge that his decree should be reversed. This is so even if he gave a wrong reason for his conclusion.

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


text:
    Dull v. Slater, Appellant.

      Decedent’s estate — Charge on land — Orphans’ court sale.

    Upon the sale by an administrator under order of court for the payment of the debts of a decedent, the liability of the purchaser for the amount .of his bid is fixed by the return and confirmation, and he cannot set up in an action to enforce it either a failure of title, misrepresentations by the administrator, or other matter attacking the validity of the sale. His day in court to make such objection is at the return of the sale, and if he submits to the decree of the court confirming it, he cannot afterwards be heard against it collaterally.
    A purchaser at an orphans’ court sale, who buys land for a specific price, cannot afterwards be heard to contend that what he bought included and carried back to him any portion of the money be expressly agreed to give.
    Where land is sold at an orphans’ court sale charged with a sum of money, the interest of which was payable to the decedent’s mother during her life, and the principal after her death to the heirs of decedent’s father, who died intestate, and the purchaser agrees that the charge shall rémain as theretofore, the purchaser cannot, after the widow’s death, claim that he is not liable to pay any portion of the fund to the heirs at law of the decedent as whose estate the land was sold.
    Argued April 16, 1906.
    Appeal, No. 38, April T., 1906, by defendants, from order of C. P. Fayette Co., Sept. T., 1904, No. 127, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George Walter Dull et al. v. Joseph D. Slater, with notice to Charles P. Newell, Terretenant.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Assumpsit to enforce a charge on land. Before Umbel, J.
    The facts are stated in the opinion of the Superior Court.

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

      E. C. Higbee, of Sterling, Higbee, Dumbald & Brown, for appellant.
    — It has been uniformly held that where one of several heirs accepts land charged with a sum of money, the interest of which is payable to decedent’s widow during her life, and the principal thereof, on the widow’s death, is payable in equal shares to the decedent’s children, the interest of said acceptant in said principal sum is paid and extinguished by operation of law: Duey v. Clemens, 1 Pa. 118; Updegrove v. Updegrove, 1 Pa. 136 ; Erb v. Huston, 18 Pa. 369 ; Stecker v. Shimer, 5 Wharton, 452; Reigle v. Seiger, 2 Pa. & W. 340; Dech v. Gluck, 47 Pa. 403 ; Steckel v. Koons, 102 Pa. 493; Hollenberger v. Yaukey, 145 Pa. 179.

      F. P. Rush, of Johnson & Rush, for appellees.
    — The charge was specifically continued by order of the orphans’ court, under the authority of which the appellants derived title to said lands, and was a part of the consideration to be paid by Slater for the lands. That in such a case the charge does not merge and pass to the vendee is settled by abundance of authority: Dech v. Gluck, 47 Pa. 403; Kline v. Bowman, 19 Pa. 24; Erb v. Huston, 18 Pa. 369 ; Updegrove v. Updegrove, 1 Pa. 136; Fenton v. Fenton, 208 Pa. 358; Van Ormer’s Estate, 25 Pa. Superior Ct. 234; Carrow v. Headley, 155 Pa. 96; Danhouse’s Estate, 130 Pa. 256.
    That Slater, who purchased at the orphans’ court sale, and Newill, his vendee now holding title to said lands by virtue of that court’s decree, cannot question the validity of said decree or escape payment of the purchase money for said lands as prescribed by it, is too well settled to admit of doubt: Fahrig v. Schimpff, 199 Pa. 423 ; Richter v. Fitzsimmons, 4 Watts, 251; Herr v. Herr, 5 Pa. 428 ; Sackett v. Twining, 18 Pa. 199; King v. Gunnison, 4 Pa. 171; Vandever v. Baker, 13 Pa. 121; Unangst v. Kraemer, 8 W. & S. 391; Pringle v. Rogers, 193 Pa. 94.
    October 5, 1906 :
   Opinion by

Head, J.,

Daniel W. Dull died on May 5, 1891, intestate, leaving him to survive, a widow Rebecca Dull, since deceased, and five children, the plaintiffs in the present action. At the time of his death he was the equitable owner of a tract of land containing some eighty-seven acres. This land had formerly belonged to his father, George Dull, who died seized thereof, intestate, in 1880, leaving him to survive a widow, Margaret B. Dull, and nine children, of whom said Daniel W. was one. Shortly after the death of said George Dull, his widow and eight children, other than Daniel, all being of full age, agreed to sell and convey the said tract of land to Daniel for the sum of $3,000, of which $2,000 were to be paid in cash presently. The balance of $1,000 was to remain in his hands charged on the land, the interest thereof to be paid annually by him to said widow, his mother, during her natural lifetime and at her death the principal thereof to be paid to the legal heirs of said George Dull in like manner as if said real estate had been awarded or decreed to said Daniel by the orphans’ court in proceedings for partition. Daniel took full possession of the land pursuant to said agreement and paid the $2,000 of purchase money which are not in any way in controversy now, but the legal title remained in his mother, brothers and sisters.

Upon the death of Daniel, it is manifest that, all of his title and interest in said land became at once fully vested in his children, the present plaintiffs, without any regard to the fact whether he was in debt or not, whether he was solvent or insolvent. It was, of course, liable to be taken from them, as it could have been taken from him, for the payment of his debts; but until so taken the land belonged to the children and not to his creditors.

In due time the administrator of the estate of Daniel applied to the orphans’ court for an order to sell his real estate for the payment of his debts. The order to sell, after describing the land, contains the following: “ the said tract being subject to a charge of One Thousand Dollars during the lifetime of said Margaret B. Dull, widow, and then payable to the heirs of George Dull deceased, .... on the following terms: 10 percent. of purchase money to be paid on the day of sale, etc.” To this order the administrator made return that after advertisement, etc., he sold the land at public sale at the place and time designated in the order “to Joseph D. Slater for Twenty-four Hundred and Eighty Dollars, .... which sale was made on the terms specified in the within order, to-wit: $1,000 thereof to remain charged on said real estate during the lifetime of Margaret B. Dull, widow of George B. Dull, deceased, the interest thereof to be paid to her annually during her lifetime and at her death the principal thereof to the heirs of George Dull, deceased; $200.00 thereof to be paid to the executors or administrators of said Margaret Dull, ten per cent, of the balance of the purchase money to be paid on the day of sale, etc.” The return further stated that the purchaser was willing to pay the whole of the purchase money remaining over and above the $1,000 and $200 specifically mentioned, viz., $1,280 in cash, and prayed that with the terms of sale thus amended the sale might be confirmed and he be authorized to execute and deliver a deed upon receipt of the $1,280 in cash. This return was absolutely confirmed in due course “ upon terms amended as therein prayed for,” without objection from any source, and no proceeding to modify, correct or set it aside has ever been instituted by. anyone.

