text:
    Punxsutawney, Appellant, v. Carmalt.

      Road, law — Curbing—Boroughs—Act of April 8,1851, P. L. 880.

    1. Under the Act of April 3,1851, P. L. 320, a borough has the power to require the curbing of the footwalks on its streets at the expense of the abutting owner; and such cost may be imposed upon the owner although the curb is contiguous to a paved street, and there is no sidewalk or paved footway contiguous to the curb between the curb and the property line. It is not necessary that the space allotted for a sidewalk be covered by paving. It is a sidewalk even if not paved.

      2. A borough has a right to place the curb when the cartway of a street is paved, and at the same time charge the owner for the cost of the curb, although at the time there is no sidewalk or paved footway.
    Argued May 3, 1910.
    Appeal, No. 191, April T., 1910, by plaintiff, from judgment of C. P. Jefferson Co., Aug. T., 1908, No. 309, on verdict for defendant in case of Punxsutawney Borough v. Edward A. Carmalt.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit for the cost of curbing. Before Reed, P. J.
    At the trial it appeared that the defendant owned land abutting on North Main street in the borough of Punxsutawney. On February 4, 1907, a borough ordinance was passed providing for the curbing of North Main street for a stretch, which at the time was an unimproved country road. The entire width of the street was twenty-five feet. The curb on either side was set twelve and one-half feet from the property line, and the space between the curb lines, twenty feet, was to be paved with brick. There was evidence that one of the purposes of the curb was to hold the brick pavement in place, and that the borough could not build a brick pavement without the curb. The jury returned a verdict for the plaintiff for $863.89, subject to the question of law reserved whether there was any evidence entitling the plaintiff to recover. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      W. M. Gillespie, for appellant.
    The space between the curb and the property line is a sidewalk even if it is not paved: Guinter v. Williamsport, 208 Pa. 587; Martin v. Williamsport, 208 Pa. 590; Beltzhoover Boro. v. Maple, 130 Pa. 335; Livingston v. Wolf, 136 Pa. 519.

      October 10, 1910:

      C. Z. Gordon, with him A. L. Cole and Jeff. G. Wingert, for appellee.
    The curb was not intended as a sidewalk curb; it has nothing to do with the sidewalk and there is no reason whatever for supposing that anyone ever intended it as such. It is a cartway curb pure and simple and no amount of sophistry can make it anything else.
    The courts have always recognized a distinction between the street proper and the sidewalk: McMarlin v. Butler Boro., 41 Pa. Superior Ct. 20; O’Malley v. Olyphant Boro., 198 Pa. 525; Craig v. Phila., 89 Pa. 265; Seely v. Pittsburg, 82 Pa. 360.
   Opinion by

Henderson, J.,

The power of the borough to require the curbing of the footwalks on its streets at the expense of the abutting owners cannot be denied. Such authority is expressly given by the Act of April 3, 1851, P. L. 320. It was under this act that the borough proceeded in setting the curb, for the collection of the cost of which this action was brought. No question is raised as to the regularity of the proceeding and unless the borough failed to construct a side or footwalk curb it is entitled to a judgment on the verdict. It is contended that what the defendant is charged with is a part of the improvement of a paved street and that the liability of an abutting owner therefor only arises when the improvement is undertaken on the petition of two-thirds of the owners of property representing not less than two-thirds in number of feet of the properties abutting on the street proposed to be paved as provided by the Act of April 23, 1889, P. L. 44, and that the requisite petition was not had as a condition precedent to the charging of the defendant’s property with any part of the cost of the work done, and the opinion of the learned judge of the court below on the motion for judgment for the defendant non obstante veredicto shows that the judgment appealed from was entered on the theory that the curb set in the street was a cartway curb and not a sidewalk curb and therefore not an improvement for which an abutting owner could be made liable except under the act of 1889. It is assumed that because the curb is contiguous to the paved street and there is no sidewalk contiguous to the curb or paved footway between the curb and the property line the curb is a driveway curb and not a pavement curb. If there were any statute declaring where the sidewalk curb must be located with reference to the property line or the cartway or if a practice so generally prevailed with reference to the location of sidewalk curbs that it could with certainty be said that the sidewalk curb must be contiguous to the sidewalk or not contiguous to the street pavement the conclusion reached would be well founded. The act of 1851, as amended by the Act of May 22, 1883, P. L. 39, gives to the several boroughs of the commonwealth power “to regulate the roads, streets .... and footwalks, .... and the heights, grades, widths, slopes and forms thereof, and they shall have all other needful jurisdiction over the same, and they shall have power to survey, lay out, enact and ordain footwalks .... and to fix the size and width thereof .... in accordance with the general regulations prescribed,” and also “to require and direct the grading, curbing, paving and guttering of the side or foot walks by the owner or owners of land respectively fronting thereon in accordance with the general regulations prescribed.” Under this authority the borough undertook to define and mark the outside lines of the wagon way and the width of the space set apart for the foot-walks and the other purposes for which the sidewalk area may be used. It is not necessary that this latter space be covered by paving. It is a sidewalk even if not paved. The time when, and the manner in which, a pavement shall be laid thereon and the extent to which the space shall be covered is a subject of municipal discretion. The paved sidewalk may be, and in boroughs generally is, laid before the street is paved and in the residence portions is generally placed at a greater or less distance from the paved street. It may serve the purpose of retaining the material used in the paving of the wagon way and still effectually establish the limit of the sidewalk. In the case of paved streets it is perhaps the general practice to set the curb along the line of the pavement and not at the outside of the paved footwalk except where the paved footwalk and the cartway are contiguous. But the curb is nevertheless a footwalk curb. The fact that it is set when the street is paved does not determine its character. It is within the authority of the borough to proceed under the act of 1889, on the petition there provided for and construct the paved street which includes a curb, but the borough is not bound so to do. It may proceed under the act of 1851 without paving the street, and the curb is to be considered as having the character which the ordinance gives it, and this is shown by the ordinance under which the borough proceeded in this case. The width of the cartway is fixed, the location of the curb line is established at the outside lines thereof and the remainder of the street is thereby set apart for sidewalk purposes. The ordinance has no reference to the paving of the cartway and the case should be disposed of from a consideration of the power of the council to enact the ordinance. The eighth section of the Act of June 4, 1901, P. L. 364, recognizes the practice with reference to the improvement of streets and provides that claims can only be filed against the owner for curbing and recurbing, paving and repaving or repairing the foot-way of any highway after the owner has neglected to do the work for such length of time as may be prescribed by ordinance, “except when in the case of curbing or re-curbing or repaving the footway it shall form part of an improvement resulting in the paving, macadamizing or otherwise improving the cartway of said highway.” Here there is a clear implication of authority to place the curb when the street is paved and at the same time charge the owner for the cost of the curb. A fact which influenced the trial judge was that after the enactment of the ordinance referred to the state highway department graded and paved the street along which the curbs were made on some arrangement with the borough the particulars with reference to which were not proved, but we do not regard this as a consideration affecting the right of the borough to fix the curb line and require the construction of the curb. Any aid which the state highway department furnished toward the paving of the roadway was in relief of the borough or of the abutting property owners and did not control the action of the borough council in the matter of the curbs. That body might with entire propriety accept the grade submitted by the highway department and it is not made to appear in the argument of the learned counsel for the appellant how the defendant was prejudicially affected by such action. In Guinter v. Williamsport, 208 Pa. 587, an ordinance set apart a space ten feet wide between the property line and the street for a sidewalk. On this space a pavement five feet wide was laid one side of which was one foot and ten inches from the property line and the other side, three feet and two inches from the street. The street had never been paved nor was the sidewalk separated from the street by a line of curbstone, but the demarcation between the two was noticeable. The space between this demarcation and the property line was recognized as the sidewalk although the paved way was only five feet wide and a space three feet and two inches wide intervened between the sidewalk and the street line. In Martin v. Williamsport, 208 Pa. 590, there was a paved sidewalk five feet in width. Between the outer edge of the pavement and the curb there was a space four feet and eight inches occupied as a grass plot. The distance between the property line and the curb was twelve feet and six inches. The whole of this space was regarded as sidewalk and the portion between the paved walk and the curb was referred to by the court as the “unpaved part of the sidewalk.” In Beltzhoover v. Maple, 130 Pa. 335, the manner of construction of sidewalks with reference to property and curb lines in the city of Pitts-burg is commented upon, from which it appears that the general method was the same there as in Williamsport and as is well known to exist in municipalities generally, outside of the business or thickly settled districts. In Dickinson v. Worcester, 138 Mass. 555, it was held that “curbstones” in the ordinance under consideration meant the curbstones which lie between the sidewalk and the part of the street devoted to carriage travel. It is not material that the curb is not made to conform to the grade of the sidewalk. The grade of the curb is fixed with reference to the grade line of the road paved by the state and the fixing of the grade of the sidewalk is a proper matter for subsequent legislation if not already done. The borough having given to the curb in question the character of a sidewalk curb and having collected the cost thereof would be estopped from asserting the contrary hereafter. It could not now take the position that the curb is constructed to define the limits of the paved way and the sidewalk and afterward require the abutting owner to construct another sidewalk curb. We regard it as settled by general usage and authority that the curb need not be contiguous to the paved portion of the sidewalk and that the space between the property line and the line designated by the borough authorities as that set apart for a wagon way is the side or footway in the ordinary streets of boroughs and that the construction of a curb along the line marking this division of the street is a side or footwalk curb within the meaning of the act of assembly. We are therefore constrained to hold that the plaintiff is entitled to the verdict recovered.

