author: Morrison, J.,

text:
    Cecil v. Smith, Appellant.

      Deed — Estate tail — Estate in fee simple — Rule in Shelley’s case.

    Where a husband and wife execute a deed of real estate to a trustee to hold the same for the separate use of the wife for life and after her death in trust for the heirs of the body of the wife by the said husband, naming him, begotten or to be begotten forever, with power in the trustee to sell the land in fee simple, and for such sum as the wife might appoint and direct, the wife takes an estate tail in the land, which by the operation of the Act of April 27, 1855, P. L. 368, vests in her an estate in fee simple; and if her husband dies, and she subsequently remarries and has children by her second husband, such children on her death are entitled to share equally with the children of the first marriage in the real estate in question.
    Argued April 21, 1910.
    Appeal, No. 75, April T., 1910, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1906, on verdict for plaintiff in case of Owen S. Cecil v. John W. Smith.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Ejectment for an undivided interest in the sixth ward of the city of Pittsburg. Before Frazer, P. J.

      The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned among others was in refusing motion for judgment for defendant non obstante veredicto.

      Joseph Forsythe, with him J. F. & E. B. Edmundson, for appellant.
    The statute of uses executed the trust immediately upon the delivery of the deed to the trustee vesting the remainder in the four children, viz.: John, Samuel, Sadie and Hannah Jones, subject to the equitable life estate of their mother, Ann Jones: Wolford v. Morgenthal, 91 Pa. 30, and cases there cited by the court on p. 46; followed by Hague v. Hague, 161 Pa. 643; and see Womrath v. McCormick, 51 Pa. 504, no conveyance being necessary; Bacon’s App., 57 Pa. 504; Kay v. Scates, 37 Pa. 31; Lantz v. Trusler, 37 Pa. 482.
    The power to sell conferred on her even if it had been exercised could not increase her estate: Gross v. Strominger, 178 Pa. 64; Tyson’s Est., 191 Pa. 218.
    The words used, viz.: "for the use of the heirs of the body of the said Ann Jones by the said Enoch Jones begotten” are not nomen collectivum for the whole line of inheritable blood, but descriptio personarum of a particular class, viz.: those begotten by Enoch Jones: Kuntzleman’s App., 136 Pa. 142; Guthrie’s App., 37 Pa. 9.
    The rule in Shelley’s case does not apply: Kuntzleman’s Est., 136 Pa. 142; Shalters v. Ladd, 141 Pa. 349; Dodson v. Ball, 60 Pa. 492.

      Owen S. Cecil, with him Johns McCleave, for appellee.—
    A grant to a woman and the heirs of her body begotten or to be begotten by her present husband vests in her at common law an estate in fee tail special which by virtue of provisions of act of 1855 becomes at once a fee simple estate: Kleppner v. Laverty, 70 Pa. 70; Doebler’s App., 64 Pa. 9; Cockins’s App., 111 Pa. 26; Warn v. Brown, 102 Pa. 347; Criswell’s App., 41 Pa. 288; Elliott v. Pearsoll, 8 W. & S. 38; Paxson v. Lefferts, 3 Rawle, 59; Hileman v. Bouslough, 13 Pa. 344; Schrecongost v. West, 210 Pa. 7; Carter v. McMichael, 10 S. & R. 429.
    October 10, 1910:
   Opinion by

Morrison, J.,

The question here raised is what title did Ann Jones take under the deed dated September 1, 1858, from Enoch Jones and Ann Jones, his wife, of the first part, and Samuel Roberts, Jr., of the second part.

After properly describing the land, to which the title is in dispute, the deed contains the following controlling language, to wit: “Together with all and singular, the buildings and improvements to the same belonging or in any wise appertaining and the reversions and remainders, rents, issues and profits thereof. To have and to hold the said described lot or piece of ground with the appurtenances hereby granted and intended so to be unto the said Samuel Roberts, Jr., his heirs and assigns forever, in trust nevertheless for the uses following and none other, that is to say for the sole and separate use of Ann Jones, wife of the said Enoch Jones, for and during her natural life and so that she alone or such person as she shall appoint shall take and receive the rents, issues and profits thereof and so as her husband, the said Enoch Jones shall not in any wise intermeddle therewith. And from and after the decease of the said Ann Jones, in trust for the heirs of the body of the said Ann Jones by the said Enoch Jones begotten or to be begotten forever, with the power to the said Samuel Roberts, Jr., to sell and convey in fee simple, the whole or any part of the aforesaid premises and appurtenances to any person or persons, and for such sum or sums of money as the said Ann Jones by writing under hand and seal duly acknowledged at any time during her life may appoint and direct,” etc. After making and delivering said deed Enoch Jones died, leaving to survive him a widow, said Ann Jones, and four children begotten by him upon the body of said Ann Jones.

