text:
    Commonwealth to use, Appellant, v. Cashman.

      Partition — Sale of land — Recognizance—Evidence—Declarations.
    Where recognizances in partition have been duly given and the surety approved, the decree of the court operates, as fully as a formal conveyance would do, to divest every interest, share or estate in the land formerly held by the cotenants, and to vest the entire title in severalty in the allottee.
    Where an allottee in partition gives a recognizance to his cotenants to pay the amounts immediately coming to them, and also a recognizance to pay to them the principal of the dower at the death of the widow, and thereafter by an instrument in writing he conveys several acres to a sister, one of the cotenants, in which it is recited that the acres given are to “be as a recompense for the share that she has coming out of said farm as her share,” which the allottee “has to pay,” the paper will be construed so as to cover the whole interest of his sister, including her interest in the dower fund, and parol testimony will not be admitted to show that the share referred to was the share payable to the sister in the first place, and that it did not include her sharé in the widow’s dower.
    In such a case declarations made by the allottee that he owed his sister’s children something, are inadmissible where it appears that they were vague and indefinite, that they were made as the result of efforts to compromise the dispute, and that there was no consideration moving to the allottee for any new promise to pay if the declarations could be regarded as a promise.
    Argued Oct. 28, 1906.
    Appeal, No. 2, Oct. T., 1906, by-plaintiff, from judgment of C. P. Bedford Go.,- April T., 1885, No. 212, on verdict for defendants in case of Commonwealth to use of Charles Barnett, Susan Hoover, Wm. M. Barnett and John M, Barnett, heirs of Ann Barnett, deceased, one of the heirs of Michael Cashman, deceased, v. John B. Cashman and Jacob Biddle.
    Before Rice, P. J., Porter, Henderson, Morrison, 0ready, Head and Bba.ver, JJ.
    Affirmed.
    Scire facias sur recognizance. Before Woods, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) exclusion of the offer of evidence quoted in the opinion of the Superior Court; (5) in giving binding instructions for defendant.

      J. H. Longeneclcer, with him L>. /S'. Brumbaugh, for appellants.
    —The doctrine of accord and satisfaction does not apply: Brockley v. Brockley, 122 Pa. 1; Mechanics’ Bank v. Huston, 11 W. N. C. 389 ; Martin v. Frantz, 127 Pa. 389; Com. to use v. Cummins, 155 Pa. 30; Krauser v. McCurdy, 174 Pa. 174; Hosler v. Hursh, 151 Pa. 415; Rohrer v. Schaefer, 32 Pa. C. C. Rep. 417.

      E. M. Pennell, with him Alvin L. Little, for appellee,
    cited: Centenary M. E. Church v. Clime, 116 Pa. 146; Book v. New Castle Wire Nail Co., 151 Pa. 499.

      February 25, 1907 :
   Opinion by

Head, J.,

Michael Cashman died in 1870, intestate, leaving him to survive a widow, four daughters, of whom Ann Barnett, the plaintiff’s intestate, was one, and one son, John B. Cashman, the defendant. After his death partition proceedings were instituted in the orphans’ court of Bedford county to part and divide the real estate of which he had died seized. As a result of these proceedings the said court, on September 4,1871, entered a final decree allotting the land to John B. Cashman, at his bid, and directing him to enter into a recognizance to secure the payment, within one year, to each of his sisters of her respective share in the two-thirds of the valuation money, and a like recognizance securing the payment annually to the widow during life of the interest on the remaining one-third, and at her death, the principal thereof to the heirs of Daniel Cashman, deceased. The recognizances having been duly given and the surety approved, there can be no doubt the decree of the court operated, as fully as a formal conveyance would have done, to divest every interest, share, or estate in the land formerly held by the cotenants, and to vest the entire title in severalty in the allottee, John B. Cashman. Consequently any mention thereafter made by any one of the recognizees of her share “in the land,” or “coming out of said farm,” or other like expression, would, naturally and necessarily, be understood as a reference to her share of the valuation money, into which the land, so far as they were concerned, had been transmuted by force and effect of the court’s decree.

On February 17, 1873, John B. Cashman of the one part, and Samuel Barnett and wife (she being the sister of John and one of the recognizees already referred to) of the other part, entered into a written agreement by the terms of which Cashman covenanted to convey to Samuel Barnett in fee simjfie a portion of the land the former had acquired by the partition proceeding. The description of the land to be conveyed, the consideration therefor and the maimer of payment were as follows : “ To-wit, about ten acres, more or less, to be measured from the southwest corner of said farm the same to include about four acres woodland. Seven acres of the above mentioned land to be given to the said Barnett and. wife the same to be as a recompense for the share that she (the said Mrs. Barnett) has coming out of said farm as her share, which said John B. Cashman has to pay. The said Barnett to pay for the balance over and above the seven acres above mentioned at the rate of thirty-three dollars an acre.”

A surveyor was procured who ran off a piece of land containing something over thirteen acres. We understand the conveyance called for by the agreement was never made, but we do not regard that as material because it does appear that Barnett and wife took possession of the piece so cut off, made permanent improvements thereon and have ever since remained in the undisturbed occupation and ownership of it.

It is to be observed that at the date of the agreement no part of her share in the valuation money had yet been paid to Ann Barnett by her brother; the whole of it then remained, as it had from the date of the final decree, secured by both of the recognizances then given. Thus matters stood until, the widow having died in 1883 or 1884, this action of scire facias, on the recognizance due at her death, was begun, the writ having issued on March 14, 1885. This promptly brought an affidavit of defense averring in detail the payment of the full share of the plaintiff in the valuation money, secured, inter alia, by the recognizance in suit, by the sale of the real estate as provided in the article of agreement, and the consequent extinguishment of the defendant’s debt. This seems to have suspended any further proceedings during the lifetime of the plaintiff. On June 3, 1904, nearly twenty years after the beginning of the action, her death was suggested, her children substituted as parties plaintiff and the cause pushed to trial. At the conclusion of the trial boLi parties seem to have agreed that the construction of the contract which fixes the rights of both, was purely a question of law for the court. The court so held in affirming the plaintiff’s first point which flatly declared that “ the written contract offered in evidence by the defendant is to be construed exclusively by the court.” If this point correctly stated the law, and we agree with the learned court and counsel that it did, upon what theory can it be successfully contended that the court, erred in rejecting the parol testimony of the witness Barnett? (First assignment) The question asked the witness which was objected to and excluded was as follows: “ Q. I wish you to state whether when this agreement was made in which it is provided that seven acres of land should be paid out of the share of your wife, whether that referred to her share payable in the first place or whether it related to the widow’s dower ? ”

This witness was not privileged either to restate the contract from his own recollection of a transaction that had occurred a quarter of a century before, nor was he competent to take up the written contract and say to what the parties referred or what they sought to express when using the terms they adopted. It was to escape just such dangers that the parties, years before, had taken the precaution to enshrine their meaning and intentions in the enduring form of a sealed instrument of writing. It is not even claimed that the execution of the contract was induced by fraud or that by reason of any accident or mistake anything was omitted from or inserted in it contrary to the intention of the parties. Nor could it well be asserted that the written agreement exhibited any ambiguity, latent or patent. Every word in it would easily be found in the vocabulary from which is coined the everyday speech of ordinarily intelligent people. Under such circumstances the trial judge could do naught else, in discharging the duty imposed exclusively on him, but decline the proffered aid of the witness. The language used by Mr. Justice Mitchell in Book v. Wire Nail Co., 151 Pa. 499, seems peculiarly applicable to the question now before us, and we quote : “ There was no attempt made by defendants to show anjr fraud, accident or mistake in the making of the contract sued upon, nor do we find in the writing any latent ambiguity or uncertainty of subject-matter. Parol evidence was therefore not admissible to vary or control the meaning of the words used, and there was no occasion for the introduction of it to show the circumstances under which the contract was made as explanatory of the meaning of the words. They were ordinary words used in their ordinary sense, and the meaning was to be gathered from the 'writing. To admit the evidence offered would be only to give the jury an opportunity to rewrite the contract.” We have not overlooked the fact that the objection made was aimed rather at the competency of the witness than the admissibility of the evidence; but inasmuch as we approve of the act of the court in rejecting the testimony, the form of the objection which produced that result is immaterial. The first assignment is not sustained.

Nor can we disagree with the construction of the paper adopted by the learned court belo.w. The parties distinctly agreed and clearly stated that the consideration to be paid to the defendant, for seven acres in bulk, was the share of Ann Barnett “ coming out of said farm, which said John B. Cash-man has to pay.” She had but one share, and that was her share in the valuation money. She had formerly but one share in the land, and when money was substituted for land, by the transforming effect of the partition proceeding, her one share remained relatively the same as before. That the money was to be paid at different times, and that each payment wms secured by a separate recognizance, seems to us of no consequence. Had there been but one recognizance to secure the money payable in one year, as well as at the death of the widow, or had there been more than two, each securing payment of an installment, the result would not have been different. The agreement must, in either case, have been construed just as we now construe it. Had it been the understanding of the parties that the sister was only to release or regard as paid that part of her share then due, it would have been most easy to say so. But the paper so plainly declares that she was to give up her entire share for the seven- acres of land that we cannot declare otherwise unless we undertake to rewrite their agreement. The second, fourth and fifth assignments are overruled.