The judgment is therefore reversed and judgment is now entered for the plaintiff on the verdict.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Rees v. Ringler, Appellant.

      Affidavit of defense — Practice, C. P. — Mortgage—Mines and mining— Release of surface support.

    1. An affidavit of defense to a scire facias on a purchase money mortgage is insufficient to prevent judgment which avers that there was special reference in the deed from the plaintiff to the defendant to a deed which made the owners of coal beneath the mortgaged land liable for damages to the surface, that representations wore made to defendant at the time she took title, from which she believed that she had a right to surface support, and that she had no knowledge of a release of surface support made by the plaintiff prior to his deed to her.
    2. In such a case the defendant must go further and show what the special reference was, by whom the representations were made and that she was induced to accept the deed by reason of such representations; and she must also show specifically the nature and the amount of the damage which she seeks to set off against the mortgage.
    Argued May 4, 1910.
    Appeal, No. 35, April T., 1910, by defendant, from order of C. P. Somerset Co., Feb. T., 1909, No. 280, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Mary Rees, Administratrix of Thomas Rees, deceased, v. Ellen M. Ringler and her husband, S. J. Ringler.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Scire facias on a purchase money mortgage.
    Rule for judgment for want of a sufficient affidavit of defense.
    The affidavit of defense was as follows:
    On June 30, 1902, Thomas Rees and wife conveyed to the defendant, Ellen M. Ringler, two parcels of land situate in Elk Lick township, Somerset county, Pa., parcel No. 1 containing a little over sixty-three acres, and parcel No. 2 containing a little over six acres. Said deed which contains a clause of general warrantry, is recorded in the office for recording deeds at Somerset, Pa., in Deed Record, vol. 125, p. 136. The consideration for said deed was $2,500 — $600 of which was paid as hand money, and the mortgage above described was given for $1,900 to secure the payment of the balance of the purchase money. The payments being $300 each for five years, beginning June 15, 1903, and $400 payable in 1908, with interest. The defendant has paid on said mortgage and for which she is allowed credits, payments amounting to $1,630.18. That as to the balance of said mortgage defendant claims a set-off as follows:
    Title to said premises at one time vested in W. J. Baer, who was the owner in fee simple of the surface and minerals under said tract of land. That said W. J. Baer conveyed the surface of said farm to J. M. Hay and the minerals to other parties but that in the severance of the minerals from the surface the parties taking out the minerals were liable for any damages done to the surface. That several actions at law and proceedings in equity had been instituted and carried to a termination in the courts of Somerset county by which it was fully, firmly and finally settled: That the owner of the surface was -entitled to recover damages from the parties who mined and removed the coal. That in the deed from said Reese to said defendant a special reference is made to the said deed from W. J. Baer to said J. M. flay and the rights of the parties as established by said conveyance and defendant believed from representations made to her at the time said conveyance was made and from the conveyance itself, that her rights were the same as those of J. M. Hay as acquired by virtue of the deed as aforesaid, and she was not aware of any release of surface damages or any conveyance by which the owner of the surface would be debarred in any way from maintaining an action for damages to the surface by reason of the mining and removing of the coal. That since said conveyance by said Thomas Rees to the defendant the owners and operators of the coal under said farm have been removing the coal and have not left sufficient ribs or pillars under for the support of the surface and by reason thereof the surface has subsided, caved in and the farm has been very much damaged, and that said owners, miners and operators of the coal threaten and declare that they will continue to mine and remove all of the coal under said farm, including all of the ribs and pillars as aforesaid by which a very great amount of damage and injury will be done to your affiant. That the damages already done to the said farm are largely in excess of the balance due on said mortgage and that the defendant will have a claim against the estate of said Thomas Rees for a large sum of money in addition to the balance of said mortgage by reason of the injuries already done and which will hereafter occur by reason of the mining and removing of the coal as aforesaid.
    That since the conveyance by said Thomas Rees to the defendant as aforesaid, the. defendant has learned that when the said Thomas Rees and one, Frank Ehlen, were the joint owners of said property they made a conveyance to the Keystone Coal Company, at a time prior to the conveyance of said Reese to the defendant, by deed dated March 12, 1906, and recorded in the office aforesaid in Deed Book, vol. 85, p. 546, wherein and whereby the said Ehlen and Rees as owners of the surface of said farm released the said Keystone Coal Company, its lessees and assigns from all damages to the surface of said farm by reason of the removal of the pillars and ribs necessary for the support of the surface and by said conveyance permitted the said Keystone Coal Company, its lessees and assigns to remove all coal therefrom regardless of the injuries or damages to the surface of said farm, and in consequence of said conveyance the defendant cannot seek redress for said injuries from the parties so removing said coal and is compelled to resort for redress to her rights under the deed from the said Thomas Rees to her, conveying said property as aforesaid. She prays that the said deed from Thomas Reese to her and all the other deeds herein referred to which are recorded as aforesaid be made part of this affidavit of defense.

      October 10, 1910:
    The court in an opinion by Kooser, P. J., made absolute rule for judgment for want of a sufficient affidavit of defense.

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

      W. H. Ruppel, with him C. F. Uhl, Jr., for appellant.

      J. G. Ogle, with him W. H. Koonts, for appellee.
   Opinion by

Henderson, J.,

The defense which the appellants set up, arises out of an alleged breach of the covenant of general warranty contained in a conveyance of land made by Thomas Rees to Ellen M. Ringler on June 30, 1902. It appears from the affidavit of defense that the land formerly belonged to one Baer, who conveyed the surface to Hay and the minerals to other parties and that the grantees of the minerals were liable according to the terms of the grant for any damage done to the surface. The further allegation is that when Rees and one Ehlen were the joint owners of the property prior to the conveyance of Rees to the defendant they made a conveyance to the Keystone Coal Company wherein as owners of the surface they released that company, its lessees and assigns, from liability for all damages to the surface by reason of the removal of the pillars and ribs necessary for the support of the surface and by said conveyance permitted the coal company, its lessees and assigns, to remove all coal from under the surface without liability for any injury to the surface. The averment on which the defendants rely to introduce their set-off is “that in the deed from said Rees to said defendant a special reference is made to the said deed from W. J. Baer to said J. M. Hay and the rights of the parties as established by said conveyance, and defendant believed from representations made to her at the time said conveyance was made and from the conveyance itself, that her rights were the same as those of J. M. Hay as acquired by virtue of the deed as aforesaid, and she was not aware of any release of surface damages or any conveyance by which the owner of the surface would be debarred in any. way from maintaining an action for damages to the surface by reason of the mining and removing of the coal.” No other part of the affidavit sets forth any ground of defense. We have before us only the scire facias and the affidavit of defense, and the rights of the appellants cannot be considered except as presented in the affidavit. The “special reference” in the deed from Rees to Mrs. Ringler is not set out. Neither is there any statement of the representations made to Mrs. Ringler at the time her deed was delivered which induced her to believe that her rights were the same as those acquired by J. M. Hay, nor are we informed by whom the representations were made. There is also a failure to set. forth the nature of the damage and its amount. It may be that the appellants have a meritorious case arising out of the covenant in the deed to Mrs. Ringler, but the affidavit of defense does not exhibit the necessary facts to make such defense available. Without an examination of the deed from Rees to Mrs. Ringler there is no means of determining what the rights of the appellants are and this deed is not before us. It is unnecessary to cite authorities to show that averments in affidavits of defense must be definite and that where it is proposed to introduce a set-off the character and extent of the set-off must be set out in specific terms. The assignment of error must, therefore, be dismissed. We do this, however, without prejudice to the appellants’ right at law.

The judgment is affirmed.


author: Morrison, J.,

text:
    Commonwealth to use v. Schmeltz, Appellant.