Subsequently Ann Jones married one Owen Jones and at the time of her death left to survive her eight children, four of whom were begotten by Enoch Jones and four by Owen Jones. After the death of Ann Jones on April 28, 1889, her four children begotten by Enoch Jones, conveyed to George F. Schmidt, by deed dated June 10, 1896, the land in dispute. By deed dated April 27, 1905, Edward M. Jones and David G. Jones, two of the four children of Ann Jones begotten by Owen Jones, conveyed their interest in said land as heirs at law of Ann Jones to Owen S. Cecil, the plaintiff here, who thereupon brought this suit in ejectment and recovered, in the court below, a final judgment for the undivided one-fourth of the land in dispute and the defendant, Jno. W. Smith, who had succeeded to the title of George F. Schmidt, appealed to this court. It is conceded that the title of the four children of Enoch Jones and Ann Jones to the land in question had become vested in said John W. Smith, defendant, and that he was in possession of the said land.

If Ann Jones took a fee simple title under the deed of September 1, 1858, then when she died, intestate, the land therein conveyed descended to all of her eight children. But if she only took a life estate, then at her death the defendant contends that her four children begotten by Enoch Jones came into possession of said land as purchasers under said deed. If the former contention is correct, the judgment must be affirmed. But if the latter contention prevails, the judgment must be reversed.

Notwithstanding the able argument of the learned counsel for appellant we are constrained to hold that the learned court below was right in deciding that Ann Jones took a fee simple title under said deed, and, therefore, at her death, intestate, said title descended to her eight children as tenants in common and that her two children begotten by Owen Jones, who conveyed to the plaintiff, inherited from their mother, Ann Jones, the undivided one-fourth of the said land, and, therefore, the judgment in favor of the plaintiff for the same is correct.

We are of the opinion that this case is ruled by Schrecongost v. West, 210 Pa. 7. In that case the court below gave a binding instruction for the defendant on the theory that the deed of October 16, 1858, between Patrick Denny and Mary, his wife, of the first part, and Elizabeth West and her heirs by Samuel West, of the second part, vested a fee simple title in said Elizabeth West. The court below said: “Had this deed been to Elizabeth West for the term of her natural life or for years, and at her death to her heirs begotten upon her by Samuel West, the case would have clearly fallen within the rule in Shelley’s case, but as shown by the above authorities it does not so fall.

“As we view this deed, it conveyed an estate in special tail. It is stated in Blaclcstone, book 2, page 114, that 'where lands and tenements are given to a man and the heirs of his body on Mary his now wife to be begotten, here no issue can inherit but such special issue as is engendered between them two, and therefore it is called special tail.’

“Then comes our Act of assembly of April 27, 1855, P. L. 368, which provides: 'Wherever hereafter any gift, conveyance or demise of an estate in fee tail would be created according to the existing laws of this state, it shall be taken and considered to be an estate in fee simple and as such shall be inheritable and freely alienable.’ This act makes the estate a fee simple in Elizabeth West, the first taker, and in our opinion her deed of October 14, 1899, to Daniel West, gave the better title and the verdict, of the jury should be for the defendant.” The Supreme Court said: “The judgment is affirmed on this charge.” See also Shapley v. Diehl, 203 Pa. 566.