Upon the death, in 1900, of Margaret B. Dull, widow of George, the plaintiffs brought this action against the purchaser, to recover two-ninths of the $1,000 of purchase money held up by the purchaser, under the terms of sale, to await that event. One of these ninths was the original share of their falher, Daniel Dull, the other the share of one of his sisters, Lucinda Brooks, which the said Daniel had acquired by purchase in his lifetime. The purchaser filed an affidavit of defense which was deemed inadequate by the court below, and a rule for judgment, for want of a sufficient affidavit, having been made absolute, this appeal was taken.

The appellant contends, in the first place, that the share of Daniel in the $1,000, and as well any share he acquired by purchase, merged in the estate which he took in the land itself; that at the orphans’ court sale there was sold and bought the complete and entire title and interest of Daniel Dull in the land, and that therefore the purchaser, the appellant, not only bought the land, but, with it and bound up in the title he took, the two shares of the $1,000 now sued for. To support his contention the appellant cites and relies upon a line of decisions beginning with Reigle v. Seiger, 2 P. & W. 340, and ending with Hollenberger v. Yaukey, 145 Pa. 179. It may be conceded that a sheriff, for instance, is but an executive officer, and where required, by the mandate of his writ or the law, to levy upon and sell all the interest and estate of a defendant in a tract of land, he can make no terms of sale that would result in the purchaser, at such sale, taking any other estate than what the law would cast on him. But had Daniel Dull, in his lifetime, conveyed his land to a purchaser, who had - expressly agreed that out of the purchase price he would hold up -the sum of $1,000 during the life of Margaret Dull, paying the interest thereon annually to her, and at her death the principal to the heirs at law of George Dull, securing such payments by a mortgage, it must be also conceded that such purchaser could not set up the doctrine of me'rger as a defense to the payment of any part of the mortgage debt. This has been expressly held in Fenton v. Fenton, 208 Pa. 358. In the present case the widow and heirs of George Dull contracted to sell to Daniel all the estate and interest they, or any of them, had in the land for a stipulated sum to be paid in a manner agreed on. They did not execute a deed and take a mortgage to secure the deferred payment, it is true, but held the legal title as the security for it. But in what essential respect' does that fact make the present case differ from Fenton v. Fenton, 208 Pa. 358 ? The legal title was but a security for the payment of the purchase money, and, in effect, a mortgage. Mr. Justice Dean, in the case last cited, after referring to Reigle v. Seiger, Stecker v. Shimer, 5 Whart. 452, and kindred cases, says: “ All these cases, however, rest upon the statutory fact that the widow’s interest under the interstate laws is an estate in the land, which estate she may voluntarily relinquish,.but of which she cannot otherwise be deprived.” After referring to the execution of the deed and the mortgage to a trustee securing the payment to her and the heirs of the interest and principal of one-third of the purchase money, the opinion proceeds : “ Thus this sum was no longer an estate in the land, but a debt secured by a mortgage on the land. It is wholly immaterial that the mortgage was the exact value of the widow’s and children’s interest in the land; it was plainly a substitution of a wholly different form of security for that which proceedings in partition provided.' ... To work a merger by operation of law of John C. Fenton’s share in the mortgage with his estate in the land, in the absence of any express intention that the interests should merge, both must have been estates in the land, which they were not, for the mortgage was only a security for his debt.”

It may, therefore, be seriously doubted, under the reasoning and authority of Fenton v. Fenton, 208 Pa. 358, that the share or shares of Daniel Dull in the portion of the purchase money payable after the widow’s death, and to secure the payment of which alone the legal title was retained by his vendors, could or would, in the absence of any expressed intention to that effect, merge in the estate in the land he acquired by his purchase.

But the proper disposition of the question now before us does not require us to consider or determine to what extent the doctrine of merger contended for would have operated had Daniel Dull, in his lifetime, made a. general conveyance of his land without expressly reserving to himself his shares in the charge of fl,000, running with the land, or had his real estate been levied on and sold by the sheriff to satisfy his creditors. Its true solution is to be found in the application of another and long-established legal principle. The rights and obligations of the appellant Slater had their inception in the contract into which he entered when he became a bidder at the sale. That contract is hot only evidenced by a writing, but by the record of a court whose final decrees cannot be attacked in any collateral proceeding. The amount of money he must pay to complete his contract has been judicially ascertained, and having permitted the absolute confirmation of the sale by the court, upon terms so plain and specific that there is no room for contention as to their meaning, he cannot now be permitted indirectly to nullify or modify that final decree, or defend against-the payment of any portion of the purchase money he then solemnly bound himself to pay. It concerns him not whether Daniel Dull died solvent or insolvent or whether the portion of the purchase money which he has never yet paid reaches the pockets of creditors or heirs. As to all these matters he is a stranger, a volunteer, without standing to be heard. It is sufficient for him that he has the land he bought, that he is called upon to pay only what he agreed to pay, and will not be subjected to any possible danger of paying twice. More than this he cannot ask.

“ Upon the sale by an administrator under order of court for the payment of the debts of a decedent, the liability of the purchaser for the amount of his bid is fixed by the return and confirmation, and he cannot set up in an action to enforce it either a failure of title, misrepresentations by the administrator, or other matter attacking the validity of the sale. His day in court to make such objection is at the return of the sale, and if he submit to the decree of the court confirming it, he cannot afterwards be heal’d against it collaterally: ” Fahrig, Administratrix, v. Schimpff, 199 Pa. 423.

In Dech v. Gluck, 47 Pa. 403, the distinction between a sale by an orphans’ court and by a sheriff, in respect to the doctrine of merger, is clearly drawn and well sustained in a careful review of the authorities. The court there holds that a purchaser at an orphans’ court sale, who buys land for a specific fixed price, cannot afterwards be heard to contend that what he bought included and carried back to him any portion of the money he expressly agreed to give. See also Erb v. Huston, 18 Pa. 369. These cases we regard as decisive of the main question now in controversy.

If the defendant Slater is liable to pay it needs no citation of authority to prove that the present plaintiffs, the children of Daniel Dull and grandchildren of George Dull, are the proper parties to maintain the action.