      Husband and wife — Bond for support — Quarter sessions — Common pleas — Jurisdiction.
    A bond given by a husband in desertion proceedings to secure the payment of a weekly sum for the support of his wife may be sued upon in the common pleas without a prior forfeiture of the bond in the quarter sessions.
    Argued May 4, 1910.
    Appeal, No. 195, April T., 1910, by defendants, from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1907, No. 101, on verdict for plaintiff in case of Commonwealth to use of Carrie A. Schmeltz v. A. J. Schmeltz and A. W. Null.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a bond.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $300. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      H. M. Scott, for appellants.
    The quarter sessions had jurisdiction: Clark v. Com., 123 Pa. 555; Com. v. Duffy, 11 Phila. 378; Com. v. Steiger, 12 Pa. C. C. Rep. 334; Shriver v. Com., 2 Rawle, 206; Dillingham v. U. S., 2 Wash. C. C. (U. S.) 422; Fed. Cas. No. 3913; Com. v. Zeidler, 2 Lack. Leg. News, 356.

      Joseph F. Mayhugh, for appellee.
    Forfeiture of a bond in desertion and nonsupport cases is not necessary: Miller v. Com., 127 Pa. 122; Com. v. Griffiths, 2 Lacka. Jurist, 229; Com. v. Stark, 4 Lacka. Jurist, 150; Baughman v. Baughman, 13 York Leg. Rec. 19.

      October 10, 1910:
   Opinion by

Morrison, J.,

This is an action of assumpsit brought upon a written instrument designated as a bond and it is in the following form: “We, and each are jointly and severally indebted to the Commonwealth of Pennsylvania in the sum of Three hundred (300) dollars, to be levied of our lands and tenements, goods and chattels. Conditioned, that if the said Arthur J. Schmeltz shall pay the costs and pay to his wife $5 per week and enter into bond with surety in the sum of three hundred (300) dollars to comply, then this obligation to be void, otherwise to be and to remain in full force, virtue and effect. Arthur J. Schmeltz, A. W. Null. Taken and acknowledged in open court 23rd day of February, 1907. Wm. Dodds, Clerk.”

The affidavit of defense denied a breach of the bond and set up that defendant Schmeltz paid to the use plaintiff $1,000 in this way; he assigned to her $1,000 of the principal sum secured by a certain bond and mortgage, identifying the same, and averring that the mortgagors had paid $500 of the sum so assigned to the use plaintiff and averring that the balance of the sum so assigned is amply secured and will be paid to the use plaintiff when due. Wherefore, deponent says that he has not only performed the conditions of said recognizance but has largely overpaid said use plaintiff. The- inconsistency of the foregoing is shown by the fact that the defendant paid the use plaintiff, for her support, $80.00 several months after the date of said assignment.

On February 20, 1908, the wife filed a “replication,” denying that said $1,000 was paid on account of the condition of said recognizance, and averring “that the said Carrie A. Schmeltz, plaintiff, agreed with the said defendant, A. J. Schmeltz, to sign said deed conveying her dower interest therein for the price or sum of one thousand (1,000) dollars,” etc.

At the trial there was no evidence offered whatever, that the assignment of the bond and mortgage referred to in the affidavit of defense was made to apply on the bond in suit, and the court below, in the charge to the jury, said in that respect: “The defendants claim that the bond was paid, but we have been obliged to exclude their evidence because, in the view the court takes of the matter, the evidence is not competent and proper to submit to you, for the reason that the mortgage which has been referred to, the assignment of it and the payment under it, has not in any way been connected with the obligations of this bond. Therefore, you have no evidence in defense, and there is nothing for you to do but to render a verdict in favor of the plaintiff for the amount of the bond, which is $300, and we will ask you to render that verdict.” Defendants did not testify at the trial and there was really no dispute of fact. Upon the verdict so rendered, judgment was entered in favor of the commonwealth for $300, the penal sum of the bond.

Counsel for appellant has made an elaborate argument to convince us that the jurisdiction upon the bond in the present case was not in the common pleas but in the quarter sessions, and that no action would lie on this bond until after forfeiture in the latter court. We think the question of jurisdiction is well disposed of in Com. v. Griffiths, 2 Lacka. Jur. 229, where the court below said: “A clear distinction must be drawn between a recognizance conditioned for appearance in a certain court, and one conditioned for the payment of a sum or sums of money. In the former case the only possible evidence of breach of condition must be found in the record of the court in which appearance was to be made, and it is ruled that an adjudication of forfeiture by that court is a necessary precedent to an action upon the recognizance. In the other case, the question was directly presented by the first assignment of error in Miller v. Com., 127 Pa. 122, and the action upon the recognizance without adjudication of forfeiture was sustained.”

Now turning to that case we find that there were two actions in the common pleas of Union county brought in the name of the commonwealth against the defendants upon two recognizances entered into in the court of quarter sessions of Union county, in a proceeding wherein Thos. B. Miller had been adjudged guilty of wife desertion and sentenced to pay the costs of prosecution and a certain sum per week toward the support of his wife, the complainant. The writs were returned nihil habet as to Thos. B. Miller but served upon Thos. J. Miller, who appeared and filed affidavits of defense. The plaintiff moved for judgment for want of sufficient affidavits of defense. The cases were disposed of together. The court, Bucher, P. J., made the rules absolute. The defendant appealed and assigned for error. 1. “The court of common pleas had no jurisdiction in the cases as the recognizances had not been forfeited.” 2. “The court erred in making the rules for judgments for want of sufficient affidavits of defense absolute.” The Supreme Court disposed of the cases as follows: Per Curiam, “The judgment in each of the above cases is affirmed upon the opinion of the learned court below.”

We think that case rules the present one, not only upon the question of jurisdiction but as well upon the question of forfeiture. It has been decided by several of the common pleas courts that upon a bond, like the one in the present case, no forfeiture in the quarter sessions is necessary.

Counsel for appellant relies on Shriver v. Com., 2 Rawle, 206, upon the question of forfeiture, but that was a case of a recognizance for the appearance of a defendant in the next court of quarter sessions and of course it was necessary to forfeit such a recognizance in open court. What that case really decides is, “The record of the forfeiture of a recognizance in the proper court, is conclusive evidence of the forfeiture, in debt on the recognizance.” It has no application to the case under consideration, because in the latter the obligation is a bond duly signed by the parties, acknowledged and delivered, and in our opinion, it needed no forfeiture, except by a suit in the common pleas with a declaration that it had been forfeited by noncompliance with its terms, and proof sustaining such averment.

Counsel for appellant cites and relies on Kiehl v. Com., 18 W. N. C. 505, but we find nothing in that case sustaining his contention.

In the present case there was sufficient evidence of a failure of the defendants to pay the use plaintiff in accordance with the terms of the bond and this evidence was not disputed, and, therefore, the learned judge was warranted in directing a verdict in favor of the commonwealth for the exact penal sum of the bond. Notwithstanding the elaborate argument of the industrious counsel for the appellant, we entertain no doubt upon the question of the jurisdiction of the court,of common pleas in the present case, nor have we the slightest doubt that the action could be maintained without proving a forfeiture of the bond in the quarter sessions.

The assignments of error raise no other question or questions than those we have discussed and considered.

The assignments of error are all overruled and the judgment is affirmed.


author: Head, J.,

text:
    James Rees & Sons Company, Incorporated, v. Western Exposition Society, Appellant.

      Conversion — Remedy—Actions—Assumpsit—Sale or lease of goods.

    Where personal property of one has been wrongfully taken by another and remains in his possession, the owners cannot recover the price or value in an action of assumpsit; but this rule does not apply where the wrongdoer has by sale or lease of the goods, or otherwise, put it out of his power to respond in an action against him for the recovery of the goods themselves.
    Argued May 5, 1910.
    Appeal, No. 177, April T., 1909, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1903, No. 28, on verdict for plaintiff in case of James Rees & Sons Company, Inc., v. Western Pennsylvania Exposition Society.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for the value of a gravity railroad. Before Macfarlane, J.
    At the trial it appeared that the defendant had licensed James A. Griffith to erect and operate a gravity railway upon a portion of its land during an exposition season. At the end of the season Griffith was in arrears for rent, and did not remove the gravity railway. Subsequently the defendant leased the land with the gravity railway upon it to other parties. About a year after-wards the gravity railway was destroyed by fire. The plaintiff had acquired title to the railway by a bill of sale from Griffith.
    Verdict and judgment for plaintiff for $1,400. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      B. J. Jarrett, with him Willis F. McCook, for appellant.
    Assumpsit was not the proper remedy: Hindmarch v. Hoffman, 127 Pa. 284; Huntsecker v. Heiney, 11 S. & R. 250; Willet v. Willet, 3 Watts, 277; National Trust Co. v. Gleason, 77 N. Y. 400; Lamine v. Dorrell, 2 Lord Raymond, 1216; Jones v. Hoar, 22 Mass. 285; Satterlee v. Melick, 76 Pa. 62; Bethlehem Boro. v. Fire Co., 81 Pa. 445; York Trust Co. v. Moul, 15 York Leg. Record, 137; Krause v. R. R. Co., 4 Pa. C. C. Rep. 60; Glasscock v. Hazell, 109 N. C. 145; Kidney v. Persons, 41 Vt. 386; Rogers v. Greenbush, 57 Maine, 441; Moody v. Walker, 89 Ala. 619; Berkshire Glass Co. v. Wolcott, 84 Mass. 227; Craig v. Arendale, 113 Ga. 181; Southern Ry. Co. v. Attalla, 147 Ala. 653; Hagar v. Norton, 188 Mass. 47; Mather v. Trinity Church, 3 S. & R. 509; Kier v. Peterson, 41 Pa. 357.