Now in view of the language of the deed in the present case a fee simple title seems to have vested in Ann Jones without reference to the plain power conferred on the trustee to sell and convey a fee simple title. Bu't conceding, for the argument sake, that if that power had been omitted from the deed of September 1, 1858, legal minds might fairly differ upon the question of whether or not a fee simple title was carried by said deed, yet we think the absolute and unqualified power to sell and convey as follows, “with the power to the said Samuel Roberts, Jr., to sell and convey in fee simple the whole or any part of the aforesaid premises and appurtenances to any person or persons, for such sum or sums of money as the said Ann Jones by writing under hand and seal, duly acknowledged at any time during her life may appoint and direct,” clearly removes any doubt that said deed carried a fee simple title. In this connection it is of some consequence to note that said deed does not attempt to control the proceeds of the sale of said real estate in the event of the trustee, upon the request of Ann Jones, selling the same. We think the authority granted to the trustee to convey a fee simple title clearly and conclusively indicates that the deed of September 1, 1858, was intended to and did vest in the trustee, and at the death of Enoch Jones, in Ann Jones, a fee simple title.

In the recent case of Hoxie v. Chamberlain, 228 Pa. 31, opinion by Mr. Justice Pottek, the Supreme Court said: “In the third paragraph of his will the testator gave to the plaintiff the same estate which she would have taken as his only child and heir at law. It is clear that he intended to give her what amounted to an estate of inheritance. He went on to express a further intent by saying, 'Should the said Mary have no legal issue or heir of her own body at her death, the personal or real property she may die seized of by virtue of this bequest shall revert to and belong to my estate.’ It is necessarily implied by these words that the devisee had power to dispose of the property given to her, for the limitation over to the estate of the testator was only to apply to so much of it as she may die seized of.’ There was no limit placed upon her right to dispose of the property at her own discretion, and therefore the devise amounted to an unqualified gift. A devise with power to give a fee, passes a fee: Brown’s Est., 38 Pa. 289; Church v. Disbrow, 52 Pa. 219; Witmer v. Delone, 225 Pa. 450.

“In so far as any subsequent limitation over was inconsistent with the absolute gift already made, it would be void.”

In Witmer v. Delone, 225 Pa. 450, the Supreme Court said: “Our cases all hold that a devise generally or indefinitely, with power of disposition, carries a fee.”

If the deed of September 1, 1858, only vested a life estate. in the trustee, for the benefit of Ann Jones, then the power contained in the deed to convey a fee simple title could not have been exercised. To hold, as contended by the appellant, that said deed only carried a life estate for Ann Jones and that it vested a fee simple title, as purchasers, in her four children by Enoch Jones would require an utter disregard of the plain language authorizing the trustee to sell and convey a fee simple title. This we do not feel warranted in doing. The law is so plain that when Enoch Jones died the necessity for the continuance of the dry trust in Samuel Roberts, Jr., no longer existed and that it would, as a matter of law, cease and the title vest in Ann Jones, that it hardly seems necessary to cite authorities in support of that proposition. However, we here cite a few of the cases: Megargee v. Naglee et al., 64 Pa. 216; Williams’ Appeals, 83 Pa. 377; Bush’s App., 33 Pa. 85; Kuntzelman’s Est., 136 Pa. 142; see also Wilson v. Heilman, 219 Pa. 237, and Simpson v. Reed, 205 Pa. 53.

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


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Gelston, Appellant, v. Donnon.

      Mortgage — Amicable scire facias — Waiver of service — Confession of judgment — Judgment—Description of property — Affidavit of ownership.

    1. Where a praecipe for an amicable scire facias sur mortgage describes the mortgage by its date, the date when it was recorded, and the book and page of the mortgage book in which it was entered, and there is filed with the praecipe a waiver by the widow and administratrix of the mortgagor of service of the writ, and there is also filed a power to confess judgment, on which judgment is entered, and the land is sold under a levari facias which fully described the land, the judgment cannot be attacked as against the land because no scire facias actually issued, and no description of the land was filed in the case. Wilson v. McCullough, 19 Pa. 77, distinguished.
    2. An omission to file an affidavit of ownership with a prsecipe for a scire facias sur mortgage, as provided by the Act of July 9, 1901, P. L. 614, as amended by the Act of April 23, 1903, P. L. 261, does not render a judgment entered in the case invalid as against the land. The effect of the omission is that the heirs may make any available defense against the purchaser of the land at sheriff’s sale, that they might have set up on the trial of the scire facias in case they had been made parties to that proceeding in the manner prescribed by the act.
    3. Where the widow and administratrix of a mortgagor confesses judgment to an amicable scire facias sur mortgage, a purchaser after a sheriff’s sale in the proceedings is not affected by any misrepresentations that the administratrix had made in her application for letters of administration as to the decedent leaving no children, in the absence of evidence that the purchaser was in some way a party to the representations and knew this to be untrue.
    Argued. April 22, 1910.
    Appeal, No. 96, April T., 1910, by plaintiffs, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1906, No. 178, on verdict for defendant in case of Thomas P. Gelston and Annie V. Smith v. John T. Donnon.
    Before Bice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Ejectment for land in the nineteenth ward of the city of Pittsburg. Before Kennedy, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiffs appealed.