There was evidence that shortly before the trial the defendant Cashman bad admitted to certain people that he owed some money to the heirs of his sister Ann, and would pay them. The declarations are somewhat vague and indefinite; they were made as the result of efforts to compromise the dispute ; there was no consideration moving to Cashman for any new promise to pay if they can be so regarded. Taking' them altogether they seem to have indicated a willingness on his part to open up the entire transaction, and recognize the claim of the plaintiffs to be allowed what would be due on the second recognizance if they in turn would agree to pay for all the land they got above ten acres, which, he insisted, was all'the parties had in- mind when the paper was signed. As nothing resulted from- these attempts to compromise, we are of the opinion that these declarations would not have warranted the court in departing from the well-grounded conclusion that the verdict in the presént case ought to be but a declaration of the rights of the parties, as they themselves had determined them to be, in the instrument of writing solemnly executed a generation ago.

Judgment affirmed.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Mill Creek Borough.

      Boroughs — Incorporation—Inclusion of lands — Acts of April 1, 1863, P. L. 200 and June 26, 1895, P. L. 389.
    A general decree incorporating a borough has the effect of overruling exceptions to the petition for incorporation. It is not necessary for the court to make a formal order granting or refusing a request of a party who seeks to have his land excluded. The decree of incorporation is a legal refusal of such request.
    On an appeal from a decree incorporating a borough, the appellate court will not review the discretion of the lower court in determining questions of fact, unless an abuse of such discretion is distinctly charged and clearly established.
    There is nothing in the legislation relating to the incorporation of boroughs which authorizes the presentation by the parties of requests for findings of fact by the court.
    Argued Oct. 28, 1906.
    Appeal, No. 3, Oct. T., 1906, by T. J. Maley and Eliza H. Green, from order of Q. S. Hunting-don Co., Sept. T., 1905, No. 14, incorporating the Borough of Mill Creek.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed..
    Petition for the incorporation of the borough of Mill Creek.
    The opinion of the Superior Court states the ease.

      Error assigned was the decree of incorporation.

      W. B. Simpson, with him J. R. Simpson, for appellant.

      Thomas F. Bailey, for appellee. •

      February 25, 1907 :
   Opinion by

Porter, J.,

The specifications of error raise no question as to the regularity of the proceedings in the court below ; they all go to the manner in which the learned court below decided the questions of fact and expediency arising in the proceeding. They present three questions, viz: (1) was the petition for incorporation signed by the requisite number of freeholders residing within the territory proposed to be incorporated; (2) does the territory incorporated include but one village- and its properly appurtenant land; and (3) did the court err in entering a decree including within the borough the lands of Eliza H. Green ?

The Act of June 26, 1895, P. L. 389, authorizes the filing of exceptions to any petition for the incorporation of a proposed borough,- and such exceptions are a part of the record proper; but the statute does not require that the court shall make a formal order overruling such exceptions before entering a final decree; the entry of the decree is, in legal effect, an overruling of the exceptions. The Act of April 1, 1863, P. L. 200, empowers the court of quarter sessions, at the request of the party aggrieved, to exclude from the limits of a borough which it is proposed to incorporate, “ lands exclusively used for the purposes of farming, and not properly belonging to the town or village.” This act does not, however, require the court to make a formal order granting or refusing the request of the party, who seeks to have his land excluded, and the entry of a decree including the lands within the limits of the borough, is a legal refusal of the request of the owner that it be excluded. The entry of the decree incorporating the borough, in the present case, overruled the exceptions which had been filed and refused the petition of Eliza H. Green, requesting that her land be excluded.

The exceptions filed in the case and the petition of Eliza H. Green raised the three questions which are now, as hereinbefore stated, presented by the specifications of error. There were thus raised questions of fact which were to be determined upon evidence, and questions of expediency which, were the subject of the discretion of the court below. Upon these questions it was the right of the parties, respectively, to produce evidence, and it was the duty of the court, upon consideration of the evidence, to determine the questions of fact involved. The judgment of the court below was a determination of those questions of fact and expediency against the contention of the appellants. The judge of the court in arriving at that conclusion exercised a discretion with which he was by law invested, and is presumed to have brought to the consideration of the questions presented an unbiased mind and a conscience alive to the importance of the proper discharge of his official duty. The appellate courts will not, in such a case, review the manner in which that discretion is exercised, unless an abuse of discretion is distinctly charged and clearly established: Swoyerville Borough, 12 Pa. Superior Ct. 118 ; Moosic Borough, 12 Pa. Superior Ct. 353; Old Forge Borough, 12 Pa. Superior Ct. 359; Alliance Borough, 19 Pa. Superior Ct. 178; Leetsdale Borough, 25 Pa. Superior Ct. 623.

There is nothing in the legislation relating to the incorporation of boroughs which authorizes the presentation, by the parties, of requests for findings of fact by the court, and such requests filed in this case and the answers of the court thereto, made some time after the final decree had been entered, are not a part of the record proper. We find nothing in the record which would warrant us in holding that the court below had abused the discretion with which it was by law invested.

The order is affirmed and appeal dismissed at costs of the appellants.


author: Portee., J.,

text:
    Commonwealth v. Childs Dining Hall Company, Appellant.

      Taxation — Mercantile tax — Restaurant—License for each establishment — Foreign corporation — Corporation.
    A foreign corporation organized for the purpose of operating restaurants or eating houses, which has complied with all the laws of this state relative to foreign corporations doing business in the commonwealth, is required under the Act of April 10, 1849, P. L. 570, to take out a separate license for each separate establishment which it maintains in a city in this state.
    The Act of April 10, 1849, P. L. 570, in so far as it relates to eating houses, restaurants and oyster sellers, was not repealed by the Act of May 2, 1899, P. L. 184, and is still in force.

      Argued Oct. 11, 1906.
    Appeal, No. 91, Oct. T., 1906, by defendant, from judgment of C. P. No. 1, Pbila. Co., Dec. T., 1906, No. 717, for plaintiff on case stated in suit of Commonwealth v. Childs Dining Hall Company.
    Before Rice, P. J., Pobteb, Hendebson, Mobbison, Oblady and Head, JJ.
    Affirmed.
    Case stated to determine liability for a license tax.
    The opinion of the Superior Court states the case.

      Error assigned was the judgment in favor of the plaintiff.

      Roland T. Morris, of Duane, Morris, Heckseher $ Roberts, for appellant.-
    — The clear intent of the act of 1849 is not only expressed so far as it relates to eating houses, in the opening words of section 20, but is more fully revealed in the subsequent provisions. Thus section 21 provides that all eating houses shall be divided into classes, and then follow these words: “ for the privilege of keeping which the keepers shall each pay .... for the license, etc.”
    Surely no words could be clearer in expressing the intent of the act. It is the personal privilege of keeping eating houses for which he pays and, having paid in accordance with the terms of the act, there is absolutely no limitation on the number of eating houses which he may keep. Then follows section twenty-two classifying not the eating houses but the persons.
    Throughout the whole act is expressed the intent of requiring the payment of one license by one who desires to operate a restaurant or restaurants.

      Ira Jewell Williams, with him Franklin L. Lyle and Hampton L. Carson, attorney general, for appellee.
    — Mercantile License Acts of March 4, 1824, P. L. 32, April 7, 1830, P. L. 387, and May 4, 1841, P. L. 807, expressly provided for a separate license for each store and the provisions of those acts were extended to the eating house act.
    The provisions of a statute may be adopted in another by general reference to such adopted act, and such adoption extends to all such provisions of the original statute as are applicable and appropriate to the adopting statute: Womelsdorf Alley, 8 Pa. C. C. Rep. 207; Lambertson v. Hogan, 2 Pa. 22; Rhines v. Clark, 51 Pa. 96 ; Mudge v. Williamsport, 78 Pa. 158; Union Canal Co. v. O’Brien, 4 Rawle, 358; Heinrich v. Venter, 1 Atl. Repr. 598; Kugler’s App., 55 Pa. 123 ; Schwenke v. Union Depot, etc., Co., 4 Pac. Repr. 905; Stevenson v. Deal, 2 Pars. 212; Lumberman’s Exchange v. Lutz, 2 Pa. Superior Ct. 91; Whitmore v. Muncy Creek Twp., 17 Pa. Superior Ct. 399; Washington County v. Berwick, 56 Pa. 466; Stewart v. Keemle, 4 S. & R. 72; Lancaster County v. Frey, 128 Pa. 593; Chinese Laborers, 13 Fed. Repr. 291; Philadelphia v. Ridge Ave. Pass. Ry. Co., 102 Pa. 190; Knowlton v. Moore, 178 U. S. 41 (20 Sup. Ct. Repr. 747).
    February 25, 1907 :
    The act of 1849 requires that eating houses shall be classed in seven classes for the privilege of keeping which the keepers shall pay. The contemporaneous construction of an act by the officers whose duty it is to enforce it, coupled with long acquiescence by the public, is entitled to weight. The “ chain system” of restaurants has been in vogue in cities of this commonwealth and elsewhere for many years. Of these facts within the knowledge of every member of this court, the court will, of course, take judicial notice. It has been the uniform practice of the auditor general’s department and of the mercantile appraisers through many administrations to require separate eating house licenses for each restaurant, no matter by whom owned, just the same as a separate license has been required from each dealer. No one has questioned this construction of the act until the present case. That this meaning was attached to the statute by the public officials whose duty it was to enforce it is entitled to great weight: U. S. v. Union Pacific Ry. Co., 148 U. S. 562 (13 Sup. Ct. Repr. 724); Commonwealth v. Mann, 168 Pa. 290.
   Opinion by