      October 10, 1910:

      John S. Ferguson, for appellee.
    Assumpsit was the proper remedy: Balliet v. Brown, 103 Pa. 546; Allen v. Kellam, 94 Pa. 253; Deysher v. Triebel, 64 Pa. 383; Satterlee v. Melick, 76 Pa. 62.
   Opinion by

Head, J.,

As the case was submitted to the jury their verdict establishes that there was an actual conversion by the defendant to its own use. of the property of the plaintiff. That there was sufficient evidence to warrant such submission and to sustain the verdict of the jury is clearly shown by the learned trial judge in his opinion refusing a new trial and directing judgment to be entered on the verdict. We need not here repeat his analysis of the testimony. There remains but a single question for consideration.

There can be no doubt of the existence of a general rule which in substance declares that where the personal prop- Í erty of one has been wrongfully taken by another and j remains in his possession, the owner cannot recover its 1 price or value in an action of assumpsit. The able counsel 1 for appellant has cited a long list of cases in this and other jurisdictions in which the rule has been formulated and its application discussed by eminent jurists. Deysher v. Triebel, 64 Pa. 383; Satterlee v. Melick, 76 Pa. 62; Bethlehem Borough v. Fire Co., 81 Pa. 445; Balliet v. Brown, 103 Pa. 546, are all on this subject and will sufficiently point the way to the earlier precedents which have long since placed the existence of this rule beyond question.

There are, however, and have been long a number of exceptions to the general rule as widely and as completely recognized as the rule itself. Thus where it could be shown \ that the goods wrongfully converted had been sold, it \ has been held that the owner might waive the tort and i maintain an action of assumpsit for their price. The_,'principle on which the exception appears to rest is that the wrongdoer has by selling the goods asserted in the strongest manner his title to and right of dominion over them. He has put it out of his power to respond in an action against him for the recovery of the goods themselves. He has voluntarily placed himself in the attitude of one who had bought the goods, and although he did not in fact promise or intend to promise to pay for them, the law makes such promise for him, and it is upon the promise thus raised by the law the plaintiff’s right to mainTtain assumpsit rests. Even where no such sale has been ! in fact shown, the law has under certain circumstances ! presumed such a sale and again raised the promise on the | part of the defendant to pay just as if the sale had been ! proven. Such was the case long ago decided by Lord ! Mansfield where one who had wrongfully gotten pos- ; session of a ticket for a masquerade party refused to ! account for it to the lawful owner of it. In delivering the j opinion of the court in that case that famous judge said: ' “If he sold the ticket and received the value of it, it was i for the plaintiff’s use because the ticket was his. Now, ' as the defendant has not produced the ticket, it is a fair : presumption that the defendant had actually received ! the money for the ticket.” The plaintiff was permitted IJjO recover.

In Deysher v. Triebel, 64 Pa. 383, Mr. Justice Sharswood uses the following language: “Tn many cases,’ says Mr. Leigh, 'where the defendant has received goods wrongfully, a contract for the purchase will be inferred, and the plaintiff may waive the tort and recover the amount in an action for goods sold and delivered.’ . . . And in Studdy v. Sanders, 5 B. & C. 628, where the vendor of cider-juice to be made on his premises, lent casks to the vendee for the purpose, which were seized through the vendee’s fault for a breach of the excise laws, it was held that the vendor might recover the price of the casks as for goods sold.” Still further, it has been said that if the goods were of such character that the defendant, after converting them to his own use, had consumed them, a plaintiff might maintain an action of assumpsit for the price.

In Balliet v. Brown, 103 Pa. 546, Mr. Justice Clark said: “An attachment execution will not lie for a demand founded in tort, as for the detention of chattels; it can only be sustained for a debt arising from contract expressed or implied: Boyer v. Bullard, 40 Legal Int. 302. But where there is a conversion, there is an implied sale, and, waiving the tort, an action of assumpsit for goods sold and delivered can be maintained upon the contract implied; the value is regarded as 'a debt due’ within the meaning of the 35th section of the Act of June 16, 1836, P. L. 755.”

In the present case it is true it was not shown that the defendant had made an absolute and entire sale of the corpus of the property which was the subject of the litigation, but it had asserted its right to sell it and it had actually sold, for a considerable sum of money, the use of the property for a period of time. In form this was a lease of the property, but the execution of this lease was in substance an exercise of the same power and dominion over the property as if the sale had been complete. The defendant had thus voluntarily put itself in the attitude of one who had acquired the lawful title to the property by purchase, and we can see no reason why the law would not thereupon raise a promise on its part to pay for it. It is also true that the corpus of the property, while the defendant thus held possession of and exercised control over it, was destroyed by fire. But this fact ought not to relieve it from liability on its implied promise any more than did the seizure of the cider casks by the revenue officers in the case already cited. We are of opinion therefore that the facts of this case fairly bring it within the recognized exceptions to the general rule upon which the appellant relies.

We note the statement in the appellee’s printed brief that this case has been tried twice in the court below; that the technical defense now relied on was not made at all during the first trial, and that any new action which the plaintiff could now bring would be barred by the statute of limitations. The able counsel who argues for the appellee frankly states, howeyer, that these facts would not furnish any warrant for the court refusing to apply a well-settled rule of law in a case that clearly invited such action, on the principle of course that hard cases make bad precedents. But in balancing the reasons for and against a proposition that may be fairly said not to be free of doubt, we do not think such considerations should necessarily be entirely disregarded. The assignments of error are overruled.

Judgment affirmed.


text:
    Weisfield v. Beale, Appellant.

      Mines and mining — Mining privileges on surface — Trespass quare clausum fregit — Actions—Practice, C. P.

    1. Where it appears that the defendant in an action of trespass quare clausum fregit owns coal under the surface of land, without reversionary rights but including mining privileges as to the surface with a right to lay a tram thereon, and where it also appears that the plaintiff purchased the surface with full knowledge of defendant’s rights, and of the existence of the tram, and the plaintiff has never been in possession of the portion of the surface covered by the tram, the latter cannot maintain the action on the ground that the defendant hauled coal from other lands over the tram constructed on the surface.
    2. The plaintiff in an action of trespass quare clausum fregit cannot recover even nominal damages where he has never had possession nor the right of possession of the locus in quo.

      Bankruptcy — Trespass—Damages in trespass without malice.

    3. Damages in trespass without malice or willfulness are dischargable in bankruptcy.
    Argued May 9, 1910.
    Appeal, No. 133, April T., 1910, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1908, No. 168, on verdict for plaintiff in case of C. A. Weisfield v. Joseph G. Beale.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.

      October 10, 1910:
    Trespass quare clausum fregit. Before Patton, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1.00. Defendant appealed.

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

      H. B. Wassell and C. E. Harrington, for appellant.—
    Trespass quare clausum fregit cannot be maintained if the defendant was in possession of the locus in quo when the alleged trespass was committed, and had been in possession for some years previous thereto: Collins v. Beatty, 148 Pa. 65; Busch v. Calhoun, 14 Pa. Superior Ct. 578.
    An unliquidated claim which might have been liquidated and proved under sec. 63b is discharged: Loveland on Bankruptcy (2d ed.), 762; In re Hilton, 104 Fed. Repr. 981, 4 A. B. R. 774; Collier on Bankruptcy (7th ed.), 700; Walser v. Gottleib, 12 Luz. Leg. Reg. Repr. 121.