      Error assigned among others was in giving binding instructions for defendant.

      Morton Hunter, for appellants.
    This case is ruled by Wilson v. McCullough, 19 Pa. 77. See also Brundred v. Egbert, 164 Pa. 615; Wheelock v. Harding, 4 Pa. Superior Ct. 21.
    October 10, 1910:
    When the land is the rem of the case to which the jurisdiction attaches it must certainly be somewhere fully described in the records of the court: Prouty v. Marshall, 36 Pa. Superior Ct. 527; Lancaster v. Smith, 67 Pa. 427.
    The record of the mortgage forms no part of the record of the sci. fa. sur mortgage: Hartman v. Ogborn, 54 Pa. 120.
    The requirement that an affidavit of ownership be filed with the praecipe is jurisdictional: Park Bros. & Co. v. Boiler Works, 204 Pa. 453; Excelsior Saving Fund v. Cochran, 220 Pa. 634; Suter v. Findley, 5 Pa. Superior Ct. 163; Barrell v. Adams, 26 Pa. Superior Ct. 635; Uhler v. Moses, 200 Pa. 498.
    The plaintiffs also contended that the defendant’s acquisition of title was fraudulent and a nullity as respects the plaintiffs. It is assigned for error that the court did not submit this question to the jury: McGranighan v. McGranighan, 185 Pa. 340.

      Arthur B. McBride, for appellee,
    cited: Burdick v. Norris, 2 Watts, 28; Morris v. Buckley, 11 S. & R. 168; Inman v. Kutz, 10 Watts, 90; Harper v. Bank, 7 W. & S. 204.
   Opinion by

Rice, P. J.,

In 1904 Thomas Peter Gelston, otherwise called Peter Gelston, died intestate, seized of the lot of land in controversy, and left to survive him Mary A. Gelston, his widow, and Thomas P. Gelston and Annie Y. Smith, children of a deceased son of Thomas Peter Gelston and a former wife. On December 8, 1892, the decedent had executed and delivered to Joseph Fawell a mortgage for $300 ■ upon the property, which was duly recorded. Letters of administration upon the decedent’s estate were issued to the widow. On January 19, 1906, the mortgagee filed a praecipe for “amicable sci. fa. sur mortgage of Peter Gelston now deceased,” describing the mortgage by its date, the date when it was recorded, and the book and page of the mortgage book in which it was entered. With this praecipe were filed, as parts of the same paper, the affidavit of the mortgagee’s agent that the whole amount of the mortgage with interest from June 8, 1898, was due and unpaid, and the following signed by Mary A. Gelston as widow and administratrix of the decedent: “And now, to wit, January 19, 1906, I, Mary A. Gelston, widow and administratrix of Peter Gelston, deceased, defendant, do waive service of the writ by sheriff and accept service of the same as if it had been regularly served and do hereby appear and confess judgment against myself as administratrix aforesaid and against the estate of Peter Gelston, deceased, in the sum of four hundred and fifty-eight and eighty-five one-hundredths dollars and costs of suit, without stay of execution, which execution may issue forthwith, and with release of all errors.” Judgment was entered accordingly, and thereupon a levari facias issued, under which the land was sold by the sheriff and deed made therefor to John T. Donnon, who was afterwards made defendant in this action of ejectment. At the time of the institution of the action of scire facias, and of the judgment and sale, the premises were occupied by Mary A. Gelston.