Nor can they be affected or estopped by anything put into his deed by the administrator, which sought to change in any way the decree of confirmation. They were not parties to it. Their rights as well as the liability of the purchaser are conclusively fixed by the said decree.

That an action of assumpsit can be maintained to recover a sum of monéy charged on land is held in De Haven v. Bartholomew, 57 Pa. 126, and in many cases there cited. If Newill, the other defendant, is a terre-tenant by virtue of an unrecorded deed or was even in possession of the land, the act of assembly, now regulating the service of process in actions like the present one, requires that he be brought into court and made a party to the record. The judgment entered by the court below being general as to Slater, the purchaser, and de terris as to Newill, the terre-tenant, properly fixes the liability and protects the rights and equities of each of them. Upon a careful review of the whole case we are all of opinion that judgment was rightly entered for the plaintiffs.

Judgment affirmed.


author: Porter, J.,

text:
    Livengood, Appellant, v. Stauffer.

      Estoppel — Silence—Adverse title — Mines and mining — Drainage.
    One who knowingly suffers another to purchase land, under an erroneous opinion of title, without making known his adverse claim, and accepts for himself a part of the purchase money, shall not afterwards be permitted to assert his right against such purchaser. Silence will postpone a title when one knowing his own right should speak out, and one led by such silence ignorantly and innocently to rest on his title, and invest money on the faith of it, without timely warning, will be protected by estoppel.
    Where a member of a limited partnership association is active in installing a system of drainage for its coal mines through neighboring coal which it does not own, and subsequently upon the sale of the coal mine participates in the proceeds of the sale, and it appears that he had shortly before this purchased the surface over the coal under which the drain was constructed, he will be estopped from denying to the company who purchased the'coal mine the right to drain under the surface to which he had acquired title.

      Argued April 16, 1906.
    Appeal, No. 131, April T., 1906, by plaintiff, from decree of C. P. Fayette Co., No. 400, in equity, dismissing bill in equity in case of A. S. Livengood v. Joseph R. Stauffer, James W. Wiley, Stauffer & Wiley, H. C. Frick Coke Co., American Sheet Steel Co.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Reppert, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree dismissing the bill.

      F. P. Rush, with him W. J. Johnson, for appellant.
    — Mr. Livengood, the plaintiff, having acquired the rights of Sherricks, is only bound by the same estoppels they were bound by. During their ownership, nothing Livengood would do or say could 'affect the title he obtained from the Sherricks, Now the matters alleged by defendants as estopping Livengood, were things he did before he acquired title. Even if Livengood were a joint trespasser with defendants, in turning the additional water upon his land, it could not estop him asserting all his legal rights of ownership after he acquired the title, for a trespass establishes no rights in a trespasser: County of Susquehanna v. Dean et al., 33 Pa. 131.
    As Stauffer & Wiley have known all the time that they ’were trespassing, we cannot see how knowledge on part of plaintiff, even if it existed, would be material. But if it is material, then the defendants, on whom the burden lies to prove the facts necessary to create an estoppel, have failed in their proof: Hill v. Epley, 31 Pa. 331; Com. v. Moltz, 10 Pa. 527; Richards v. Buffalo, etc., Railroad Co., 137 Pa. 524; Woods v. Wilson, 37 Pa. 379 ; Garvey v. Refractories Co., 213 Pa. 177 ; Bushnell v. Scott, 21 Wisconsin, 451; Woodward v. Webb, 65 Pa. 254.

      Nathaniel Ewing, with him George E. Nowell, for appellees.—
    An owner cannot invoke protection against an infirmity in his title which he has aided to create : Lewis v. Carstairs, 6 Wharton, 193; Pettebone v. Beardslee, 3 Kulp, 406; Oil Well Packer Co. v. Jarecki Mfg. Co., 157 Pa. 342.

      October 5, 1906:
   Opinion by

Porter, J.,

The plaintiff is the owner of ninety-two acres of land in Fayette county, which is subject to the mining rights of the defendants Stauffer & Wiley, who own the coal and other minerals underlying thirty-three acres of said tract and have for many years operated a mine in said coal, known as the Home Works, in connection with a coke plant. The coal and land were both formerly owned by Jacob Sherrick, who in 1878 opened the mine and built the coke works and continued to operate them for some time. Sherrick adopted as the plan for freeing the mine from water a drain some 300 or 400 feet long extending out, under and through his land to a run on the surface of the Frick Coke Company’s land. This drain was covered except some thirty or forty feet at the lower end. The coke and coal works, “together with the right to mine, extract, remove and take away the entire amount and body of said coal and other minerals without being bound or required to leave any part thereof for the support of any part of said lands or the surface thereof in any manner whatsoever, and without being in any way liable for any damage or injury which may be done to said lands or to any water or water courses therein or thereon, or to anything growing on said lands or to any buildings erected or which may hereaftér be erected thereon,' by the mining or extracting or removal of the whole of said coal and other minerals as aforesaid, together with the right to make all such openings as may be desirable for the ventilation and drainage of the mines or pits used in the mining of said coal or other minerals, and to drain said mines or pits on or through any lands of the said grantor without being in any way liable for any damage or injury which may be done to said lands or to any water or water courses therein or thereon,” were granted and conveyed by Sherrick to Joseph R. Stauffer in 1881, and in the same year Stauffer conveyed an undivided interest therein to James W. Wiley, and since then and until the present time the firm of Stauffer & Wiley have continued to operate the mine and the Home Coke Works. In 1895 or 1896, the wooden box drain originally constructed by Sherrick was taken up and • a twelve-inch tile drain laid upon the same line by Stauffer & Wiley. In the fall of 1901 Stauffer & Wiley took up the twelve-inch tile drain and deepened the ditch upon the same line, it being their intention to replace the tile drain taken up with a twenty-four-inch tile drain. When the teamsters began hauling the twenty-four-inch tile for the drain, the plaintiff refused to permit them to cross his land, and the construction was somewhat delayed. The twenty-four-inch tiles were finally placed in the ditch on the line of the original Sherrick drain, and the ditch was filled and the tile covered the entire distance through plaintiff’s land to a depth sufficient to permit of farming operations, in November, 1902, about the time this bill was filed.

The bill conceded the right of Stauffer & Wiley to drain the Home Works mine through the lands of the plaintiff, but 'averred that the waters from coal mines of the American Sheet Steel Company and the H. C. Frick Coke Company were also being conducted through the Home mine and discharged by the drain in question through plaintiff’s land, and prayed that a permanent injunction be granted to restrain the defendants from continuing and maintaining said trespass. The defendants filed an answer to which the plaintiff filed a replication, and evidence was heard by the court below upon the issue thus raised. The court below found that the water from the mine now owned by the American Sheet Steel Company had been discharged through this drain since 1890 and that the water from part of the mine of the H. C. Frick Coke Company had been discharged in the same way since 1898, but that under the facts as found by the court the plaintiff was estopped to question the right to so discharge said waters.