      Harry C. Golden, for appellee.
    In the case at bar, the plaintiff showed that the land was unimproved, and showed a legal title in himself, beginning with a patent from the commonwealth. This was sufficient to show a constructive possession, and such possession is sufficient to sustain an action of trespass quare clausum fregit: Wilkinson v. Connell, 158 Pa. 126; Hess v. Sutton, 33 Pa. Superior Ct. 530; Olewine v. Messmore, 128 Pa. 470.
    ' The claim was not barred by bankruptcy proceedings: Dunbar v. Dunbar, 10 A. B. R. 139; In re John Wigmore & Sons Co., 10 A. B. R. 661; In re United Button Co., 15 A. B. R. 390; In re Crescent Lumber Co., 19 A. B. R. 112; Brown & Adams v. Button Co., 17 A. B. R. 565.
   Opinion by

Morrison, J.,

By deed dated February 19, 1859, recorded the same date, in Armstrong county, Peter Schaffer sold and conveyed to Thomas Donley, “all the cannel, bituminous and other coals in or under all the land on which the said party of the first part now lives,” fully describing it, situate in Armstrong county, Pennsylvania, and said deed contained, inter alia, the following: “also free ingress and free egress over and through the land of the said party of the first part, so as to allow the said party of the second part, his heirs and assigns, to take out and carry off the said coal or coals as he or they may consider necessary, with the right and privilege to use the entries for any purpose. And to erect, make and keep in repair such roads, scaffolds and other fixtures as he or they may desire to erect, repair or remove from time to time.”

It is conceded that said tract of land contained 200 acres and that said conveyance worked a severance of the coal from the surface of said land. In short, under the authorities, the said conveyance vested in the grantee therein an estate in land, as to the coal therein mentioned. At the trial it was proved, and is now a conceded fact, that the coal rights and privileges created by said deed became vested by deed dated September 2, 1898, and other conveyances, in the Aladdin Coal Company, Limited, and the defendant Joseph G. Beale. That the defendant went into possession of the said mineral estate several years before the plaintiff secured any interest in the surface of said tract of land. The surface of part of the original Donley tract became vested in Solomon Wolfe in 1871, and he having died, the land was partitioned in 1906, and at the master’s sale, C. A. Weisfield, the plaintiff, by a deed dated June 29, 1906, purchased purpart “M” of said surface, containing eight acres and 150 perches. The defendant had opened the mine and constructed, as he had a lawful right to do, a tram or entryway from the pit mouth on the side hill down across the said surface land for a distance of about fifteen rods to his tipple, near the railroad, for the purpose of transporting the coal from the pit opening to said tipple. A considerable quantity of coal had been mined and removed from the Donley tract, otherwise designated as the Solomon Wolfe tract, over said tramway to- said tipple. In removing coal from the Donley tract the defendant had made certain openings and gangways leading through the coal in said tract so that these openings or passageways extended to other coal belonging to the defendant underlying land adjoining the said Donley tract. No question is raised in this case about the right of the defendant to construct said elevated tram or entryway from the pit mouth to the tipple and to transport all the coal mined from the Donley tract over the same. It is not contended that the defendant took possession of or occupied any more land for his elevated tramway than was necessary; nor is it contended that the defendant was guilty of any trespass as to the plaintiff’s land in respect to the erection and operation of said tramway in so far as it related exclusively to the removal of the coal from the Donley tract to the tipple. But, incidentally, the defendant brought coal from the adjoining tract through the openings and gangways in the Donley tract and transported said coal from the pit mouth over the said tramway to the said tipple and it is for so doing that the learned court below gave a binding instruction to the jury to find a verdict in favor of the plaintiff for nominal damages in this action of trespass.

The declaration is in trespass quare clausum fregit, pure and simple. It contains no averment of damages to plaintiff’s reversionary right, if any such right existed. The first charge in the declaration is, “that continuously, since June 29, 1906, and until the present time, the defendant, Joseph G. Beale, through his agents and employees, has trespassed upon the aforesaid close of the plaintiff, by emptying the waste from the defendant’s coal mines into certain vacant chambers under the aforesaid close or tract of land belonging to the plaintiff.” Then averring damages on this account in the sum of $1,000. But this averment of the declaration was not sustained by any evidence and the learned court did not submit that complaint to the jury.

The only other averment in the declaration upon which the plaintiff could contend for a recovery is, “That the defendant, since June 29, 1906, and until the present time, has continuously been hauling coal over the plain-, tiff’s land, without any legal authority or right so to do. The plaintiff estimates the damage from such unlawful hauling of coal over his land by the defendant at $700, and therefore claims damages in this amount from .the defendant.” The learned court below limited the plaintiff’s fight of recovery to nominal damages for what he conceived to be a technical trespass by the defendant in transporting coal over said tramway, mined from land adjoining the Donley or Wolfe tract.

The undisputed evidence shows that the defendant was lawfully in the actual and exclusive possession of the strip of land on which his tramway rested for several years before the plaintiff acquired any interest in the locus in quo. It is true that this tramway was constructed part of its length over purpart “M” which plaintiff acquired title to by the deed of June 29, 1906, above referred to. But it was proved, and is conceded, that the plaintiff purchased said purpart “M” with full knowledge of the defendant’s coal operations and his rights in respect thereto, and with full knowledge that defendant’s tramway rested in part upon a portion of said purpart. The uncontradicted evidence showed that the plaintiff was never in possession of so much of said purpart as was occupied by said tramway, nor had he the right to the possession of the same, because the defendant was lawfully in possession thereof for the purpose of transporting the coal from the Donley tract to the tipple and he was constantly using the tramway and his lawful possession necessarily and effectually excluded the plaintiff from acquiring possession of so much of purpart “M” as supported said tramway.

Upon this state of the case the learned counsel for defendant presented their second point (tenth assignment of error), to wit: “Under the pleadings and evidence in the case, trespass quare clausum fregit cannot be maintained, the defendant being in possession of the locus in quo when the alleged trespass was committed, and has been in possession for many years previous thereto, and the verdict must be for the defendant. Answer: That point is refused.” We think this point ought to have been affirmed for the reasons stated therein as well as those we have already expressed. How a plaintiff can be allowed to recover, even nominal damages, in an action of trespass quare clausum fregit in a case where he never had possession nor the right of possession of the locus in quo, we are not able to understand.

The portion of purpart “M” occupied by defendant’s tram or entryway was about twelve feet wide and extended about 200 feet in length over said purpart “M.” As we have seen when plaintiff purchased this purpart the defendant was in the actual, open and exclusive possession of this strip of land with his tramway. Another fact to be considered in this connection is that when the plaintiff purchased said purpart the defendant was mining and transporting coal over said tramway from the Donley tract, and, therefore, the plaintiff could not and did not acquire such possession of the locus in quo as would entitle him to recover in trespass quare clausum fregit.

In Collins v. Beatty, 148 Pa. 65, the Supreme Court said: “We do not think the court below erred in giving the jury a binding instruction in favor of the defendant. The action was trespass quare clausum fregit, and the plea ‘not guilty.’ The evidence showed the defendant to have been in possession of the locus in quo at the time the alleged trespass was committed, and for some years before. Under such circumstances the action of trespass cannot be maintained.”

In Busch v. Calhoun, 14 Pa. Superior Ct. 578, we held as expressed in the syllabus: “Trespass quare clausum fregit cannot be maintained if the defendant was in possession of the locus in quo when the alleged trespass was committed, and had been in possession for some years previous thereto.

“The act of 1887, while abolishing certain distinctions in actions makes no change as to the particularity with which matters of substance, indispensable to an intelligent and just judgment between the parties, must be set out. Under the Act of May 25, 1887, P. L. 271, trespass will lie for the use and occupation of premises, the possession of which was not in the plaintiff during the period sued for but the cause of action must be adequately set out in the pleading.”

There is nothing in the declaration raising the question of the right of the plaintiff, although not in possession, to recover damages for injury to his reversionary right, if any such right should exist after all of the coal had been mined in the Donley tract, and therefore that question is not before us. The plaintiff was bound to recover, under his declaration, in trespass quare clausum fregit or not at all.

The learned counsel for the plaintiff cites and relies on some of the well-known cases to the effect that where the trespass is committed on unimproved land, not in the actual possession of anyone, the person having a good title to such land has a constructive possession and can recover in trespass quare clausum fregit against a wrongdoer. The cases cited are Wilkinson v. Connell, 158 Pa. 126; Hess v. Sutton, 33 Pa. Superior Ct. 530; Olewine v. Messmore, 128 Pa. 470. But on the facts of the present case showing the defendant in the actual possession of the locus in quo at the time of the alleged trespass, those cases, and others in the same line, are strongly against the contention of plaintiff’s counsel. It is idle to argue that the plaintiff can recover under said authorities in a case where the defendant overwhelmingly proved by undisputed evidence his actual and undisputed possession of the locus in quo during all of the time the alleged acts of trespass were committed.