1. It is urged that the land was not bound by the judgment because no scire facias actually issued and no description of the land was filed in the case. But the praecipe and the paper signed by the widow and administratrix must be taken together, and, being so construed, they constituted an agreement for an amicable action and a confession of judgment therein, whereby the actual issuing and service of a scire facias was dispensed with. “The practice of entering an amicable action without writ, is very ancient in Pennsylvania, and very convenient. The issuing of the writ is dispensed with, but it is considered as having been issued, and may be filed at any time:” Morris v. Buckley, 11 S. & R. 168. True, in Wilson v. McCullough, 19 Pa. 77, it was held that there was nothing upon which a valid judgment could be entered, where the praecipe for scire facias contained no description of the land or mortgage and no writ was issued, counsel for the mortgagor having waived issuance and service of the writ. The reasoning by which this conclusion is sustained, is that a proceeding upon a mortgage, whether by scire facias actually issued and served, or by amicable action in which actual issuance and service of scire facias are waived, is purely a proceeding in rem and, therefore, the record must contain the materials out of which a formal judgment may be framed that the particular tract covered by the mortgage in suit, or so much thereof as may be necessary, be sold for the payment of a certain sum of money due on the mortgage. In the case cited this essential was entirely lacking. There was nothing in the record to show, or from which it could be ascertained, what mortgage or what land the proceeding related to. As Justice Lowkie said, “The only thing that can be made out of such a judgment, is that something, or, which is the same thing, nothing, is to be sold to pay the debt.” This language would be entirely inappropriate in describing the judgment upon which the levari facias issued for the sale of the premises involved in this ejectment. Properly interpreted, as it may be with absolute certainty, it was a judgment that the mortgagee have execution to sell the land covered by the mortgage of Peter Gelston to him, which was fully described by its date and the date, book and page of its record in the proper county office. And it is to be noticed, as a pertinent circumstance, although not in itself conclusive, that the levari facias fully described the land: Burdick v. Norris, 2 Watts, 28. It is true the record referred to in the prsecipe is not a record of the court. But, as pointed out by Judge Conyngham, in Sanderson v. Phinney, 2 Walk. 526, s. c., 4 Luz. Leg. Obs. 246, the reference in the amicable action was to a known and ascertained record which every one understands and was notice to all the world of the mortgage and, consequently, of the land described in it. He further shows that if at the time of entering judgment the plaintiff had moved the court for leave to file the description, in order to enter the judgment in technical form and language, the court would have made such an order without hesitation, by way of amendment. “It was a proper subject for amendment, as it was a mere description of that which the parties, by their agreement in writing, made certain; id certum est quod certum reddi potest.” Being a matter amendable as of course, with sufficient matter on the record to amend by, the learned judge held it proper to look upon the thing as if actually done. In distinguishing the case of Wilson v. McCullough from the case under consideration, Judge Conyngham said: “So far as we can understand the facts set forth by the reporter, there was nothing in the record there to identify 'any mortgage, nothing found in the record itself upon which the court could have been asked to amend; nothing in the record by which that which was uncertain could be made certain.” This language is equally appropriate to distinguish it from the case before us. We cannot cite the case of Sanderson v. Phinney as a binding authority, but the decision was rendered by a judge whose opinions have always carried great. weight, and the reasoning of the opinion seems to us conclusive against the appellants’ proposition now under consideration.