Portee., J.,

The Childs Dining Hall Company, the appellant, is a corporation organized for the purpose of operating restaurants or eating houses, under the laws of the state of New Jersey. It has complied with all the laws of this state relative to foreign corporations doing business in the commonwealth. The defendant is now the keeper of seven restaurants in the city of Philadelphia, and the question involved in this appeal is whether the corporation is required, under the law of this state to take out one general license as a restaurant keeper, or seven licenses, one for the privilege of keeping each separate eating house.

The Act of April 10, 1849, P. L. 570, in so far as it relates to eating houses, restaurants and oyster cellars, was not repealed by the Act of May 2, 1899, P. L. 184, and is still in force : Commonwealth v. Givin, 21 Pa. Superior Ct. 401; and the liability of the defendant must be determined under the provisions of the first named statute. There can be no doubt that the provisions of the act of 1849, requiring the taking out of a license and the payment of a license fee for the privilege of keeping an eating house involved an exercise of the taxing powers of the commonwealth, and were not a mere police regulation ; the whole scope and purpose of the statute was to raise revenue.

The statute enacted: “ Section 20. That no person shall hereafter keep any beer house, eating house, restaurant or oyster cellar, .... wherein oysters, or other refreshments of any kind whatsoever are dressed, prepared or sold, without first applying for and obtaining a license from the county treasurer of the proper city or county, and for which the keepers thereof shall pay respectively the sum hereinafter provided.” “Section 21. That the said .... eating houses, restaurants and oyster cellars shall be classed by the appraiser or appraisers of mercantile taxes for the city or county in which the same shall be located, in seven classes, for the privilege of keeping which the keepers shall each pay to the treasurer of the proper county, for the use of the commonwealth, .... for the license winch the said treasurer of the proper counties are hereby required to grant.” “ Section 22. That every such person whose annual sales shall be esteemed and taken to amount to the sum of twenty thousand dollars and upwards, shall be classed in the first class, and pay the sum of two hundred dollars.” Then follow like provisions as to the other classes, fixing the amount to be paid for the license, in the respectivé classes, based on thé amount of estimated sales. “ Section 27. Any person convicted of violating the provisions of the preceding sections shall be fined in a sum not less than fifty, nor more than five hundred dollars for each offense, one-half to be paid to the county treasurer for the use of the commonwealth and the other half to the person or persons who shall prosecute such offender.”

The 20th section makes it unlawful to keep any eating house or restaurant without a license, and the 27th section provides a penalty for any violation of this prohibition. The thing which-is here forbidden is not the dressing nor preparation nor sale.of oysters or other refreshments, but it is the keeping of an eating house or restaurant where these things are done, without a license. The keeping of the eating house or restaurant without a license is unlawful. The 21st and 22d sections provide the mode for ascertaining the amount which the keeper of an eating house or restaurant shall pay for the license to keep the same, fix the character of the license and designate the officer by whom the license shall be issued. The mercantile appraiser is required to classify “ the eating houses, restaurants and oyster cellars ” in seven classes, and the keeper of the eating house, restaurant or oyster cellar is required to pay, for the license to keep the same, a sum based on the classification made by the mercantile appraiser. " The tax which the person obtaining the license shall be required to pay is fixed by the sum which the annual sales, of such persons, shall be esteemed and taken to amount to. The “ annual sales ” here referred to manifestly do not mean all sales made by the person who takes the license, whether in that particular business or some other in which he may be engaged, but, taken in connection with the 'context, they can only refer to the sales made through the eating house or restaurant for which the license is obtained. The classification of an eating house or restaurant is based upon the amount at which the mercantile appraiser estimates the sales of the keeper, as keeper of that eating house or restaurant, and the classification of the eating house or restaurant determines the amount which the keeper must pay for his license.

The amount which the eating house keeper pays for his license is not in the nature of an occupation tax, a fixed charge imposed oil all who follow a certain calling; neither is it a general tax upon the particular business of buying and selling food-stuffs, whether prepared or unprepared for immediate use. When the eating houses and restaurants have been properly-classified, the licensee pays according to the classification. What does he pay for? The statute leaves us in no doubt upon this point. First comes the positive requirement that all eating houses and restaurants shall be classified, in seven classes, and then, in the same sentence, immediately follow the words, “ for the privilege of keeping which the keepers shall each pay to the treasurer of the proper county, for the- use of the commonwealth,” and then follows the provision fixing the amount which each class shall pay. “ The privilege of keeping,” the eating house or restaurant so classified, is all that the keeper has paid for and the only right that he acquires by virtue of his license. The tax upon any given eating house or restaurant is determined by the estimated sales of the keeper thereof, made as the keeper of that eating house or restaurant. There is no provision in the statute which limits the number of eating houses or restaurants which any one person or corporation may keep, but if any one person or corporation keeps two or more eating houses or restaurants the license tax must be paid for each separate establishment, according to the classification required by the act of 1849.

The judgment is affirmed.


author: Henderson, J.,

text:
    Latch v. West End Trust Company, Appellant.

      Principal and agent — Investments—Mortgage—Assignments—Fraud.
    Where an agent ,for investing money having entire charge of his principal’s investments and. papers, receives a payment on account of the principal of a mortgage, and invests the same in his own name in another mortgage which he assigns to his principal without informing the latter of the fact, and the assignment is not witnessed or acknowledged, and thereafter the agent assigns the same mortgage to himself and another person as trustees of an estate, and this assignment is witnessed and acknowledged, and both assignments are found amongst the papers of the agent after his death, the first assignment will prevail over the second assignment.
    Argued Oct. 17, 1906.
    Appeal, No. 151, Oct. T., 1906, by defendant, from judgment of-C. P. No. 4, Phila, Co., June T., 1904, No. 1,489, on verdict for plaintiff in case of William Walter Latch,- surviving Executor of Charles Latch, deceased, v. West End Trust Company, substituted Trustee of Henry Bickley, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mortgage.
    Issue to determine the ownership of bond represented by the mortgage.
    At the trial it appeared that the suit was begun by a scire sur mortgage against Anthony Koon, the mortgagor. The heirs of Anthony Koon petitioned the court for leave to pay the amount due on the mortgage into court, alleging that William Walter Latch, executor of Charles Latch, also claimed title to the mortgage. Whereupon the court ordered the amount due on the mortgage to be paid into court, and awarded an issue to be framed and tried between William Walter Latch, executor of Charles Latch, plaintiff, and The West End Trust Company, trustee under the will of Henry Bickley, deceased, defendant, in order to determine who was entitled to the proceeds of the mortgage paid into court.
    Other facts appear by the opinion of the Superior Court.
    At the trial the following offer was made by counsel for the plaintiff :
    Mr. Yeakle: I offer in evidence paper which the plaintiff contends is the assignment of the said mortgage to Charles Latch, signed by Silas Jones, under seal, as trustee for Mabel Davis, under the will of George W. Davis, deceased, together with the marginal note, also signed by Silas Jones. The execution of this paper and the marginal note by Silas Jones is admitted, and also that both the paper and the marginal note are in the handwriting of Silas Jones.
    Mr. Jones: I admit the signing by Mr. Jones of both of these papers, but I object to the introduction of this so-called assignment or document without proof that it,was delivered to Charles Latch, or that some knowledge of the existence of such document came to Charles Latch.
    The Court: I will admit it for the present. The effect of it will hereafter be determined.
    Exception noted for defendant by direction of the court. [3]