But there is another reason why the court should have given a binding instruction in favor of the defendant. An involuntary petition in bankruptcy was filed against the defendant on February 19, 1908. He was adjudicated a bankrupt on May 23, 1908, and discharged on May 26, 1909. His discharge was pleaded at the trial. This suit was instituted on August 10, 1908, to recover for alleged trespass from June 29, 1906, to February 19, 1908. At the time suit was brought the trustee in bankruptcy was in possession of the locus in quo and operating the Aladdin Coal Works. This question was squarely raised at the trial by defendant's seventh point (fourteenth assignment of error), to wit: "It appearing from the testimony the defendant was an adjudicated bankrupt at the inception of the suit, undergoing bankruptcy proceedings; and it further appearing from the evidence that there was no willful or malicious injury to the property of the plaintiff by the defendant, the claim of the plaintiff, if any, is a claim provable only against the estate of the defendant in bankruptcy at No. 3,981 western district of Pennsylvania, which is evidenced by the defendant’s discharge in bankruptcy; the plaintiff’s case, therefore, cannot be maintained in the present form and the verdict must be for the defendant.” The court refused this point but reserved the right to enter judgment for the defendant non obstante veredicto. The defendant’s counsel further moved for a binding instruction in favor of the defendant (fifteenth assignment of error) on the same ground, but the court overruled this motion and sealed a bill of exceptions for the defendant.

We are not able to discover any sufficient reason why the fourteenth and fifteenth assignments should not be sustained. We think if the plaintiff had any claim for damages it should have been proved and liquidated as a claim in the bankruptcy proceeding. We think it immaterial that the plaintiff’s claim was not liquidated and in the absence of a willful and malicious trespass the bankrupt’s discharge was a bar to a recovery. There is absolutely no evidence of a willful and malicious trespass, nor is there any evidence that the defendant by transporting coal from an adjoining tract, over the tramway from the pit mouth on the Donley tract to the tipple, did any substantial injury to the plaintiff.

In Quaker City Watch Co. v. Lamoreaux, 21 Pa. Superior Ct. 493, we held as follows: “The debts not affected by discharge in bankruptcy are enumerated in section 17, chapter 3, of the act of congress of July 1, 1898, wherein it is provided, subdivision 2: 'Judgments in actions for fraud to obtain property by false pretenses, or false representations, or for wilful and malicious injury to the person or property of another,’ ” etc.

An unliquidated claim which might have been liquidated and proved under sec. 63b, is discharged: Loveland on Bankruptcy (2d ed.), 762; In re Hilton, 104 Fed. Repr. 981; 4 A. B. R. 774; Collier on Bankruptcy (7th ed.), 700. In Shattuck v. Haworth, 91 Pa. 449, the Supreme Court held: “That the word 'fraud,’ as used in the 33d section of the Bankrupt Law of 1867, which provides that 'no debt created by the fraud or embezzlement of the bankrupt or by defalcation of a public officer or while acting in a fiduciary capacity, shall be discharged under this act,’ means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, or fraud in law, which may exist without bad faith or immorality.” While that case is not precisely in point, yet we think the principle is applicable to the present case, because to prevent the plaintiff’s claim from being discharged in bankruptcy the onus was on him to show willful and malicious injuries to his property and this we think he utterly failed to do and it ought not to be assumed that there was willfulness or malice where it clearly appears that the defendant was acting under a color or claim of right.

Whether the defendant had the right or not to transport coal from the adjoining tract over the said tramway is immaterial because of the absence of any willful or malicious trespass. Moreover, the language contained in the Donley deed of February 18, 1859, “With the right and privilege to use the entries for any purpose,” tends strongly to negative the idea that the defendant committed any willful and malicious trespass.

It was proved at the trial, and appears to be now conceded, that a considerable portion of the coal in the Donley tract had not been mined at the date of the trial, and, therefore, it seems clear that up till that time, at least, the defendant and those holding under the same title, under which he operated, had a clear right to the possession and use of said tramway over the surface of the Donley tract, at least for the purpose of transporting the coal from said tract.

After the learned court had refused the defendant’s points above quoted and directed a verdict in favor of the plaintiff, the learned counsel for the defendant regularly moved the court to enter judgment in favor of the defendant non obstante veredicto, upon the reserved questions, as well as upon the whole record, and on the point requesting binding instructions for the defendant; and to direct the stenographer to transcribe the whole record and notes of testimony taken at the trial. This motion was entertained by the court and a rule to show cause granted thereon. Subsequently, on November 30, 1909, the court filed an opinion which contained the following: “And now, November 30, 1909, motion for a new trial and the motion for judgment non obstante veredicto are both refused and judgment is now directed to be entered on the verdict on the payment of the jury fee.” On the same day defendant’s counsel excepted to this ‘opinion and decree and the court sealed a bill of exceptions. On December 31, 1909, judgment was entered on the verdict in favor of the plaintiff.

The refusal of the judgment for defendant non obstante veredicto is raised by the first assignment of error. We sustain the first, fourteenth and fifteenth assignments of error and the judgment is reversed, and judgment is now here granted in favor of the defendant non obstante veredicto, with costs of suit, including the costs of this appeal.


author: Orlady, J.,

text:
    Apollo Borough v. Clepper.

      Municipal liens — Locality index — Mandatory statute — Statutes.
    1. Section 27 of the Act of June 4, 1901, P. L. 364, which provides that “it shall be the duty of the prothonotary of the courts of common pleas to keep a locality index in which shall be entered all tax or municipal claims hereafter filed,” is mandatory; and if a locality index is not kept in a county, and a municipal lien for improvements is entered in the wrong name in the judgment and mechanic lien indexes, a purchaser of the property assessed, without actual notice of the hen, takes it free of the lien.
    2. Whether the words of a statute are to be interpreted as mandatory or merely directory depends upon whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form.
    3. A direction contained in a statute though couched as in permissive language will not be construed as leaving the acceptance optional, where the good sense of the entire enactment requires its provisions to be deemed compulsory.
    4. The words “shall be lawful” though permissive in form are to be construed as directory or mandatory according as the circumstances in each case show the intention of the legislature to be. '
    Argued May 9, 1910.
    Appeal, No. 169, April T., 1910, by William A. Shaw, Terre-Tenant, from judgment of C. P. Armstrong Co., March T., 1909, No. 222, for plaintiff on case stated in suit of Burgess and Town Council of Apollo Borough v. Lizzie Clepper, defendant, and William A. Shaw.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Case stated on scire facias sur municipal lien. Before Patton, P. J.
    The facts are stated in the opinion of the Superior Court.

      October 10, 1910:

      Error assigned was in entering judgment for plaintiff on case stated.

      H. A. Heilman, for appellant.
    The failure of the prothonotary to enter the municipal lien in this case in a locality index and the failure to keep such a book as required by sec. 27 of the Act of June 4, 1901, P. L. 364, invalidated the lien in this case and made the same void and of no effect as against him, a third person, an innocent purchaser for value: Glading v. Frick, 88 Pa. 460; Cessna’s App., 19 W. N. C. 530; Bear v. Patterson, 3 W. & S. 233;.Summy v. Hiestand, 65 Pa. 300; Goepp v. Gartiser, 35 Pa. 130; Smith’s App., 47 Pa. 128; Dewhurst v. Allegheny, 95 Pa. 437; Kisler v. Mosser, 140 Pa. 367; Erie City v. Willis, 26 Pa. Superior Ct. 459.

      Clarence 0. Morris, for appellee.
    The mention of the name of the owner in connection with the land is only required as descriptive of the land, and when the assessment and the claim themselves clearly and absolutely identify the land, that is all that is required: Phila. v. Nell, 31 Pa. Superior Ct. 81; Erie City v. Willis, 26 Pa. Superior Ct. 459; Phila. v. Peyton, 25 Pa. Superior Ct. 350.
    Where words are affirmative and relate to the manner in which power or jurisdiction in a public officer or body is to be exercised, and not the limits of the power, they are in general directory: Pittsburg v. Coursin, 74 Pa. 400; White v. McKeesport Boro., 101 Pa. 394; Beaumont v. Wilkes-Barre, 142 Pa. 198.
   Opinion by

Orlady, J.,

The plaintiff borough, under the provisions of an ordinance duly enacted, graded, curbed and paved with vitrified brick, Terrace avenue in the borough of Apollo. On October 18, 1903, viewers were appointed to ascertain the cost, the damages and benefits to the properties peculiarly benefited by the improvement, and among others there was assessed against the property of Mrs. Lizzie Clepper $188.40 as a benefit to her property.

At the time of the improvement, the correct name of the owner of the lot of ground involved in this proceeding, was Mrs. Nancy E. Clepper, as shown by her deed for the lot, which was of record in the recorder’s office of Armstrong county, although she was generally known in the community where she resided as Mrs. Lizzie Clepper. In the assessment made by the viewers, and the ordinance passed by the council, the property was described as being owned by Mrs. Lizzie Clepper, although the assessment against it for taxes was in the name of Mrs. Nancy E. Clepper, who was in the actual possession of the property during the time the improvement was made and for some time thereafter.