2. It is further urged that the plaintiffs’ interest in the land was not bound by the judgment on the mortgage, and the sale thereunder was ineffective to convey the same, because no affidavit was filed at the institution of the proceeding as to who were the real owners of the land and because the plaintiffs were not made parties. In considering this objection it is to be observed that it is not disputed that the whole amount for which judgment was entered on the scire facias was due and unpaid, and it is not suggested that the plaintiffs have any defense of any kind to the mortgage that would have been available to them upon the trial of the scire facias. The Act of January 12, 1705, 1 Sm. L. 57, which gave the remedy by scire facias, expressly authorized the writ to be issued against the executors or administrators of the mortgagor, and such has been the common practice. Nor is a scire facias upon a mortgage within sec. 34 of the Act of February 24, 1834, P. L. 70, requiring notice to be given to the widow and heirs. “Treating the heirs not as volunteers, but as purchasers and terre-tenants, still it has been repeatedly decided it is unnecessary to make the terre-tenants parties to the proceeding:” Tryon v. Munson, 77 Pa. 250. The circumstance that the terre-tenant became such “after the execution of a mortgage, which was valid in its original concoction, and has been duly recorded, will form no defense whatever, either upon the trial of the scire facias, or that of the ejectment brought against him by the sheriff’s vendee. Nothing short of payment or a release of the mortgage can avail in such a case:” Mather v. Clark, 1 Watts, 491. It is claimed that since the passage of the act of 1901 the rule is different, and that what was recommended as the better practice before is now an indispensable essential to a judgment upon which the mortgaged premises may be sold. Clause 10 of sec. 1 of the Act of July 9, 1901, P. L. 614, as amended by the Act of April 23, 1903, P. L. 261, provides, inter alia, that the plaintiff in any writ of scire facias sur mortgage, or some person on his behalf, shall file with his prsecipe an affidavit setting forth to the best of his knowledge, information and belief who are the real owners of the land charged, and all such persons shall be made parties to the writ, which shall then be served by the sheriff in the manner therein specified. But if the plaintiff, or some person in his behalf, in an affidavit filed shall aver that he does not know and has not been able to ascertain the owners or their addresses, or the names or addresses of some of them, then service upon the persons in possession of the property, or posting in default thereof, and service upon those who can be served, and two returns of nihil habet as to the rest of those named in the writ, shall constitute a full service of such writ. Then follows the proviso, that nothing contained in the act shall in any wise alter or affect the ancient practice of service upon the original mortgagor by two returns of nihil. Upon a careful examination of the statutory provisions to which we have referred, it will be seen, first, that the act of 1705, so far as it authorizes the scire facias to be issued against the executor or administrator of a deceased mortgager, is left in force; secondly, that the act does not declare that the real owners must in every case be made parties to the writ; thirdly, that the act does not in express words declare what shall be the consequences of an omission to file an affidavit setting forth the names of the real owners or averring that they are unknown. The consequences that the legislature intended should follow such omission are to be arrived at by inference, and, in determining what inference is to be drawn, it is to be noticed that the statute gives the requirement no higher importance than the requirement as to specifying the names of the claimants of the lands in an action of ejectment. Again, the ancient practice of service by two returns of nihil is left unaffected, which is entirely inconsistent with the idea that the whole aim and object of the legislature would be defeated if it be not implied that the omission to file the affidavit renders the judgment a nullity. It is still further to be noticed that the statute contains no negative words; that is to say, it does not declare that no judgment shall be entered in a scire facias sur mortgage unless the affidavit be filed with the prsecipe, which would have been the plain and simple method, and the one naturally suggesting itself to the mind of the legislature, if it had intended the consequence of noncompliance with the provision to be what the appellants’ counsel claims. We agree with him that the omission to file the affidavit and to make the persons therein named parties to the writ, is not a mere irregularity which is of no material importance and cannot be taken advantage of by the heirs in an action of ejectment between them and the purchaser at the sheriff’s sale. The directions of the statute cannot be disregarded without loss of the advantages that compliance with them would give the purchaser at the sale. But the statutory provisions can be given effect by holding that, if they be not complied with, the heirs may make any available defense against the purchaser of the land at sheriff’s sale that they might have set up on the trial of the scire facias in case they had been made parties to that proceeding in the manner prescribed. We cannot, however, bring our minds to the conclusion that the inevitable consequence is to render the judgment on the scire facias a nullity and to make it inadmissible for any purpose in the action of ejectment.