      Assignment read by Mr. Yeakle as follows :
    “ I, Silas Jones, trustee of Mable Davis, under will of Geo. W. Davis, dec’d, for the consideration of one thousand dollars to me paid by Chas. Latch, of Lower Mellon, Montgomery Co., Pa., do grant, bargain, assign, transfer and set over unto him, his heirs, executors, adminis. and assigns, a certain mortgage given and executed by Anthony Koon to Geo. W. Davis, dated Oct. 24, 1878. Rec’d in Mtge. Bk. D. H. L. No. 262, page 345, etc., to secure the payt. of one thousand dollars, secured upon a lot of ground southeast side of Ripka Ave. the distance of 90 ft. N. E. of Chestnut street, 21st ward, Phila., in said mortgage particularly described and assigned to me by the executor of Geo. "W. Davis, by assgt. dated April 11,1887, rec’d in Assgt. of Mortge. Bk. No. 62, p. 92, etc. Also the bond and obligation in the sd. mortge. mentioned and all moneys, both principal and interest, due and to become due thereon, together with all rights, revenue, incidents thereto and all my right, title, int., property claim and demand to the same.
    “ Witness my hand and seal Feby. 9, 1896.
    “Silas Jones, [Seal.]
    “ Trustee for Mabel Davis, under the will of George W. Davis, dec’d.”
    (Written on margin) :
    “ Mabel Davis have been paid off in full, this mortgage belonged to me, and having no other investment at the time I put the one thousand dollars which Watson Wilde paid off on his mortgage I invested in this until such times as I could get another mortge. Silas Jones.”
    The court charged in part as follows :
    [If there had been no change in Jones’s relations to that mortgage bj' reason of his investing the money in something else, then because of his having appropriated it for the benefit of Latch and having assumed to hold it for the benefit of Latch, and having executed the paper, which can be regarded as a declaration of trust in favor of Latch, he was disabled, notwithstanding he had a cotrustee, from taking it as a trustee for any estate, and acquiring a good title to it for the benefit of that estate.] [4]

      [He is the only one representing the Bickley estate that seems to have had anything to do with the matter. If the facts are what I have outlined to you, he (Jones) had knowledge that that mortgage was Latch’s mortgage. Mr. Gillin, who apparently trusted him implicitly, did not know that that mortgage, in point of fact, had ever been taken by the Bickley estate until after Silas Jones’s death. If Jones, the active trustee, had knowledge of the fact that this mortgage was held by him in trust for the benefit of the Latch estate, he could not acquire title for the Bickley estate.] [5]
    [He (Jones) had a $1,000 mortgage which appears to have belonged to him, which had been assigned to him by the representatives of some estate. Then he drew up, wrote out himself and signed, what is termed an assignment of that mortgage to Charles Latch, and wrote upon the margin of it what amounts to this, that he took the $1,000 which came to him on account of the Wilde mortgage and put it in that $1,000 mortgage. He said something about intending to make that investment, unless he found something better. That assignment of the mortgage was found among his papers after bis death, and was turned over to the Latch estate, along, as I understand it, with the other papers which belonged to that estate.] [6]
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (3) rulings on evidence, quoting the bill of exceptions ; (4-6) above instructions, quoting them.

      Gr. Von Phul Jones, for appellant.
    — The document under which plaintiff claims is not an assignment: Googe v. Gaskill, 18 Pa. Superior Ct. 39; Slaymaker v. Herr, 12 Lancaster Law Rev. 342; Hays v. Lynn, 7 Watts, 524; R. R. Co. v. Egbert, 152 Pa. 53 ; Unruh v. Lukens, 166 Pa. 324; Boardman v. Dean, 34 Pa. 252.
    The document under which plaintiff claims is not a declaration of trust: Smith’s Estate, 144 Pa. 428 ; Gaffney’s Est., 146 Pa. 49; Grant v. Levan, 4 Pa. 393 ; Hays v. Quay, 68 Pa. 263; Girard Trust Co. v. Mellor, 156 Pa. 579.
    It was while Jones was acting as agent for Latch and the Latch estate only, and not for the Bickley estate, that the fraud was perpetrated. Such being the case, they cannot visit the fraudulent acts of their agent upon the Biekley estate, who by chance happened to employ their agent at some subsequent time : Hood v. Fahnestock, 8 Watts, 489; Bracken v. Miller, 4 W. & S. 102 ; Martin v. Jackson, 27 Pa. 504 ; Houseman v. Bldg. & Loan Assn., 81 Pa. 256 ; Peabody Bldg. Assn. v. Houseman, 7 W. N. C. 193; Wilson v. Bank, 7 Atl. Repr. 145 ; Barbour v. Wiehle, 19 W. N. C. 469 ; Taylor v. Gitt, 10 Pa. 428; Mott v. Clark, 9 Pa. 399; Mullison’s Est., 68 Pa. 212; Metzgar v. Metzgar, 1 Rawle, 227 ; Pepper v. Cairns, 133 Pa. 114.
    February 25, 1907:
    The Latch estate must suffer because it supplied the means for the fraud: Brumbach v. McLean, 187 Pa. 602.

      J. Morris Yeakle, for appellee.
    — When Jones, seventy days before his death, took from himself as trustee for Mabel Davis an assignment of this mortgage to himself and Gillen as co-trustees of the Biekley estate, he had knowledge that that mortgage had seven years before been assigned by himself as trustee for Mahel Davis to Charles Latch, his client. During three years of the time he was a trustee for the Biekley estate he had been collecting the interest on the mortgage and paying it to Charles Latch. That postpones the Biekley assignment to the Latch assignment and gives Latch the fund.
    Jones’s knowledge was notice: Bank of U. S. v. Davis, 2 Hill, 451; Fisher’s Est., 7 Pa. C. C. Rep. 17 ; Distilled Spirits, 78 U. S. 356; Henry v. Raiman, 25 Pa. 354; Leiman’s Est., 32 Maryland, 225; Blatchley v. Osborn, 33 Conn. 226 ; LeNeve v. LeNeve, 2 White & Tudor Lead. Cas. Eq. 35; Chapman v. Chapman, 91 Va. 397 (21 S. E. Repr. 813) ; Myers v. Ross, 40 Tenn. 59 ; Willes v. Greenhill, 4 De Gex, F. & J. 147.
   Opinion bv

Henderson, J.,

The evidence makes it clear that as between Jones and the estate of Charles Latch the Mabel Davis mortgage belonged to the latter. Jones had been for about twenty-eight years the attorney of Latch, attending to all his business, and while so acting made many investments of money for his client; collected interest; reinvested loans and had in his possession papers belonging to his client. No one disputes his ownership of the Mabel Davis mortgage. ‘ The contestants here both claim through, him. It is proved that he collected on the Wilde mortgage $1,000 for Latch, and the memorandum on his assignment as trustee for Mabel Davis to Charles Latch, executed February 9, 1896, contains his written admission that this amount was the consideration for the assignment of the mortgage to Latch. Moreover, the assignment recites the receipt of $1,000 as the consideration therefor. The assignment with other papers belonging to the Latch estate were found among the papers of Jones after his death. The assignment of the mortgage to James J. Gillin and Silas Jones, executors and trustees under the will of Henry Bickley under which the appellant claims, was not made until February 20, 1903. Jones transacted the business with reference to this assignment. Gillin had no knowledge of the particular mortgage, but was told by Jones that he had a good mortgage and wanted the Bickley estate to get it. The assignment was found in Jones’ office in the Bickley safe after Jones’ death. The question whether the document under which the plaintiff claims is an assignment is not open to persuasive discussion. It has all the essential words of an assignment and is under seal. It is not contended by the appellee that the memorandum indorsed thereon transferred the mortgage, or that it is a declaration of trust. It is the history of the transaction, probably made by J ones to show the origin of the fund which was the consideration for the assignment. The paper under which the appellant claims is similar in form to that presented by the appellee, and is no more efficient than the other. It contained an acknowledgment and bore the name of a witness, but these did not make the document more available in transferring the title. The case turns, therefore, on the relation which Jones bore to the two transactions. In the first he transferred as owner to his client. In the second he transferred as trustee to himself and another acting as executors and trustees of the Bickley estate. His cotrustee committed the transaction of the business to him without direction or knowledge as to the particular investment to be made. J ones thus became the medium through which the Bickley assignment was acquired. It is true his knowledge was obtained before he became trustee for the Bickley estate, but it was nearly three years afterward that the assignment was made and in the meantime Jones had been paying to Latch interest on the money he had received from Wilde and which he had invested in the Davis mortgage; during all of which time, of course, he knew that his title to this mortgage had been transferred to Latch. When he undertook to take the mortgage for the Bickley estate he was confronted with the fact of the prior assignment. Whether he acted as principal or agent, therefore, in behalf of the Bickley estate the transaction is tainted with fraud because of this knowledge. As principal he, of course, had knowledge of title in another; as agent his principal was chargeable with notice of anything affecting the validity of the transaction coming to the knowledge of the agent while the proceeding was pending: Johnston v. Laflin, 103 U. S. 800; Columbian Bank’s Estate, 147 Pa. 422. It is argued that any fraud perpetrated was against the Latch estate, inasmuch as Jones did not report to Latch the payment made on the Wilde mortgage. But this omission did the Latch estate no harm. The wrong was done when Jones attempted to make a second sale of the mortgage. The omission of Jones to notify Latch that he had assigned to him the Mable Davis mortgage was unbusinesslike, but as he had other documents of Latch under his control there was no irregularity or impropriety in retaining the assignment in Ms possession with the other papers. There is no evidence that Latch knew the assignment was in Jones’ possession and no neglect is attributable to him. The assignment was not a secret document as suggested by the appellant. If it is to be so considered the Bickley assignment was in like condition, for the papers were both in Jones’ possession, and so far as appears in the case, their existence was not known to any other person than him up to the time of his death. The appellant can only claim through Jones. He was the active executor and trustee. Not a step can be taken without proving that he had authority to make the investment for the Bickley estate. He acted on his own judgment; exercised his own discretion; had the legal authority so to do and took the title in his own name and that of his cotrustee. It is a proposition not to be tolerated that in so doing he could give to the estate of which he was the legal representative a good title to property, the transfer of which would amount to a larceny as against the Latch estate. The evidence admitted was competent and the ease was well decided.