The court found as a fact that the natural drainage of the mine of the American Sheet Steel Company and that part of the Frick Coke Company mine which passed through the drain in question was through the Home mine and out'by way of this drain. The court further found that the Scottdale Iron & Steel Company, Limited, a limited partnership association, was organized about 1887; that plaintiff was a member of said company and was duly elected one of its board of managers at the annual meeting of July 15, 1889, and was re-elected a manager of said company annually thereafter, and served and qualified in that capacity until the sale of the company’s property to its present owners in 1900 ; that the Scottdale Iron & Steel Company, Limited, in 1887 purchased a tract of land containing 125 acres adjoining and immediately north of the Home Works and Jacob Sherrick’s surface land, and in 1888 conveyed said tract to A. S. Livengood, the plaintiff, reserving, however, all the stone, coal and other minerals under the part thereof adjoining Jacob Sherrick’s land containing 107 acres, together with the right to mine and remove the entire amount and body of said coal, together with the right to make such openings as may be desirable for the ventilation and drainage of the mines, either on or beneath the surface of said lauds without being in any way -liable for any damage or injury which might be done to said lands. There was in the 107 acres of coal thus reserved by the Scott-dale Iron & Steel Company, Limited, a mine which had been opened and operated by a former owner. The water in this mine had then been disposed of by pumping it to the surface, whence it flowed over the 125-acre tract, to which the plaintiff acquired title in 1888, and the ninety-two-acre tract of Jacob Sherrick into the run where the drain in dispute also discharges. The mines were not again operated until 1890, at which time preparations to resume work were begun and a contract was entered into by the Iron and Steel Company, Limited, with the plaintiff, Livengood, to mine and supply them with the coal required for their use; and all subsequent operations in this mine, until the sale to the American Sheet Steel Company, were conducted by Livengood, the plaintiff. At a meeting of the board of managers of the Iron and Steel Company, held October 17, 1890, the following motion was adopted: “ That the officers of this company be empowered to negotiate and enter into an agreement with the Home Works for the best terms obtainable for the drainage of the water of the company’s mines into the Home Works; ” the plaintiff was present at this meeting and as a manager acquiesced in the action of the board. The mine at that time was flooded with water. Pursuant to this resolution an agreement was made with Stauffer & Wiley, the owners of the Home mine, and bore holes were driven at various places in the coal between the Scottdale Iron and Steel Company’s mine and the Home mines, through which the water in the former passed into the latter where it was cared for by Stauffer & Wiley and conducted by ditches into and discharged through the drain in dispute. By this arrangement, which he as one of the board of managers of the Scottdale Iron & Steel Company had authorized, Livengood was enabled to begin mining operations under Ms contract with the company, he and the company were relieved of the burden of pumping the mines, and his surface lands were protected from any injury that might have resulted from the discharge thereon of the water pumped from the mines. This method of draining the Scottdale Iron & Steel Company’s mines continued until 1895, in which year Livengood under a contract with the Scottdale Iron & 'Steel Company constructed a system of ditches in the company’s mines whereby the water was collected at one point, from which an entry or cut-through was driven in the coal between the workings of the two mines, through which entry the water from the mines of the Scottdale Iron & Steel Company was conducted into those of Stauffer & Wiley and discharged by a single course into the drain. The water from the Scottdale Iron & Steel Company’s mine has since been discharged through this entry into the Home mines of Stauffer & Wiley. The plaintiff received from the Iron and Steel Company as his compensation for the construction of this entry and system of ditches the sum of 11,318.35. The Scott-dale Iron & Steel Company, of which the plaintiff was a manager, entered into an arrangement with the H. C. Frick Coke Company, in 1898, in pursuance of which an entry was driven through the coal between the two mines, through which the water passed from a part of the Frick Coke Company’s mine into the Scottdale Iron & Steel Company’s mine, and was conducted in ditches through said mine, to the Home Works mine of Stauffer & Wiley. The Scottdale Iron & Steel Company received from the Frick Coke Company a monthly compensation for this privilege. The plaintiff was a manager of the Scottdale Iron & Steel Company during the entire period covered by these various arrangements, had charge of its mining operations and knew exactly what had been done in the mines.

Jacob Sherrick died in 1895, and his daughter,, Flora Stauffer, wife of Ely M. Stauffer, having purchased the interest of the other heirs, conveyed the ninety-two-acre tract above referred to, subject to the mining rights of Stauffer & Wiley, to A. S. Livengood, the plaintiff, by deed dated March 8, 1900.

The plaintiff had accurate knowledge as to what had been done with the drainage system of the three mines for almost ten years; he knew that the Frick Coke Company had been granted a license to discharge part of the water of that mine into the mine of the Scottdale Iron & Steel Company, casting upon that mine the additional burden of taking care of such water; he knew that for over nine years the water of the mine of the Scottdale Iron & Steel Company had been discharged into the Home mine and on out through the drain in question; and he knew that an entry had been opened between the Iron and Steel Company’s mine and the Home mine and that through that entry the waters of both the Frick mine and the Iron & Steel Company’s mine had been discharged for about two years, passing into the Home mine and on out through the drain in question. Having this knowledge, he, on March 8, 1900, acquired title to the lands formerly of Jacob Sherrick, through which the drain ran, and his own chain of title gave him express notice of the character and extent of the rights, so far as shown by the records, of the various mine owners to pass water through this drain. This was the state of affairs when in April, 1900, Livengood, the plaintiff, as a manager of the Scottdale Iron & Steel Company, Limited, joined with his associates in the sale of the mine of that limited partnership to the American Sheet Steel Company, one of the defendants.