3. We find no evidence in the case that Fawell, the mortgagee, knew that the plaintiffs were the heirs at law of the mortgagor, or even that he knew of their existence. Nor is there any evidence outside the record, and there is certainly none in the record, that he omitted to file the affidavit with a fraudulent intent to defeat or prejudice the rights of the heirs at law of the mortgagor, whoever they might be. The effect of his omission was to be determined by the court as matter of law; the submission of the question to the jury with instruction that if they found it to be fraudulent would have been unwarranted by the evidence. Nor was there any evidence which would have supported a finding that Donnon, the defendant in the ejectment, procured the sheriff’s sale for the purpose of divesting the title of the heirs of the mortgagor, or that he purchased the land for the use and benefit of Mary A. Gelston, the widow and administratrix. Whatever title he acquired, he acquired in his own right and free from any trust in favor of her. Hence any representation that she made in her application for letters of administration could not affect him, in the absence of evidence that he was in some way a party to the representation and knew it to be untrue; and there is no such evidence. It is true he was the son of Mary A. Gelston, and one of the sureties on her bond, but these facts are insufficient to make him responsible for the representation she made in her application, that the decedent left no heirs. The only-other facts that need be noticed in connection with the allegation of fraud are: that the property was struck down ■ at the sheriff’s sale to the attorney of Fawell, the mortgagee, for costs; that by his direction the sheriff made the deed to Donnon, the latter paying the costs, the interest then due on the mortgage debt, and giving to Fawell a new mortgage for $300; that Donnon’s motive in buying the property was to provide a home for his mother; and that from that time until her death he permitted her to occupy the premises. We think it must be apparent from the foregoing recital, without further discussion, that the court would not have been warranted in submitting to the jury the question whether the defendant acquired the deed under which he claims by fraud.

All of the assignments are overruled and the judgment is affirmed.


author: Henderson, J.,

text:
    Pittsburg, Appellant, v. Calvary Cemetery Association.

      Taxation — Exemption—Burial grounds — Constitutional law — Special legislation — Classification.
    1. Section 5 of the Act of June 4, 1901, P. L. 364, as amended by the Act of March 19,1903, P. L. 41, exempting from taxation “places of burial not used or held for private or corporate profit,” does not contravene sec. 7 of art. Ill of the constitution, which prohibits the general assembly from passing any local or special law exempting property from taxation; neither does the act contravene sees. 1 and 2 of art. IX of the constitution relating to uniformity of taxation.
    2. Places of burial not used for private or corporate profit are exempt from liability for assessments for paving a roadway.
    Argued April 22, 1910.
    Appeal, No. 104, April T., 1910, by plaintiff, from order of C. P. No. 3, Allegheny Co., Aug. T., 1907, M. L. D. No. 3, discharging rule for judgment for want of a sufficient affidavit of defense in case of City of Pittsburg v. Calvary Cemetery Association.
    October 10, 1910:
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beayer and Porter, JJ.
    Affirmed.
    Scire facias sur municipal lien for paving roadway. Before Kennedy, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      Lee C. Beatty, with him Charles A. O’Brien and James B. Drew, for appellants.
    The act exempting appellee’s property from special assessment violates art. III, sec. 7, of the constitution of Pennsylvania: Washington Ave., 69 Pa. 352; Harrisburg v. McPherran, 14 Pa. Superior Ct. 473; Chicago Union Traction Co. v. Chicago, 204 Ill. 363; Pittsburg v. Newell, 223 Pa. 420; Reading City v. O’Reilly, 169 Pa. 366; Vulcanite Portland Cement Co. v. Allison, 220 Pa. 382; Vulcanite Paving Co. v. Phila. Rapid Transit Co., 220 Pa. 603; Lumber Co. v. Carnegie Institute, 225 Pa. 486; Evans v. Phillipi, 117 Pa. 226.
    The act of 1901 and 1903, also violates art. IX, secs. 1 and 2, of the constitution: Broad Street, 165 Pa. 475; New Castle City v. Stone Church Graveyard, 172 Pa. 86; Phila. v. Union Burial Ground Society, 178 Pa. 533; Phila. v. Franklin Cemetery, 2 Pa. Superior Ct. 569.

      Hermann L. Hegner, John C. Thompson and Waller son & Reid, for appellee.
   Opinion by