The judgment is affirmed.


text:
    Chaney, Appellant, v. Farmers’ Fire Insurance Company.

      Insurance — Fire insurance — Unconditional and sole ownership.

    A policy of fire insurance on a stock of goods contained a condition that the policy should be void “if the interest of the insured be other than unconditional and sole ownership.” The policy was issued in the name of “ Mrs. H. M. Chaney & Daughter.” The business was conducted under the name of “Mrs. H. M. Chaney & Daughter” who were apparently the owners of the business. Mrs. Chaney applied for the policy and received it from the agent. As a matter of fact the stock and business were owned by H. M. Chaney, the husband and father of the insured. Held, that the condition of the policy as to unconditional ownership precluded a recovery upon it. '
    Argued Oct. 23, 1906.
    Appeal, No. 233, Oct. T., 1905, by plaintiff, from order of C. P. Huntingdon Co., Sept. T., 1905, No. 2, refusing to take off nonsuit in case of H. M. Chaney, trading as Mrs. H. M. Chaney & Daughter, v. Farmers’ Fire Insurance Company of New York.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Woods, P. J.
    The facts are stated in the opinion of the Superior Court.

      JError assigned was the order of the court refusing to take off nonsuit.

      W. M. Henderson, for appellant.
    — We contend that in the absence of inquiry bj^ the defendant or of direction by the plaintiff, or representations made by him or his agent, the policy in suit was and is in a valid form binding upon the defendant, and a subsisting contract between it and H. M. Chaney, the plaintiff. If the insurance should have been written in the name of -H. M. Chaney instead of his business name, then the mistake, if any was made, was the mistake of the defendant’s agent, and was such a one as cannot be taken advantage of by the defendant to the injury of the plaintiff who accepted the policy in good faith: Susquehanna Mut. Fire Ins. Co. v. Cu-sick, 109 Pa. 157; Dowling v. Ins. Co., 168 Pa. 234 ; Barbour v. Wiehle, 116 Pa. 308; Caldwell v. Fire Assn., 177 Pa. 492; Mullen v. Ins. Co., 182 Pa. 150; Meyers v. Ins. Co., 156 Pa. 420; Kister v. Ins. Co., 128 Pa. 553; W. & A. Pipe Lines v. Ins. Co., 145 Pa. 346; Phila. Tool Co. v. Assur. Co., 132 Pa. 236; Grandin v. Ins. Co., 107 Pa. 26.
    February 25, 1907:

      H. H. Waite, with him O. O. Brewster, for appellee.
    — The policy was void: Collins v. Assurance Corp., 165 Pa. 298; Ambrose v. Ins. Co., 19 Pa. Superior Ct. 117; Duda v. Ins. Co., 20 Pa. Superior Ct. 244; Diffenbaugh v. Union Fire Ins. Co., 150 Pa. 270; Rathmell v. Fire Ins. Co., 38 W. N. C. 356 ; Schroedel v. Fire Ins. Co., 158 Pa. 459; Bateman v. Ins. Co., 189 Pa. 465; Finley v. Ins. Co., 30 Pa. 311.
   Opinion by

Henderson, J.,

The policy which was the foundation of the action was issued in the name of Mrs. H. M. Chaney & Daughter. It contained a condition that the policy should be void “ if the interest of the insured be other than unconditional and sole ownership.” Another condition provided that “ This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated therein.” The property insured was in the possession of Mrs. Chaney and her daughter who were conducting the business under the name, “ Mrs. H. M. Chaney & Daughter.” They were apparently the owners of the business. The policy was applied for by Mrs. Chaney and was delivered to her by the agent of the insurance company. The plaintiff did not propose to prove that his interest in the business was made known to the defendant or that the latter had notice that his wife and daughter ivere acting as his agents in the prosecution of the business and in the application for the insurance. The agent of the company was justified in concluding from the manner in which the business was conducted and from the fact that Mrs. Chaney and her daughter applied for the policy that they were the owners of the property to be insured. The defendant did not enter into a contract with the plaintiff and had no reason to believe that he was theowner of the goods insured. A contract of insurance is a personal undertaking. It indemnifies the person insured against loss. The provision of the policy that the ownership of the property shall be truly disclosed is a reasonable one, for the risk assumed may be affected by the character of the owner. The company has a right to know Avith whom it is contracting in order that it may intelligently estimate the risk. It may be willing to insure a mother and daughter when it would decline to insure the same property owned by some other person. It is conceded in the argument that neither Mrs. Chaney nor her daughter had any interest in the property insured. The plaintiff is, therefore, claiming under a policy containing the provision as to ownership referred to where the persons actually insured had no sort of title to the goods. The case is not the same as if a policy had been issued in the trade name of the person owning the business. Where there is nothing in the name or manner of conducting the business to give notice of ownership, the company might reasonably be required to inquire who owned the property, but in this case the policj'- was issued to the individuals in whose name the business Avas conducted who were actually engaged in carrying it on and Avho made application for the insurance. We think the case is not distinguishable from Diffenbaugh v. Union Fire Ins. Co., 150 Pa. 270. In that case a husband insured the property of his Avife in his own name and on the trial offered to prove that he Avas acting as agent for his wife in so doing. The court held that as he did not inform the company that the property belonged to his wife at the time the insurance was taken, he couldmot recover, and that a nonsuit was properly granted. In the cases Avhich most strongly support the appellant’s contention: Shawmut Sugar Refining Co. v. Hampden Mut. Ins. Co., 78 Mass. 540, and Clark et al. v. German Mut. Fire Ins. Co., 7 Missouri Appeal Reports, 77, the applications were made by persons interested in the business and the policies were issued according to the direction of such applicants. We are not called upon to consider a ease where the name in which the business is carried on does not indicate the ownership of the property. It is doubtless true that in many cases no such information would be derived from the business name. Nor are we concerned Avith the question of the mistake or fraud of the agent within the scope of his authority. The plaintiff did not propose to prove that there was any fraud perpetrated upon him or that there was any mistake made by the agent in carrying out the instructions of Mrs. Chaney with reference to the policy. It will be observed, moreover, that there was no offer to prove that the plaintiff had authorized his wife and daughter to procure the insurance. There was an entire lack of offer of evidence that the company contracted or intended to contract with the plaintiff. The case is one, therefore, of an insurance taken out by persons who were not the owners of the property and who did not disclose to the company the fact that they were not such owners. Under these circumstances the condition of the policy as to unconditional ownership precludes a recovery by the plaintiff.

The judgment is, therefore, affirmed.


author: Beaveb, J.,

text:
    Graybill v. Deitrich.

      Judgment — Payment of judgment — Priority of lien.

    A judgment which has been confessed by a father to his son, and subsequently paid in full, and after the payment thereof assigned by the son to his mother without any consideration from the mother to the father, cannot participate in the distribution of the proceeds of a sheriff’s sale of the father’s real estate, to the exclusion of a creditor who had a judgment prior in date to the son’s judgment, but which had lost its priority by reason of a failure to revive in time.

      Appeals — Assignments of error — Exceptions to auditor’s report.

    A single assignment of error to the effect that the court erred in dismissing exceptions to an auditor’s report, where it appears that there were several exceptions, violates Rule XIV.
    Argued Oct. 24, 1906.
    Appeal, No. 81, Oct. T., 1906, by D. K. Light, from order of C. P. Lebanon Co., March T., 1905, No. 99, dismissing exceptions to auditor’s report in case of Michael Graybill to use of D. K. Light v. Cyrus C. Deitrich.
    Before Rice, P.J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Exceptions to report of Frank A. Lehman, Esq.j auditor.

      February , 1907:
    The facts are stated in the opinion of the Superior Court.

      Error assigned was as follows :
    The court erred in dismissing the exceptions of the appellant to the report of the auditor and confirming the same absolutely, as follows :
    “ And now, March 27, 1906, the exceptions to the report of the auditor are dismissed, his report confirmed absolutely and the money ordered to be paid out as therein decreed.”

      E. E. McCurdy, of Gobin McCurdy, for appellant.
    — The judgment was extinguished by payment, and cannot afterwards be restored or kept alive by the parties : Keller v. Leib, 1 P. & W. 220 ; Craft v. Webster, 4 Rawle, 242; Smith v. Pringle, 100 Pa. 275 ; Stout v. Vankirk, 10 N. J. Eq. 78 ; Kuhn v. North, 10 S. & R. 399 ; Simpson v. Mercer, 144 Mass. 413 (11 N. E. Repr. 720) ; Troup v. Wood, 4 Johns. Ch. (N. Y.) 238; Conor v. Hernstein, 29 N. Y. Super. Ct. 552; Booth v. Farmers’, etc., Nat. Bank, 74 N. Y. 228 ; Thompson v. Sankey, 175 Pa. 594; Truscott v. King, 6 N. Y. 147 ; Fleming v. Beaver, 2 Rawle, 128.