The mine which the plaintiff and his associates thus sold to the American Sheet Steel Company was subject to the burden of taking care of a.part of the water from the Frick Coke Company’s mine, which together with the water from the mine purchased was discharged, and apparently rightfully so, through an entry which opened into the mine of Stauffer & Wiley. The agreement under which the water from the Frick Coke Company’s mine had been drained into the mine which was the subject of the sale was, so far as the evidence shows, in parol; the enjoyment of the license necessarily involved an expenditure of money by the Frick Coke Company, the licensee, and as the money had been expended and the agreement carried into execution, the license had become irrevocable: McKellip v. McIlhenny, 4 Watts, 317; Huff v. McCauley, 53 Pa. 206; Thompson v. McElarney, 82 Pa. 174; Harris v. Brown, 202 Pa. 16. This was a permanent burden upon the property which the plaintiff and his associates were selling, but the burden was apparently minimized and the value of the property greatly increased by the right which appeared to be appurtenant to the mine to discharge the water which came from the Frick Coke Company’s works, as well as that which originated in the mine which was the subject of the sale, through the entry leading into the Home Works mine, as had for years been done and was then being done by the plaintiff and his associates. If it be conceded that the plaintiff, as successor to the title of Jacob Sherrick, had a right to object to the drainage of the mine as it was then conducted and that he would have been entitled to have the discharge of the water in that manner restrained if he had complained at the proper time, then, under the evidence in this case, he was the only person who would have had any standing to object to the draining of the mine which was the subject of the sale, in the manner in which it was then done. This condition of affairs imposed upon A. S. Livengood the duty to speak at that time and make known to the intending purchasers, the American Sheet Steel Company, his right, as the successor to the Sherrick title, to object to the continued drainage of the mine in the manner in which it was then conducted. The plaintiff elected to keep silent, and as one of the managers of the Scottdale Iron & Steel Company, Limited, he acquiesced in the sale, permitted the American Sheet Steel Company to buy the property in ignorance of his private right, and accepted his share of the purchase money. One who knowingly suffers another to purchase land, under an erroneous opinion of title, without making known his adverse claim, and accepts for himself a part of the purchase money, shall not afterwards be permitted to assert his right against such purchaser. ' Silence will postpone a title when one knowing his own right should speak out; and one led by such silence ignorantly and innocently to rest on his title, and invest money on the faith of it, without timely warning, will be protected by estoppel: Carr v. Wallace, 7 Watts, 394; LeFevre v. LeFevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267; Lewis v. Carstairs, 6 Wharton, 193 ; Swartz v. Swartz, 4 Pa. 353; Hill v. Epley, 31 Pa. 361; Woods v. Wilson, 37 Pa. 379; Arnold v. Cornman, 50 Pa. 361; Chapman v. Chapman, 59 Pa. 214; Logan v. Gardner, 136 Pa. 588. The plaintiff is estopped to question the right of the American Sheet Steel Company to pass through the drain under his land the water which originates in its mine and that which flows in from the Frick Coke Company’s mine, in the same manner in which it was done at the time the American Sheet Steel Company purchased the mine from the plaintiff and his associates in the Scottdale Iron & Steel Company, Limited. An incident of the right acquired by the American Sheet Steel Company is that the drain may be kept in repair and enlarged, from time to time, if necessary to accommodate the flow of water resulting from the operation of the mine which they purchased and that part of the Frick Company’s mine which had acquired the right to drain through their property.

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


text:
    Italo-French Produce Company, Appellant, v. Thomas.

      Married women — Liability on note — Suretyship.
    Where two partners having an outstanding firm note, dissolve partnership, and one of the partners, becoming sole owner of the business, gives a note signed by himself and wife, to the payee of the outstanding note, and this note is accepted by the payee in lieu of the first note, and the avowed purpose of the wife in signing the note is to secure to herself a joint interest in the business with her husband, the payee of the note is under no obligation to see that the avowed purpose for which the wife gave the note is in fact carried out.
    Argued April 18, 1906.
    Appeal, No. 107, April T., 1906, by plaintiff, from judgment of C. P. Washington Co., Nov. T., 1905, No. 100, on verdict for defendant in case of Italo-French Produce Co. v. Katie Thomas.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Reversed.
    Issue to determine the validity of a judgment. Before Taylor, J.
    The facts are stated in the opinion of. the Superior Court.
    Verdict and judgment for plaintiff. Plaintiff appealed.

      Error assigned was answer to defendant’s point, quoted in the opinion of the Superior Court.

      James I. Brownson, with him John W. Bonnan, Alvan Bonnan and John II. Bonnan, for appellant.
    — A contract whereby as principal a married woman joins in purchasing an interest in a store is within the scope of the powers explicitly conferred upon her, and by so purchasing she could legally assume liabilities to the same extent as an unmarried person becoming a partner in the store: Loeb v. Mellinger, 12 Pa. Superior Ct. 592; Hotchkiss v. Lanphier, 9 Pa. Dist. Rep. 23 ; Spotts’s Est., 156 Pa. 281; Steffen v. Smith, 159 Pa. 207; Stephan v. Hudock, 4 Pa. Superior Ct. 474.

      R. W. Irwin, of Irwin & Morgan, for appellee.
    October 5, 1906 :
   Opinion by

Head, J.,

J. W. Thomas, the' husband of the appellee, and one Spassino were partners in the mercantile business, and as such indebted to the appellant in the sum of $1,200, evidenced by a note. As a result of some arrangement, the exact character of which is a disputed question in the case, Spassino transferred his interest in the business to Thomas, who thus became sole owner. The firm note was taken up by the payment of $200 in cash and the giving to the appellant of a new note for $1,000, signed by J. W. Thomas and Katie Thomas, the appellee. The judgment confessed on this note was afterwards opened. The trial resulted in a verdict for the defendant, and judgment having been 'entered on the verdict, this appeal was taken.

On the part of the appellee it was contended that she never had, and never intended to have, any interest in the store; that she had no dealings whatever with the plaintiff; received no part of the consideration of the note she signed, and expected to receive none, but signed solely and simply as surety for her husband. If the facts were as thus contended for by her, it is agreed that payment of the note could not be enforced against her, the ability to make such a contract being expressly denied to her.

The plaintiff just as stoutly maintained, and offered evidence to prove, that Mr. and Mrs. Thomas jointly undertook to buy out Spassino, so that the store would be owned by them as partners; that to accomplish this object they had-to lift and cancel the note of the old firm held by the plaintiff, and that they join tty offered to pay $200 in cash and give their obligation for $1,000 in exchange for the note held by the plaintiff, which they could then use as so much cash in their proposed transaction with Spassino.