On March 21, 1904, the borough solicitor filed in the prothonotary’s office, a municipal claim for this improvement against “Mrs. Lizzie Clepper, owner or reputed owner, or whoever may be the real owner,” for the sum of $188.40, with interest from February 12, 1904, and described the property as follows: “All that certain lot or piece of ground, in the Borough of Apollo, Armstrong County, Pa., situated on the West side of Terrace Avenue, in said Borough; having a frontage on said avenue of eighty feet, and extending back, preserving the same width, thirty and seven tenths feet; bounded on the North by U. J. Miller; on the East by Terrace Avenue; on the South by North Fifth street; on the West by -. Together with the buildings and improvements thereon erected.” The lien was entered in the mechanic’s lien docket in the prothonotary’s office, and also in the judgment docket in the name of Mrs. Lizzie Clepper. It was not entered in a municipal lien docket or in a locality index, as provided by sec. 27 of the Act of June 4, 1901, P. L. 364; no such docket having been provided or kept for that purpose in that county.

On October 24, 1908, William A. Shaw made a careful examination of the lien records of Armstrong county, and finding no liens against Nancy E. Clepper, purchased the property from her, paid the purchase money in full and received a general warranty deed for the land which was duly recorded; subsequently he was notified of the claim of the borough by its solicitor, and on February 27, 1909, a scire facias sur municipal lien was issued in which Shaw was named as a defendant and terre-tenant.

The facts above stated were agreed upon for the opinion of the court, and in its opinion filed in the court below, a judgment was entered in favor of the plaintiff for the amount of the claim, with costs, to which William A. Shaw excepted and took this appeal.

It is admitted that had this been a proceeding in personam and had William A. Shaw, the purchaser, after proper examination of the lien records, failed to find any judgments against Nancy E. Clepper, that a judgment against Lizzie Clepper, would not bind the land, and he would take it clear of the lien: Crouse v. Murphy, 140 Pa. 335; Burns v. Ross, 215 Pa. 293. But the court held that this being a proceeding in rem, the land being debtor for the claim, it is not required that it should be filed against the true owner. It may be filed against the reputed owner; and this because the mention of the owner at all is requisite only as descriptive of the land, which is debtor to the assessment. The requisition that the claim shall state the name of the owner or reputed owner is the same as is made by the act of 1836, relating to the claims of mechanics and material men, under which it has been held that it is not necessary to set forth the name of the real owner, and the same principle has been held applicable to municipal claims. So too, in a sale of unseated land for the payment of taxes, a good title passes whether it is sold in the name of the owner, the name of the warrantee or a stranger, and whether the person in whose name it is taxed and sold has or has not any title: Strauch v. Shoemaker, 1W. & S. 166; Northern Liberties v. Coates, 15 Pa. 245. That under the above authorities the lien was a valid one against the land, whether the owner or reputed owner was Nancy E. Clepper or Lizzie Clepper, and that it was not necessary to make any record of the lien in a locality index, or for the prothonotary to have such a record, stating that, “a locality index is a novelty in rural communities of this commonwealth, and so far as we can learn from the books there is no case reported in regard to it except in the larger cities.” How the prothonotary of Armstrong county would keep a locality index, and what he should enter therein, would be hard to determine, there being no registry bureau as provided by the Acts of March 14, 1865, P. L. 320, and March 29, 1867, P. L. 600, which relate to the registry of titles in Philadelphia, and further, that the requirements of sec. 27 of the Act of June 4, 1901, P. L. 364, were directory only.

An examination of this act shows that it was very carefully considered before it was submitted to the governor for his approval. Its title is as follows: “An Act, providing, when, how, upon what property, and to what extent, liens shall be allowed for taxes, and for municipal improvements, and for the removal of nuisances; the procedure upon claims filed therefor; the methods of preserving such liens and enforcing payment of such claims; the effect of judicial sales of the property liened, and the manner of distributing the proceeds of such sales.”

It is an elaborate and comprehensive declaration of the legislative will, and its concluding paragraph is as follows: “And all other Acts or parts of Acts of Assembly of this Commonwealth, general, special or local, appertaining to the subject-matter covered by this Act, be and the same are hereby repealed; 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 this Act.” It contains forty-two sections, embodying thirty-nine pages of our Pamphlet Laws, and by specific mention repeals more than 200 acts and parts of acts, which were supplied by this later enactment. Section 26 is as follows: “Every claim filed, scire facias issued, verdict recovered, and judgment entered, in accordance with the provisions of this act, shall be docketed in the mechanic’s lien docket, and shall be entered on the judgment index of the court. When a claim is stricken off or satisfied, the name of a defendant stricken out, a scire facias discontinued or quashed, or a verdict or judgment stricken off or satisfied, a note thereof shall be made on said judgment index, but not in an appealable matter until the expiration of the time for such appeal.” Section 27 provides: “It shall be the duty of the prothonotaries of the Courts of Common Pleas to keep a Locality Index, in which shall be entered all tax or municipal claims hereafter filed, and upon any written order therefor they shall give a certificate of search showing all the claims filed against any property. For so doing they shall receive the sum of twenty-five cents, and five cents additional for each claim certified, and no more.”

The Act of March 31, 1864, P. L. 171, referred to by the’court below, provides for the more accurate indexing of liens against real estate in the city of Philadelphia, viz.: “It shall be the duty of .the prothonotaries of the Court of Common Pleas, and of the District Court of the City and County of Philadelphia, to keep a Locality Index, in which shall be registered the street front of real estate against which claims are or shall be filed, to enforce liens for taxes, municipal work, or of mechanics or material men, etc.” The requirements of the act of 1901 are expressed in plain, unambiguous terms, and are capable of a reasonable and intelligent application. The legislature had sufficient reasons for enacting them, and intended them to be complied with. They have been followed in a number of the rural counties with very beneficial results. While the act of March 31, 1864, affected Philadelphia county alone, it was an important step in a new system, and after a test of more than forty years, the act of 1901 extended the locality index provision to the rest of the commonwealth, and this has been the course followed in a number of other measures, where experience has demonstrated the efficiency and propriety of acts which were originally local in their application.

None of these acts of assembly relating to Philadelphia are repealed by the act of 1901, and we held in Philadelphia v. Unknown, 20 Pa. Superior Ct. 203, that they impose a positive duty upon all owners of lots, “to furnish forthwith, a description of their property to the chief engineer and surveyor, to aid him in making up the books of plans.” When property has been so returned, it is not subject to sale for taxes, or other municipal claims thereafter to accrue, except in the name of the owner as returned, and after recovery by suit, and service of writ on him, made as in the case of a summons, and that real estate registered as directed by the statutes referred to, is after such registration, not 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: Philadelphia v. Peyton, 25 Pa. Superior Ct. 350.

As was said by Judge Porter in Philadelphia v. Nell, 31 Pa. Superior Ct. 81: “Proceedings upon municipal claims are purely in rem, the proceeding is against the specific property, and the judgment in a scire facias upon such a claim creates no lien. Although the revival of the lien is affected in the same form, the lien of the claim, 'either before or after judgment thereon, is of a widely different nature from that of an ordinary judgment. It must be borne in mind, however, that judgments recovered upon mechanics’ and municipal liens, mortgages, recognizances in the orphans’ court, as to the lands of the principal cognizor, are not themselves liens as of the date of their entry, they simply give effect to the lien of the original debt, or the lien which they represent, respectively, as a means of enforcement and collection; therefore it is that the lien of a mechanic’s or municipal claim, when referred to in the various acts of assembly, even after judgment, is expressed as the lien of the debt or claim, and not of the judgment: Haddington Church v. Philadelphia, 108 Pa. 466; Helmbold v. Man, 4 Whart. 410; Wills v. Gibson, 7 Pa. 154.”

The general Act of March 18, 1875, P. L. 32, provides that, "In addition to the indexes which the recorder of deeds in each county of this commonwealth is required to keep, the said recorder shall carefully and accurately prepare and keep in his office, two general indexes of all deeds recorded therein, in one of which, to be known as the direct index, he shall enter in their order, the name of the grantor, etc., and in the other, to be known as the ad sectum index, he shall enter in their order the name of the grantee, the name of the grantor, etc. He shall in like manner also, prepare and keep two general indexes, one direct and the other ad sectum, of all mortgages recorded in his office. . . .”

Whether the words of a statute are to be interpreted as mandatory or merely directory, depends upon whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form: Norwegian Street, 81 Pa. 349. A direction contained in a statute, though couched as in permissive language, will not be construed as leaving the acceptance optional, where the good sense of the entire enactment requires its provisions to be deemed compulsory. The intention is to be judged by the purpose of the statute: Carbaugh v. Sanders, 13 Pa. Superior Ct. 361. The words "shall be lawful” though permissive in form, are to be construed as directory or mandatory, according as the circumstances in each case show the intention of the legislature to be: Com. v. Marshall, 3 W. N. C. 182.