      George B. Woomer, for appellee,
    cited: Armington v. Rau, 100 Pa. 165 ; Hogan’s Estate, 181 Pa. 500; Peirce v. Black, 105 Pa. 342; Girard Trust Co. v. Baird, 212 Pa. 41.
   Opinion by

Beaveb, J.,

There are several minor defects in the make-up of the appellant’s paper-book, the most serious of which is the omnibus assignment of error, which is that, “ The court erred in dismissing the exceptions of the appellant to the report of the auditor and confirming the same absolutely as follows : ” quoting the decree. Inasmuch as there were eight separate exceptions, this assignment cannot be regarded as in accordance with our Rule XIY. Inasmuch, however, as the appellee does not complain of it, and indeed specially waived any objection thereto at the argument, and in view of the fact that the statement of the question involved narrows the inquiry to the one question in the case, we content ourselves with the consideration of that phase of the case fairly raised in the assignment of error.

The question, as stated by the appellant, is : “ Whether a judgment which has been confessed by a father to his son and subsequently paid in full, and after the payment thereof assigned by the son to his mother, can participate in the distribution of the proceeds of a sheriff’s sale of real estate, to the exclusion of a junior lien creditor.”

The counter-statement of the question involved, as stated by the appellee, is : “ Whether the holder of a judgment, which was the first lien upon defendant’s real estate, who, by failure to revive, has lost priority, can prevent the participation in the distribution of the proceeds of a sheriff’s sale of real estate and question the validity of a second judgment confessed by the defendant to his son, and subsequently, by agreement of the parties, assigned to defendant’s wife, both the confession and assignment of the second judgment having been made while the first judgment was a prior lien.”

The facts, as found by the auditor, are, that “ The assignment from Charles Deitrich to Louisa Deitrich was, on the other hand, admittedly without consideration. Louisa Deitrich said her husband gave it to her as a present or gift, and Cyrus C. Deitrich frankly corroborates this statement. This assignment was not, however, made until May 5, 1894, after a nol. pros, dated March 7, 1894, had been entered in the above mentioned criminal suit,” (to avoid the possible consequences of which the judgment was originally confessed by the father to the son, based, as the auditor finds, upon a sufficient consideration). At the time of the assignment, Cyrus C. Deitrich had no liabilities other than the Graybill judgment, nor cause to anticipate the incurrence of liabilities. He had paid off his son and had complete control of the judgment. Had he wished, he could have demanded that it be satisfied, but he chose to direct that it be assigned to his wife, which was a privilege he had a perfect right to exercise under the circumstances. Nor was the transaction in anywise fraudulent, for fraud cannot be inferred from a voluntary transfer from husband to wife, unless such transfer be made for the purpose of cheating or hindering creditors.”

1 Upon these facts, the auditor finds, as a conclusion of law, that The existence of the Graybill judgment, a first lien against the defendant’s property, could not in itself, as a liability, have rendered the assignment fraudulent, for the interpretations placed in Pennsylvania upon the statute of 13th Elizabeth, Ch. 5, expressly exclude prior lien creditors as ‘ are, shall, or might be, in any ways disturbed, hindered or defrauded: ’ Byrod’s Appeal, 31 Pa. 241; Nippes’s Appeal, 75 Pa. 472; Haak’s Appeal, 100 Pa. 59. Nor is a prior lien creditor such an interested party as can be heard to contest the right of a judgment creditor, whose judgment is.alleged to be fraudulent: Hogan’s Estate, 181 Pa. 500. The Graybill judgment, being a prior lien in 1903, when the Deitrich judgment was last revived, these decisions apply as well to the revival as to the assignment. It is for his own negligence in failing to revive his judgment that the use plaintiff in this case must suffer.” Distribution is then made, awarding to the Louisa Deitrich and subsequent judgments the entire amount for distribution.

The court below confirms this conclusion of the auditor, upon practically the same grounds.

It is true that the use plaintiff in the Graybill judgment could not, as a prior lien creditor, attack the validity of the assignment of the judgment of the son against the father to the wife and mother, because there was no necessity for so doing, inasmuch as his rights as a lien creditor were not affected, on the principle that the law gives no remedy where there is no wrong to be righted; but, by losing the lien of his judgment, he did not lose his rights as a creditor and, when the lien of his judgment was gone, it was both his interest and his right to be heard in the attack upon the assignment of a judgment which, however good in itself at the time it was confessed, had no validity as against creditors.

In Peirce v. Black, 105 Pa. 342, in which the validity of an assignment of a judgment which had been paid to a party who advanced money to the defendant upon the faith of such assignment was involved, it was held that, as between the parties to such a transaction, the judgment was good, and the defendant could not be heard to deny the validity of his own agreement. But, in delivering the opinion of the court, Mr. Justice Paxsoít said: “ In the case in hand, the defendant did not desire satisfaction of the judgment, when it was paid. He intended to keep it alive for the purpose of obtaining a further loan and, in fact, did obtain $200 from the plaintiff upon the security of the judgment. While this arrangement is of no legal force as to creditors, it is good between the parties. It v was a valid contract between parties capable of contracting, and we are clearly of opinion that the defendant is estopped from alleging the contrary. The plaintiff has advanced his money upon the faith of it, and common honesty requires that the defendant shall be held to his agreement.”

' In Mitchell v. Coombs, 96 Pa. 430; Loverin et al. v. Trust Co., 113 Pa. 6, and Girard Trust Co. v. Baird, 212 Pa. 41, in all of which it was held that “ A mortgage may be kept alive, even after payment in full, if such were the intention of the parties, or if there are interests which require it for their protection,” it was put upon the ground in all of them that there were equities requiring protection which justified it, and that it could not be done as' against interested creditors. In this case there were no equities in the wife to be preserved and the attempt is made to bold the assignment to her good, as against a creditor whose claim was “ in esse ” at the time of the assignment, which, as is clearly indicated in all the cases, cannot be done. True it is that the assignment to the wife at the time it was made as to the Graybill claim was not actually void, but only voidable, but when Graybill, by the loss of the lien of his judgment, assumed the place of an ordinary creditor, he had the undoubted right to attack that assignment as a fraud against the rights which inhered in him as such a creditor.

The wife, to whom the assignment of the judgment was made, does not suffer. She took, subject to the Graybill judgment, the lien of which was in force at the time. The failure to continue the lien did not extinguish Graybill’s rights as a creditor and, therefore, the use party has a right to claim out of the fund for distribution the amount which was awarded to Mrs. Deitrich on her judgment, provided other judgments entitled to priority were fully paid.

The assignee of the Graybill judgment, of course, has no claim as against subsequent judgment creditors, to whom the balance of the fund was distributed, inasmuch as, for aught that appears of record, these judgments were valid and entitled to the priority which the date of their lien gave them. We are clearly of opinion, however, that Mrs. Deitrich had no right to participate in the distribution of the proceeds of the sale of the real estate in the hands of the auditor for distribution, until after the Graybill judgment was paid.

The decree of the court below is, therefore, reversed and the record remitted, with instructions to make distribution in accordance with this opinion.


author: Oblady, J.,

text:
    Ackley, Appellant, v. Bradford Township.

      Practice, C. P. — Judgment for defendant non obstante veredicto— Evidence — Act of April 22, 1905, P. L. 286.
    Where a verdict has been rendered in favor of the plaintiff, the court has no power subsequently to enter judgment for defendant non obstante veredicto under the Act of April 22, 1905, P. L. 286, where there is a conflict of evidence on material facts, or where the plaintiff’s right to recover depends upon not only his own testimony,!but the inferences to be drawn from the facts and circumstances as adduced by other witnesses, or in general where the right to recovery depends upon disputed questions of fact, and the inferences to be drawn from them.

      Negligence — Townships—Roads—Question for jury — Judgment non obstante veredicto.