The learned counsel for the defendant asked for special instructions upon the law that would arise if this state of facts were to be found by the jury. The point and answer of the court, which constitute the second assignment of error, are as follows : “ 3d. Even if the jury should find from the evidence that Katie Thomas and her husband represented to the ItaloFrench Produce Company that they were about to buy the former partner of J. W. Thomas out, and that they would then own the store jointly, and on the strength of that representation they secured an arrangement with the plaintiff by which their joint note was to be taken in lieu of the note against Thomas and his former partner, still the defendant would not be liable, for the reason that the note in suit was given in place or in payment of an antecedent debt of J. W. Thomas and his former partner, to which debt Katie Thomas was no party. Answer: A wife cannot be made liable for the antecedent debt of her husband or another by signing a note as surety for her husband, or her husband’s partner in this case, upon a joint debt; but if the jury find from the evidence that the note in suit was signed by Katie Thomas under an agreement in which she purchased a part interest in the old partnership of her husband and Spassino from the retired partner, and it represents the consideration she gave for the said interest, then she would be liable on said note; and with this explanation the point is affirmed.”

Since the passage of the act of 1893, which itself was the last of a series of acts of the legislature tending to emancipate married women so as to enable them to fairly meet the conditions of modern business life, it cannot be doubted that Mrs. Thomas had the full right, if she chose, to become the partner of her husband in the mercantile business. Such a partnership and each member of it would have the same rights and be exposed to the same liabilities as would any other partnership or the members composing it. She could, therefore, lawfully contract,.along with her husband, directly with the owner of the other interest for the purchase of it, and any obligation she would give to secure the payment of what she contracted to pay could admittedly be enforced against her as if she were a feme sole. It is equally clear that if the payment of cash were necessary to enable her to carry out her proposed purchase she could, with or without her husband, borrow from a bank or other lender the money required, and the obligation she would give to secure the repayment of such money, saving only, of course, a mortgage upon her real estate in which her husband did not join, would be equally incontestable. It might also happen that as part of the purchase money of property, real or personal, which she undertook to buy, she would be required to assume the payment of some outstanding obligation given by the former owner; and if she undertook to do this, such undertaking would constitute her a primary debtor, and in no sense a surety as to that debt. These principles, which we shall see have been announced by our courts of last resort, would necessarily lead to the conclusion that if Thomas and his wife had gone to the plaintiff and borrowed directly $ 1,000 in cash and used that to purchase the interest of Spassino, who had then, along with Thomas, taken the same money and lifted the outstanding firm note, the transaction could in nowise be questioned by Mrs. Thomas, and the note thus given by her would be enforced against her in any court. But one other question could arise, the answer to which, with what we have already stated, would enable us to reach a proper conclusion upon the question raised by the assignment of error. If a married woman, for a purpose about which she is authorized by the law to contract, borrows a sum of money, does the law cast upon the lender the necessity of seeing that the money so loaned is actually applied to the purpose for which it is ostensibly borrowed ? If this were so, it can be seen at a glance that a married woman would be wholly unable to borrow money for any such purpose. Lenders would naturally decline to assume the responsibility of seeing what use was made of the moneyand proving it in court afterwards, under the penalty of being unable to collect their debt, and thus a married woman would be deprived of the benefits intended to be conferred upon her by the legislature.

In Hazleton National Bank v. Kintz, 24 Pa. Superior Ct. 456, Kintz conveyed to his mother, whose husband was living, certain lots of ground which were then bound by the lien of a judgment entered by the First National Bank of Hazleton against Kintz, the grantor. After the conveyance Mrs. Kintz, the mother, and her husband executed and delivered to the bank a new note upon which judgment was entered, and the lien of the former one against the son was allowed to expire. An application was afterwards made by Mrs. Kintz to have the said judgment opened, so that she might be permitted to defend on the ground that she was a married woman, and that in signing the note she but became a surety for her son upon an antecedent debt of his own. The court below discharged the rule, and upon appeal to this court the judgment was affirmed. Smith, J., speaking for the court, said : “ The general rule is that one purchasing under and subject to the lien of a mortgage given by his vendor is a purchaser, as between himself and his vendor, of the entire estate, and is liable to pay the mortgage as part of the purchase money due from him. Thereafter, the relation of the vendor to the mortgagee is not that of primary debtor, but of a surety, the vendee becoming primarily liable therefor. The same rule applies to a judgment or other incumbrance. . . . Here the grantee had full contractual capacity in this respect. She chose to recognize the obligation incurred under the conveyance and to provide for it by an obligation under seal, voluntarily executed. That her son still remains liable on the judgment does not affect the liability which she thus assumed.”

From this it would seem to follow that if Mrs. Thomas had assumed in writing the payment of the outstanding debt of the firm, an interest in which she purchased, even if the old obligation were still held by the creditor, her assumption would •constitute her, as between herself and her vendor, the primary debtor, while her vendor would become, in reality, but a surety for her.

In Spotts’s Estate, 156 Pa. 281, Mr. Justice Mitchell, speaking for the Supreme Court, says : “ To hold, as is claimed, that one who lends a married woman money by discounting her note, or otherwise, must see that she actually applies it to use in her business, would be going back to that state of limited rights of property and contract which it was the object of the married persons property act of 1887 to put an end to. The auditor reports that her notes were discounted by the bank and she received the money, but that ‘ there is no evidence which proves directly what she did with the proceeds.’ • It is not necessary that there should be. One who presents a money obligation of a married woman, since the act of 1887, has made out a prima facie case, which can only be defeated by showing that the contract is one of the kinds prohibited by that act. The presumption, even in case of a judgment, is that it is regular and valid.” See also Steffen v. Smith, 159 Pa. 207.

If, therefore, as we must conclude from these cases, Mrs. Thomas and her husband had gone to the plaintiff and borrowed $1,000 for the avowed purpose of using it in the purchase of a business to be jointly owned by both, and had secured the same by a joint obligation like the one now in controversy, there would have been no burden on the plaintiff to see that the money was actually invested in the purchase of such a business. If Mrs. Thomas, after procuring the money, either allowed or permitted her husband to úse it in the purchase of a business for himself, she would not on this account be able to defend against the payment of the note. That in the present case what was actually secured from the plaintiff was not money, but was the equivalent of money, something that could be used as money in the proposed transaction, is of no consequence. The answer of the learned court, however, to the point quoted, made her liability depend, not on the purpose she avowed in procuring the loan, not on the representation by which the plaintiff was induced to give up his property, but upon the actual fact whether or not this money was subsequently applied to the actual purchase of property for her. In other words, this answer puts upon the lender the exact responsibility which the Supreme Court, in the case last quoted, has stated does not exist. The point as presented was clearly an erroneous statement of the legal proposition involved, and could have no other proper answer except a refusal.