Generahy the words of a statute are to be construed according to their popular and ordinary acceptation, and not necessarily according to the strict rules of etymology and grammar: Schuylkill Bridge Co. v. Frailey, 13 S. & R. 422; Penna. R. R. Co. v. Price, 96 Pa. 256; Fidelity Ins., etc., Co. v. Scranton, 102 Pa. 387; Com. v. Forrest, 170 Pa. 40.

Ordinarily the word "shall” in a statute is mandatory, and while it may be construed to read “may,” when absolutely necessary to prevent injustice and mischief, or be construed as directory so that it will not interfere with the vested rights, or conflict with the proper exercise of power by either of the fundamental branches of government, such construction will not be adopted where it would do violence to the intent and meaning of the statute, which is clearly within the scope of the legislative authority even though it is unusual in its terms.

Section 27 of the act of 1901 was evidently deemed by the legislature as an important provision of the general enactment in order to protect the rights of subsequent purchasers of real estate, in cases where the property had been made the subject of a tax lien or municipal claim, and the provision requiring that a locality index shall be kept by the prothonotary is of no greater but of just as much significance as the provisions in sec. 26, in requiring the claim, verdict and judgment to be docketed in the mechanic’s lien docket and in the judgment index of the court. With the propriety of such requirement we are not concerned and are limited to giving a reasonable interpretation of the enactment by the legislature.

As was said in Lancaster County v. Lancaster City, 160 Pa. 411, “It is not always easy to determine whether a provision is mandatory or only directory, but there are two good rules which are often of much assistance in deciding this question. The first is referred to in Bladen v. Philadelphia, 60 Pa. 464: Where the words are affirmative and relate to the manner in which power or jurisdiction vested in a public office or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may, and often have been construed to be directory.’ See also Pittsburg v. Coursin, 74 Pa. 400; Dewhurst v. Allegheny, 95 Pa. 437; Hershberger v. Pittsburg, 115 Pa. 78; Cusick’s Election, 136 Pa. 459; Potter’s Dwar. St. 222, note 29. The other side of the rule is approved in Norwegian Street, 81 Pa. 349, in the following language: ' There is a class of cases which hold that whether a statute is to be regarded as directory or not, is made to depend upon the employment or failure to employ negative words which import that an act should be done in a particular manner of time and not otherwise.’ Perhaps Lord Mansfield’s rule in Rex v. Loxdale, 1 Burr, 445, is a better one (and this is the second rule we have in view), that, whether a statute is mandatory or not depends on whether the thing directed to be done is the essence of the thing required.

“Every part of a statute should be brought into action in order to collect from the whole one uniform and consistent sense if that may be done, or, in other words, the construction must be made upon the entire statute and not merely upon disjointed parts of it.” Broom’s Leg. Max. 513. “It is the most natural and genuine exposition of a statute,” says Lord Coke, “to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers.” The same rule is to be found in Potter’s Dwarris on Statutes, 144, in this language: “In the construction of a statute every part of it must be viewed in connection with the whole, so as to make all its parts harmonize if practicable and give a sensible and intelligent effect to each. It is not to be presumed that the legislature intended any part of a statute to be without meaning.” See Turnpike Road Co. v. Montgomery County, 228 Pa. 1.

In Erie City v. Willis, 26 Pa. Superior Ct. 459, we held that the neglect of the prothonotary to enter a municipal lien for assessments in the mechanic’s lien docket, and to keep a locality index as required by secs. 26 and 27 of the act of May 16, does not invalidate a municipal lien for assessments for benefits to property as between the parties, nor absolutely bar recovery upon the scire facias issued upon the lien; but we declined to express any opinion in that case upon the effect of these irregularities upon the rights of the plaintiff as against third parties, as that matter was not then before us. This case presents the very question of the rights of a vigilant and innocent third party, and it is determined by the ease of Prouty v. Marshall, 225 Pa. 570, in which the Supreme Court says, “The object of the recording acts is to give notice to the world of that which is spread upon the record. Therefore, the record is constructive notice to all persons, without regard to the fact of actual notice. Under our system, the record is open to every one who desires to ascertain the condition of the title to any piece of real estate, in so far as its ownership is concerned, or as to incumbrances thereon, and every one is bound to take notice of what the record shows, and searchers may rely upon the record as it stands. If it were not so, no one would be safe in purchasing real estate, or in loaning upon the strength of it as security .... the record is notice of just what' it contains, no more and no less. The obligation of seeing that the record of an instrument is correct, must properly rest upon its holder. If he fails to protect himself, the consequence cannot justly be shifted upon an innocent purchaser.”

Applying these frequently repeated rules of the courts co this act of 1901, we have no hesitancy in holding that sec. 27 was deemed by the legislature as an important and necessary part of the whole statute. It is doubtless true that when first brought to the attention of the prothonotaries in the rural counties, it was deemed a novelty. The same surprise is doubtless exhibited at other new legislative requirements, but we are expected to interpret them in the sense in which they are enacted, and to carry their provisions into effect. The prothonotary of Armstrong county would have no trouble in keeping a locality index from the material furnished in the lien entered by him in the mechanic’s lien docket and judgment docket. The lien was filed against “Mrs. Lizzie Clepper, owner or reputed owner, or whoever may be the real owner,” and these designations would suggest indexing it under these three descriptions. The property itself was particularly described as to location and dimension and had the provisions of this act been complied with the appellant would have had no excuse for not finding the lien against the property he was about to purchase.

It is not necessary for us to say what our conclusion would be if the claim had been properly indexed in the mechanic’s lien docket as that question is not properly before us.

The assignment of error is sustained. The judgment is reversed.

Porter dissents.


text:
    Neill v. Hunter, Appellant.

      Contract — Sale—Evidence—Question for jury.

    In an action to recover the price of lumber sold and delivered where there is evidence that the defendant ordered a car load of lumber from a third person whom he thought was in business for himself, and paid such person for the same before delivery, and subsequently such a third person ordered a car load of lumber from plaintiffs and directed it to be delivered and charged to defendant, and thereafter a car load was delivered, but the evidence is conflicting as to whether the lumber was delivered under the first order or the second, the case is for the jury. In such a case a finding by the jury that the lumber was delivered under the first order relieves the defendant from any payment to the plaintiffs.
    Argued May 10, 1910.
    Appeal, No. 105, April T., 1910, by plaintiffs, from judgment of C. P. Beaver Co., June T., 1908, No. 503, on verdict for defendant in case of A. D. Neill and R. A. McDonald, trading as McDonald Lumber Company, v. George S. Hunter.
    Before Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Holt, P. J.
    At the trial it appeared that on November 8, 1906, George S. Hunter, the defendant, purchased a car load of lumber from one V. McDonald, who claimed to be in business for himself, and paid for it; delivery to be made in the future. On April 17, 1907, V. McDonald, claiming to be a lumber broker, gave an order to McDonald Lumber Company for a car load of lumber, the same to be charged to George S. Hunter, defendant, for which he received a commission of $10.00. This order was sent in to McDonald Lumber Company without the knowledge of Hunter and was filled. When the lumber came, Hunter, supposing it to be the lumber he had paid for, caused it to be unloaded. Shortly thereafter he received a bill from the plaintiffs which he repudiated.
    October 10, 1910:
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were various instructions.

      W. S. Moore, for appellants.

      Frank H. Laird, with him J. Rankin Martin, for appellee.
   Opinion by

Henderson, J.,

The question at issue as exhibited by the record brought up was one of fact. If the lumber received by the defendant was that ordered by him through V. McDonald on April 17, 1907, the verdict should have been for the plaintiffs. If on the other hand the lumber was delivered pursuant to the order given November 8, 1906, and the payments were made to McDonald, as claimed by the defendant, the verdict was rightly rendered. There was no contradiction of the defendant’s testimony, that when he gave the order of November 8 to McDonald the latter represented that he was acting for himself in selling the lumber and that the defendant so understood McDonald’s position. On such a state of facts the payments in advance by the defendant to McDonald were a good credit on the bill for the lumber when it was delivered; but if the account sued for was the price of lumber delivered under the order of April 17, 1907, the defendant could not claim credit for such payments. The jury was instructed to this effect in a clear and correct charge. The jury evidently found that the lumber was delivered on the order of November 8, and that there was no partnership at that time between the defendant and Y. McDonald. A verdict for the defendant would necessarily follow from such finding. If the plaintiffs took a transfer from V. McDonald of an order for lumber given to him by the defendant they assumed the risk that McDonald had been paid in advance. We find nothing in the assignments of error which would justify a reversal of the judgment.

It is therefore affirmed.