    In an action against a township to recover damages for personal injuries, it appeared that the cause of the injuries sustained by the plaintiff, as determined by the verdict, was a two-strand fence wire extending across and eleven to thirteen feet above the surface of a public highway on which he was driving. Six years previous to the accident the wire had been so placed by the owner of an oil well to serve as a supporting guy for a structure on one side of the road and made fast to a tree on the opposite side. The plaintiff was engaged in hauling wood on bobsleds, on which there was a flared rack loaded so as to be between six and seven feet high, and fourteen feet long. The roadbed was covered with from one and a half to two feet of snow. In order to examine the lock chains, the plaintiff, who was driving from the top of the load, made fast the lines on the driving seat and went over the top to the rear end of the load and when he started to return to the front he was caught on the upper part of his body by the overhanging wire and thrown to the ground. There was evidence that the local supervisors had worked on the road under this wire every year since it had been so placed; that it was an usual construction in the neighborhood, that some persons had been caught by it, and that others knew of it, and avoided it. Held, (1) that the questions of defendant's negligence and plaintiff's contributory negligence were for the jury; and (2) that it was error to enter judgment for defendant non obstante veredicto.
    The degree of care which is required of road supervisors has no exact legal standard; the law does not impose any liability for every insufficiency of a road, or for every impediment to easy and convenient travel; they are required to do what is practicable to be done, and to preserve a reasonable condition of safety, with reference to the kind of road, its peculiar location, its adjacency to places of peril, and the amount and kind of travel it accommodates. It may be said generally, that they are bound for reasonable and ordinary care according to the circumstances.
    Argued Oct. 24, 1906.
    Appeal, No. 110, Oct. T., 1906, by plaintiff, from judgment of V. P. McKean Co., June T., 1902, No. 136, for defendant non obstante veredicto in case of V. L. Ackley v. Bradford Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beater, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Ormerod, P. J., specially presiding.
    The facts appear by the opinion of the Superior Court.

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

      F. P. Schoonmalcer, with him Sheridan Gorton and T. F. Piehmond, for appellant.
    — The case was for the jury: Rosevere v. Osceola Mills Boro., 169 Pa. 555; Goff v. Phila., 214 Pa. 172; Vanderslice v. Phila., 103 Pa. 102; Rapho Twp. v. Moore, 68 Pa. 404 ; Mooney v. Luzerne Borough, 186 Pa. 161 ; Telephone Co. v. Varnau, 15 Atl. Repr. 624; Plymouth Twp. v. Graver, 125 Pa. 24; McLaughlin v. Corry City, 77 Pa. 109; Kibele v. Phila., 105 Pa. 41; Rumsey v. Phila., 171 Pa. 63 ; Readdy v. Shamokin, 137 Pa. 92; McCue v. Knoxville, 146 Pa. 580 ; Baker v. Gas Co., 157 Pa. 593; Bensing v. Ry. Co., 9 Pa. Superior Ct. 142; Menner v. D. & H. Canal Co., 7 Pa. Superior Ct. 135; Pyne v. R. R. Co., 212 Pa. 143 ; Smith v. R. R. Co., 158 Pa. 82; Cohen v. R. R. Co., 211 Pa. 227 ; Kitler v. St. Ry. Co., 27 Pa. Superior Ct. 602 ; Esher v. R. R. & Mining Co., 28 Pa. Superior Ct. 387.

      February 25, 1907:

      R. B. Stone, witli him B. H. Jack, for appellee.
    — Where the standard of duty is plain, it has always been ruled to be the duty of the court to determine the question of negligence as, a matter .of law, and failure to give, binding instructions has been held to be error: Longenecker v. Penna. R. R. Co., 105 Pa. 328; Leidy v. Cold Storage Co., 180 Pa. 323; Gramlich v. Wurst, 86 Pa. 74; Penna. R. R. Co. v. Fries, 87 Pa. 234 ; King v. Thompson, 87 Pa. 369 ; Goshorn v. Smith, 92 Pa. 435; Baker v. Fehr, 97 Pa. 70; Reading, etc., R. R. Co. v. Ritchie, 102 Pa. 425; Nagle v. Allegheny Valley R. R. Co., 88 Pa. 35; Bannon v. Penna. R. R. Co., 29 Pa. Superior Ct. 231; Jackson Twp. v. Wagner, 127 Pa. 184; Horstick v. Dunkle, 145 Pa. 220 ; Kieffer v. Hummelstown Borough, 151 Pa. 304; Weida v. Hanover Twp., 30 Pa. Superior Ct. 424; McCormick v. Washington Twp., 112 Pa. 185.
   Opinion by

Oblady, J.,

The cause of the injuries sustained by the plaintiff, as determined by the verdict, was a two-strand fence wire extending across, and eleven to thirteen feet above the surface of, a public highway on which he was driving. Six years previous to the accident the wire had been so placed by the owner of an oil well to serve as a supporting guy for a structure on one side of the road and made fast to a tree on the opposite side. The plaintiff was engaged in hauling wood on bobsleds, on which there was a flared rack loaded so as to be between six and seven feet high, and fourteen feet long. The roadbed was covered with from one and a half to two feet of snow. In order to examine the lock chains, the plaintiff, who was driving from the top of the load, made fast the lines on the driving seat and went over the top to the rear end of the load, and when he started to return to the front he was caught on the upper part of his body by the overhanging wire and thrown to the ground.

On the trial the defendant requested the court to charge the jury, inter alia: First, there is no such evidence of actual or constructive notice to the three supervisors, of the obstruction to the highway as would render the township liable for injury to the plaintiff. Sixth, it being conceded that no actual notice was given to the supervisors, they cannot be charged with constructive notice, unless it was so notorious as to be obvious to all who had occasion to pass over the road, and the plaintiff having testified that he passed under this wire four times a day for four to six weeks and in a position when his head would come within four feet of it and he never noticed it, the obstruction was not so notorious as to charge the township with constructive notice. Seventh, that under all the evidence in the case the verdict must be for the defendant. These points were refused by the trial judge, and the question of the sufficiency of the notice to and negligence of the township authorities, and the contributory negligence of the plaintiff were submitted to the jury, resulting in a verdict in favor of the plaintiff. The court subsequently entered judgment for the defendant non obstante veredicto, under the Act of April 22, 1905, P. L. 286, giving as his reason therefor that the above-quoted points should have been affirmed.

The interpretation of the act of 1905 and the reasons for its enactment, as given by the Supreme Court in Dalmas v. Kemble, 215 Pa. 410, are a sufficient answer to the appellant’s' attack upon the constitutionality of this statute. As stated in that case, “ There is no intent in the act to disturb the settled line of distinction between the provinces of the court and the jury. The act is capable of usefulness in allowing tjme for mature consideration, but it should not be carried beyond its legitimate intent. ... If upon such consideration it should appear that a binding instruction for either party would have been proper at the close of the trial, the court may enter judgment later with the same effect. But, on the other hand, if it should appear that there was conflict of evidence on a material fact, or any reason why there could not have been a binding direction then there can be no judgment against the verdict now.”

This act was not intended to substitute the opinion and conclusion of the trial judge, as to matters of fact, for that of a jury of twelve. However indisputable may be the proof, when it depends upon oral testimony it is nevertheless the power of the jury to decide: Reel v. Elder, 62 Pa. 308. It does not follow that because the evidence on one side may be overwhelming in the opinion of the trial judge, that the ease may be, withdrawn from the jury. If there is a conflict of evidence, it must go to the jury, unless the evidence amounts to but a scintilla: Holland v. Kindregan, 155 Pa. 156; Devlin v. Beacon Liglit Co., 198 Pa. 583; Heh v. Gas Company, 201 Pa. 443.

As stated in Kitler v. St. Ry. Co., 27 Pa. Superior Ct. 602: “ It is only when the plaintiff’s testimony may be judicially pronounced unworthy of credit, as in cases of which Hauser v. R. R. Co., 147 Pa. 440, is a type, or is so far overborne by that of his own witnesses that the court could not permit a verdict in his favor to stand, that a nonsuit may be entered or a verdict for the defendant directed: Holden v. R. R. Co., 169 Pa. 1. But this should be clear, beyond question; if there is a doubt, the case is for the jury: Kohler v. R. R. Co., 135 Pa. 346 ; Elston v. R. R. Co., 196 Pa. 595 ; Welsh v. Traction Co., 202 Pa. 530.

The plaintiff’s right to recover depended upon not only 1ns own testimony, but the inferences to be drawn from the facts and circumstances adduced by other witnesses; the character and location of the obstruction, the length of time it had been in place, as well as his conduct at the time of tbe accident in comparison with the conduct and experience of careful drivers under like conditions, ancj therefore it was the exclusive province of the jury to pass upon the credibility .of the witnesses narrating these facts: Bucklin v. Davidson, 155 Pa. 362; Baker v. Gas Co., 157 Pa. 593.

In the opinion filed in support of the judgment non obstante veredicto the learned trial judge makes a critical analysis of the testimony, and reaches the conclusion that the wire was not such an obstruction as the supervisors were bound to take notice of, and that the plaintiff was guilty of contributory negligence, both of which questions necessarily depended upon disputed questions of fact, and the inferences to be drawn from them. While we might agree with the result reached by the trial judge, it is not our province, nor was it his to do so. As stated in his opinion entering judgment, Had he been driving his team sitting on the load, he would not have received the injury. Had he been driving his team standing up, as some witnesses testified was the usual manner, he must have seen the wire before it struck him,” were pertinent arguments for the jury room, but the jury to whom the same questions had been fairly submitted arrived at an opposite conclusion, and the law has fixed that tribunal as the proper one to pass upon disputed facts. It was their special province to reconcile, if possible, the conflicting testimony and determine what the facts were. We cannot say as a matter of law that a wire stretched across a public road at the height this one was fixed, was or was not an obstruction of which the supervisors were bound to take notice. One fixed at six or eight feet would doubtless be a barrier across the highway, while one at twenty feet might not be an apparent obstruction, but at eleven or thirteen feet, as in this case, it was for the jury to say whether the township officers had or ought to have had notice of its location. So also, it was purely a question of fact for the jury to determine whether the plaintiff was guilty of contributory negligence in riding on the top of his load, and that whether he was sitting down or standing up. Such matters are properly referred to the common-sense judgment of jurors rather than be resolved as legal propositions.