The second point presented, which with the answer thereto constitutes the first assignment, does not with clearness set forth the facts which make the plaintiff’s contention in the present case, as the other point does. The answer of the court to it we think would be fairly amenable to the criticism that, considered by itself, it would have a tendency to mislead the jury. Taken, however, in connection with the general charge, it is probable that the judgment would not be reversed by reason of that answer alone, confusing and obscure as it seems to us. The second assignment of error, however, for the reasons above given, we feel obliged to sustain.

Judgment reversed and a venire facias de novo awarded.


author: Henderson, J.,

text:
    Richards, Appellant, v. Richards.

      Tenants in common — Relations with each other — Adverse title.

    The rule is firmly established that where one has a joint interest in an estate with another an obligation arises to uphold the joint interest. The law does not permit one to acquire an adverse title and set it up against his cotenant. The presumption is that each joint owner acts for all where a common interest is involved. The relationship of the parties forbids that one act in antagonism to another with reference to such interest.
    A tenant in common cannot acquire through a sheriff’s sale for taxes or a municipal lien, a title adverse to his eotenants. If title is acquired by a cotenant at such a sale, the amount which he has advanced for the preservation of the property is chargeable against it, and such charge may be enforced in an equitable proceeding.
    Where one of several tenants in common purchases the property at a tax sale, the interest of another tenant in common in the property cannot be defeated by the mere fact that he acquiesced in a plan by which his own children through another person were to purchase the property, which plan was in fact never carried out.
    Argued April 24, 1906.
    Appeal, No. 148, April T., 1906, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 63, on verdict for defendant in case of William J. Richards v. Charles M. Richards, Ada E. Wills and the Pennsylvania Title & Trust Company, Trustee.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Reversed.
    Ejectment for an undivided one-seventh interest in real estate in the sixth ward of the city of Allegheny. Before Brown, J.

      At the trial it appeared that Martin Richards died in 1892, leaving a will wherein he devised all of his property to his wife for life. He then provided as follows:
    “I give and bequeath to Ada E. Wills, William J. Richards, Charles M. Richards, Jane Harter, Mary W. Wright, Theodore A. Armstrong and Charles M. Wagner, each share and share alike, at the time of sale or division of my effects, real or personal.”
    The widow neglected to pay the taxes, and tax liens were entered against the property. At a tax sale the property was knocked down to Ada E. Wills. She, however, failed to pay the purchase money, and the property was again sold on an alias levari facias to Charles M. Richards and Ada E. Wills. The purchase price was $1,320. Fifteen hundred dollars was borrowed upon the property, and the purchase money was paid out of the proceeds. It appeared that P. T. Trimble, Esq., a member of the bar, attempted to make some arrangement to purchase the property on behalf of the daughters of William J. Richards, the plaintiff. This plan was acquiesced in by the plaintiff, but the plan was not carried out. Neither Mr. Trimble nor the plaintiff interfered in any way at the second sale.
    The court charged in part as follows :
    [You have, then, not only the fact, if you so find, that he refused to join in the sale, but if you find from the clear force of the testimony — that is, by testimony clear, precise and indubitable — that he not only refused to join in this joint effort to save the property, but did something more than that— attempted adversely to get the property in the name of the children, which would have'taken the property entirely from the other parties — if that were his sole effort in refusing to join the other people to save it, and his effort was to divert it into the possession of his children, so that they would get the full, round benefit of the whole property, and thereby, as a matter of law, depriving the other people of any possible interest, or any chance of getting any interest in the property; if you find that was his purpose and effort, if the testimony satisfies you it was that, then there ought to be a verdict for the defendant.
    If the plaintiff, by a line of conduct which did not bear the impress of good faith, but showed a disposition upon his part not to act in good faith, for the common benefit or joint benefit of the other heirs, who were jointly interested, but adverse to them attempted to wreck that situation, to strike it down, to carry the property away and put it in his children, by conduct of that sort, he is estopped from coming in at this point and attempting to get from the other people what they had a right to get under the circumstances, because they had the right to save it. If he had agreed to join them in buying that, and helping them, clearly, then, he would be entitled to a verdict; but if his conduct was just the reverse of that, not attempting to save it for the joint benefit, but attempting to wreck it and take it away from that joint interest, and pass it down to his children, so that they would have it, and all the other interests would be stricken down, then it was a line of conduct that is not considered fair and right in law, and would bar him from a recovery in this case.] [8]
    [As we have said to you, if his line of conduct does not bear the impress of good faith, fairness to his cotenants; if his whole effort was not in that common direction, to help the joint purpose'of the cotenants, but to strike down that interest, to carry the property away and put it in his children, and get it out of the way in that sense, then there ought to be a straight verdict for the defendant.] [9]
    Mr. Wright: You have stated Mr. Trimble said he was representing the plaintiff. He stated that he represented the children.
    The Court: In connection with Mr. Trimble’s testimonj’- as to whether he was representing solely the children, or representing the children and the plaintiff here, in an effort to put the property in the children’s name, Mr. Trimble says, I believe— but it is for you to recollect just what the testimony was, and not take it from the court. It is for you to take what you remember the testimony to be. I think his testimony was — but you will correct it if we are mistaken — that he was consulted in a joint way, not merely by the children. Of course he met one child and then another, but he was consulted by the children, and by the father, the plaintiff in this case. So that, if the common purpose was well known, to direct this property from the line of the joint saving for all, to his own personal interest in the children, then there ought to be a straight verdict for the defendant.] [10]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (8, 9, 10) above instructions, quoting them.

      G. K. Wright, for appellant.
    — One cotenant cannot purchase an outstanding title or an encumbrance affecting the common estate for his own exclusive benefit, and assert such right against the other cotenants : Tanney v. Tanney, 159 Pa. 277; Chorpenning’s App., 32 Pa. 315; Weaver v. Wible, 25 Pa. 270; McGranighan v. McGranighan, 185 Pa. 340; Gibson v. Winslow, 46 Pa. 380 ; Lloyd v. Lynch, 28 Pa. 419 ; Edmunds’s App., 68 Pa. 24; Clark v. Lindsey, 9 L. R. A. 740.

      Charles M. Thorp, with him A. II. Mercer and Leo Weil, for appellees.
    — It appearing that the appellant had notice of the sheriff’s sale and was requested by appellees to join them in buying the property, and failed and refused to do so, he cannot afterwards set up any title to the common property.
    It also appearing that the appellant not only refused to join the appellees in an endeavor to preserve the common property, but that he sought to buy it for himself and in his own interest, by so much the more is he precluded from asserting any title after the sale.
    Even if the appellant might have asserted title after the sale, it was for him to elect whether he would do so and bear his share of the burden, or refuse to do so and thereby abandon such interest; and failing to do or say anything for two years after the sale, while the property was being improved and the situation was changing (the life tenant in the meantime having died), it must be presumed that he had abandoned any interest he might have asserted: Edmunds’s App., 68 Pa. 24; Chorpenning’s App., 32 Pa. 315; Watson v. Watson, 198 Pa. 234; Potter v. Herring, 57 Mo. 184; Mandeville v. Solomon, 39 Cal. 125; Wright v. Sperry, 21 Wis. 336.
    October 5, 1906:
   Opinion by

Henderson, J.,

The rule is firmly established that where one has a joint interest in an estate with another an obligation arises to uphold the joint interest. The law does not permit one to acquire an adverse title and set it up against his cotenant. The presumption is that each joint owner acts for all where a common interest is involved. The relationship of the parties forbids that one act in antagonism to another with reference to such interest. This rule was said, in Chorpenning’s Appeal, 32 Pa. 315, to be “ inflexible, without regard to the consideration paid or the honesty of the intent.” Nor is the situation different if the adverse title be acquired through a sheriff’s sale for taxes or a municipal lien. In such a case default is made by all of the owners, and the obligation rests upon all of them to relieve the property. Under such circumstances the interests remain and the possession is constructively in all as tenants in common, notwithstanding the legal title in the purchaser. A joint tenant upon whom is cast the burden of protecting the common property because of the unwillingness or inability of his co-tenants to contribute is not without means of reimbursement for the outlay incurred. The amount necessary for the preservation of the property is chargeable against it and such charge may be enforced in an equitable proceeding. Weaver v. Wible, 25 Pa. 270; Chorpenning’s Appeal, 32 Pa. 315; Gibson v. Winslow, 46 Pa. 380; Dickey’s Appeal, 73 Pa. 218; Tanney et al. v. Tanney, 159 Pa. 277, and Enyard v. Enyard, 190 Pa. 114, are some of the cases in which the rule above stated is discussed and illustrated. The appellees contend that their case is not under the operation of this rule because the plaintiff, when called upon to contribute to the discharge of the municipal claim, refused or neglected so to do; and not only that, but was a party to an attempt of his daughters to acquire the title at sheriff’s sale adversely to all of the owners. It does not appear from the evidence that the plaintiff was consulted by either of the defendants before the sale. The evidence shows that Mr. Trimble, a member of the bar,'at the solicitation of his mother tendered his neighborly good offices to the plaintiff’s daughters when the property was about to be sold by the sheriff, with a view of securing it for them. The plan seems to have been in a general way that Mr. Trimble would bid iii the property for the plaintiff’s daughters and that they would earn money with which to discharge the obligation so .incurred. The plaintiff consented to this arrangement. Nothing came of it, however, and the property was bid off by Mrs. Wills, one of the defendants. Because she failed to pay her bid that sale was set aside and a new writ issued upon which the property was finally sold. It may well be doubted whether Mr. Trimble was in any sense the attorney of the plaintiff. He does not state that the plaintiff employed him. It appears from his testimony that the parties could not raise the money to pay the claim and that he thereupon declined to have anything more to do with the matter. Mrs. Wills’ conversations were with Mr. Trimble and not with the plaintiff. It does not appear that Mr. Trimble reported to the plaintiff what took place between him and Mrs. Wills. The interviews between Mrs. Wills and Mr. Trimble occurred before the second sheriff’s sale. Mrs. Wills then understood that Mr. Trimble was acting for the plaintiff and his mother. No plan was proposed to the plaintiff by the defendants by which the property might be purchased by means of a loan to be placed upon it; nor was the plaintiff personally requested to unite with the defendants in an effort to avoid a sheriff’s sale. No attempt was made at the second sale to secure the property for the plaintiff’s daughters. The court submitted to the jury the question whether the plaintiff acted in bad faith towards his cotenants and whether he attempted to take the property away from the joint owners and pass- it over to his children, and the jury was instructed that if he so acted such conduct was not fair and right in law and would estop the plaintiff from asserting a title afterwards. This instruction is made the subject of the 8th, 9th and 10th assignments of error. The title acquired by a joint owner adversely to his cotenants is not absolutely void. It may be ratified by those whose interests are affected and thereby become a Valid title. Under some circumstances the conduct of a joint owner before a sheriff’s sale might be evidence of a waiver -of his right, but clear and satisfactory evidence should be required of such waiver. We do not find evidence from which an estoppel could be sustained against the plaintiff.' If he had been able to provide funds and secure a title to his daughters through a sheriff’s sale the property would thereby have been relieved in the interest of all of the owners, but the plaintiff would have been entitled to reimbursement from his cotenants. It is not a fraud, either actual or constructive, for a joint owner to purchase real estate sold ‘at sheriff’s sale to enforce payment of taxes or a municipal claim. The duty rested upon each of the owners to discharge the liability, and payment by one is presumed to have been in behalf of all. The defendants had notice before the first sheriff’s sale of the design of Mr. Trimble to bid in the property for the plaintiff’s daughters and also knew that this plan had not been carried out. The project failed before the sale at which the defendants acquired title. The acquiescence of the plaintiff in this plan would not estop him from asserting’his right under a sale which he did not attend and with which he did not interfere. The evidence at most bears upon a 'question of waiver by the plaintiff and an election to permit the defendants to acquire title. What the plaintiff, appears to have done was to consent to Mr. Trimble’s plan to buy in the property for the girls, and in the event that it was so acquired to execute a quit-claim deed for his interest therein. Whether he would have done so if he had understood that an arrangement could be made by which the money necessary to discharge the liens could be obtained on the credit of the property, as was subsequently. done by the defendants, is not disclosed by the testimony. We think it does not clearly appear from the evidence presented that the plaintiff, either before or after the sale, waived his right to call for his share of the property remaining after the defendants were reimbursed for their outlay. Facts may exist which were not disclosed at the trial which would throw additional light upon this question. If unfairness and bad faith are to be imputed to the plaintiff because he was willing that Mr. Trimble should provide the money to acquire the title for his daughters, the defendants would be under the same imputation in having bought the property and asserting a title against their cotenants. We think the case does not turn upon the question of estoppel or fraud, and that the 8th, 9 th and 10th assignments of error should, therefore, be sustained.

It is not clearly shown that the plaintiff understood that he was paying rent to the defendants. His title, if otherwise good, could not be defeated by the testimony offered upon this point.

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