The same rule applies to dangerous defects or obstructions in the highway, whether overhead or at grade (Mooney v. Luzerne Borough, 186 Pa. 161), and anything that is allowed to remain above the highway so as to interfere with the ordinary and reasonable use of the highway for travel shows a breach of duty on the part of the municipality. The time necessary to charge a municipality with constructive notice of a defect in the highway is always indefinite, and each case will present its peculiar circumstances so that a decision in one will seldom furnish a precedent J'or another. If the obstruction was one of such long duration as to be generally observable the township would be charged with constructive notice thereof (McLaughlin v. Corry City, 77 Pa. 109), and the local authorities will be presumed to have knowledge or notice of a defect which they might have discovered by the exercise of proper and reasonable diligence : Kibele v. Philadelphia, 105 Pa. 41. It appears to be undisputed that wires over the roadway similarly placed to this one, were quite usual in the neighborhood, and while this fact might require greater vigilance on the part of the plaintiff in looking for such an obstruction, it would as well give to the supervisors added knowlege of their existence and require greater care in protecting the traveling public from their danger: Fritsch v. Allegheny, 91 Pa. 226; Davis v. Corry City, 154 Pa. 598.

The fact that the plaintiff did not see the wire, and that other travelers did notice and avoid it did not necessarily make him guilty of contributory negligence. It would at most be for the consideration of the jury in weighing his testimony. “ Where the facts are disputed, where there is any reasonable doubt as to the inference to be drawn from them, or when the measure of duty is ordinary and reasonable care, and the degree varies according to the circumstances, the question cannot in the nature of the case be considered by the court; it must be submitted to the jury: Gramlich v. Wurst, 86 Pa. 74; Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600 : ” Esher v. R. R. & Mining Co., 28 Pa. Superior Ct. 387. The nature of the obstruction need not be so patent and notorious as to be evident to all passers, but only “ that they might have noticed it if they had consciously seen it:” Rosevere v. Boro, of Osceola Mills, 169 Pa. 555 ; Goff v. Philadelphia, 214 Pa. 172. The local supervisors had worked on the roads under this wire every year since it had been so placed; it was an usual construction in that neighborhood; some persons had been caught by it; others knew of it and avoided it; it could be seen when riding toward it if looking in that direction, — yet many had passed under it a number of times without having seen it; and the supervisors directed its removal after this accident happened.

The degree of care which is required of road supervisors has no exact legal standard; the law does not impose any liability for every insufficiency of a road, or for every impediment to easy and convenient travel; they are required to do what is practicable to be done, and to preserve a reasonable condition of safety, with reference to the kind of road, its peculiar location, its adjacency to places of peril, and the amount and kind of travel it accommodates. It may be said, generally, that they are bound for reasonable and ordinary care according to the circujpstances. The object of a public road is to afford an easy, convenient and reasonably safe means of passage for persons traveling thereon with horses, wagons, etc., and the duty of the supervisors is, as far as practicable, to do what is reasonably necessary to secure that object. They are bound simply to such exercise of common prudence and of ordinary care and diligence as to accomplish that end. The decision of such a question is most appropriately made by submission of it to the practical judgment and experience of a jury upon a consideration of all the proofs respecting it: Plymouth Township v. Graver, 125 Pa. 24; Kitchen v. Union Township, 171 Pa. 145; Cage v. Franklin Township, 11 Pa. Superior Ct. 533; Russell v. Westmoreland County, 26 Pa. Superior Ct. 425.

The court erred in entering judgment non obstante veredicto and the judgment is reversed. The record to be remitted to the court below for its action on the rule for a new trial, ■ which is yet pending and not disposed of.


author: Beaver, J.,

text:
    Garman’s Estate.

      Decedents’ estates — Costs—Auditor.
    Where an auditor is appointed by the orphans’ court to pass upon exceptions and make distribution, and the auditor charges all the expenses of the audit on the estate, the court will not disturb the auditor’s disposition of costs, where there is no way by which it can be determined how much of the expense should be chargeable to distribution, and how much to the disposition of the exceptions.

      Appeals — Executors and administrators — Trusts and trustees — Testamentary trustee.

    Although executors and administrators as such have no right to appeal from a decree distributing the funds in their hands, yet if such a person takes an appeal, not only as administrator d. b. n. c. t. a., but also as testamentary trustee, the appeal may be sustained.

      Decedents’ estates — Auditor—Distribution.
    Where an auditor “is asked to indicate the person to receive the share” of one of the legatees, but no particular person is indicated to him, he cannot be convicted of error in distributing the share to “the trustee appointed, or hereafter to be appointed” of the legatee mentioned.

      Auditor — Findings of fact — Review.
    Where facts have been found, and the discretion of an auditor properly exercised, and his report has been confirmed by the orphans’ court, the appellate court will not interfere.
    Argued. Oct. 25, 1906.
    Appeal, No. 178, Oct. T., 1906, by Cornelius Iiauer, Administrator d. b. n, c, t. a., dismissing exceptions to auditor’s report in Estate of Isaac Garman, deceased.
    February 25, 1907:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of Walter 0. Graeff, Esq., auditor.
    The opinion of the Superior Court states the case.

      Errors assigned were in overruling exceptions to auditor’s report.

      Bassler Boyer, for appellant.

      Robert L. Adams, with him Paul Gr. Adams and J. Gr. Adams, for appellees.
   ' Opinion by

Beaver, J.,

Inasmuch as there is no appeal from the disposition of the exceptions to the account of the appellant in the orphans’ court, we are not called upon to determine whether the'said exceptions, inasmuch as they were dismissed by the auditor, were well founded or not. In view, however, of the fact that the appeal to the Supreme Court was by an administrator from a decree of distribution, and that the appeal was dismissed by the Supreme Court, and in view of the further fact that the exceptants allege that “ The said appeal was manifestly against the interest of the legatees under the will of Isaac Garman,” it would seem as if there had been good ground for the exception relating to the costs of said appeal.

Having been dismissed, however, by the auditor, after careful consideration, the appellant seeks to charge the appellee with the costs of the audit, except so much thereof as relates solely to the question of distribution. The auditor was appointed “ to pass upon exceptions and make distribution of the balance.” There is no way by which we could determine how much of the expense would be chargeable to distribution and how much to the disposition of the exceptions. The auditor was the best judge as to that, and, inasmuch as he charged all the expenses of the audit to the estate, and his disposition of the costs was approved by the court, we accept his disposition of the costs and expenses of audit as proper to be made.

Although the question is not raised distinctly by the appellee, the status of the appellant in this court might be doubtful, inasmuch as executors and administrators, as such, have no right to appeal from a decree distributing the funds in their hands: Stineman’s Appeal, 34 Pa. 394. Inasmuch, however, as the appellant makes his appeal not only as administrator but also as testamentary trustee, under the will of the testator, of Sarah Hauer, he may come within the exceptional cases in which an appeal lies, and it is perhaps meet that the appeal should be disposed of on its merits.

The only other exception is based upon what is called by the appellant a refusal on the part of the .auditor to make a distinct finding to his request that “ The auditor is asked to indicate the person to receive the share of Mrs. Hauer.” The response of the auditor to that request is : “ The remaining two-thirds must be decreed to the legatees and trustee, appointed or hereafter to be appointed, of Sarah Hauer.” So far as the request is concerned, this would seem to be a sufficient answer thereto. What the appellant evidently desired was that the auditor should say that he, as the administrator of Isaac Garman, with the will annexed, was the testamentary trustee of the said Sarah Hauer, under the provisions, of the will of said Isaac Garman, relating to the successor or successors of his executors. If this was his desire, it should have been so indicated in the request. If the appellant is the testamentary trustee of Sarah Hauer, under the will, having the money in his hands, as administrator d. b. n. c. t. a., it is only necessary for him to pay it to himself. If there is any dispute as to the fact of his being the testamentary trustee, it was probably wise on the part of the auditor not to pass upon that question, inasmuch as he was appointed for the purpose of making distribution and may not have had the parties who would be interested in contesting the question as to whether or not the appellant was in fact the testamentary trustee of his wife under the will, legitimately before him. If it becomes necessary to determine that question, the orphans’ court will doubtless do so, upon proper notice to the parties interested.

We see nothing whatever in this case to take it out of the general rule that, where facts have been found and the discretion of an auditor properly exercised, and his report has been confirmed by the orphans’ court, the appellate court will not interfere.

Decree affirmed, and appeal dismissed at the costs of the appellant.