Henderson, J.,

It is conceded that sec. 5 of the Act of June 4,1901, P. L. 364, as amended by the Act of March 19,1903, P. L. 41, by its terms exempts the property of the defendant corporation from liability for the municipal claim which the plaintiff seeks to recover. It expressly exempts from such a claim actual places of religious worship, places of burial not used or held for private or corporate profit and institutions of purely public charity. As the claim which the plaintiff presses is for paving the roadway the exception in the section as to sewer and footway claims is unimportant. The appellant’s burden is to show that this section is unconstitutional. It was decided in Broad Street, 165 Pa. 475, that art. IX of the constitution providing for the exemption of certain classes of property from taxation related to the general public contributions levied and collected by the state or by its agencies for general governmental purposes as distinguished from special assessments imposed on property within limited areas for the payment of local improvements. This was followed by New Castle v. Jackson, 172 Pa. 86, and Philadelphia v. Burial Ground Society, 178 Pa. 534. As there was no statutory exemption at the time these decisions were rendered the claims sued for were sustained. These decisions doubtless led to the enactment of sec. 5 of the act of 1901. The appellant contends that the act violates sec. 7 of art. III of the constitution which prohibits the general assembly from passing any local or special law exempting property from taxation. The argument is that municipal claims are a species of taxation; that the Act of May 16, 1891, P. L. 75, as amended by the Act of April 28, 1899, P. L. 100, under which the claim was filed, makes the property benefited by the improvement liable according to the benefits, and that the act of 1903 by excepting from the operation of the act of 1901 places of religious worship, places of burial not held for profit and institutions of public charity has made a particular class of property and therefore has legislated specially in favor of that class. The general class is the "property benefited” and the exclusion of any species of property from this classification renders the law special. The appellant admits, however, that classification for the purpose of taxation is proper and the important question in this connection is whether the exempted property is not a class reasonably within the meaning of the decisions. That it is so made in the constitution cannot be doubted. For reasons generally recognized, churches, burying grounds and public charities of the kinds designated in the constitution and in the statute under consideration are regarded as institutions worthy of the fostering care of the law. They produce no income; they have no means of maintenance except the contributions of the charitable, and their object is one of pure benevolence or necessity. The property of such corporations is not ordinarily in the market for sale and is not benefited in the same sense as is private property by such municipal improvements as paved cartways. Such property could truthfully be regarded as property not benefited by such improvements. The. power to classify for purposes of taxation has existed under all of the constitutions of the state and has been exercised in the enactment of many statutes. Land has been classified as seated and unseated, as manufactories, mills, ferries, houses, lands, ground rents, etc. Personal property has been classified as mortgages, money at interest, stocks, watches, horses, cattle, carriages, etc. Occupations and professions have been classified for taxation, as have also single men. The present constitution recognizes this in providing that all taxes shall be uniform on the same class of subjects. It does not undertake to declare, however, what the subjects shall be. That is a matter for the judgment of the legislature, and when it designates a class exhibiting peculiarities which clearly and necessarily distinguish it from other property such classification is not forbidden by any law. The exemption in sec. 5 of the act of 1901 applies throughout the commonwealth and covers all of the property therein described in every proceeding for charging that kind of property with the cost of paving a street in a borough or city. This is neither local nor special legislation as we regard it. It is further urged that the act violates secs. 1 and 2 of art. IX of the constitution, but these sections do not apply to the kind of charge which the appellant undertakes to make. As has already been noticed this constitutional provision only applies to ordinary taxation for the maintenance of goyernment. It neither permits nor forbids the enactment of a law exempting real estate from assessments for local municipal improvements. If the exempted property is a proper subject of classification no place remains for the argument that there is an inequality of taxation, for the property is taken out of the lists of things liable to assessment. All of the property made liable is equably charged. We regard it as within the power of the legislature to make the classification declared in the constitution and the statute, and to relieve the particular class of property from the burden of the cost of improvement of the character made by the appellant.

The judgment is therefore affirmed.


author: Head, J.,

text:
    McKay v. Meyer Jonasson & Company, Incorporated, Appellant.

      Equity — Findings of fact — Trade fixtures — Elevator.
    1. Where the tenant of a four story building for a number of years takes out the elevator and closes up permanently the openings thereof, and subsequently installs a new elevator in connection with a new staircase and skylights, and these changes effect a condition of the building substantially different from its former one, and the lease forbids the removal of improvements made by the lessee, the new elevator installed by the lessee is a fixture which he will not be permitted to remove at the end of his lease.
    2. In determining whether an improvement placed by a tenant in a leased building is or is not a trade fixture, it is not the character of the physical connection with the realty which constitutes the criterion of annexation, but it is the intention of the tenant at the time he makes the addition to the property.
    Argued April 25, 1910.
    Appeal, No. 122, April T., 1910, by defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1909, No. 935, on bill in equity in case of Anna E. McKay v. Meyer Jonasson & Company, Incorporated.
    Before Rice, P. J., Henderson, Morrison, Ordady, Head, Beaver and Porter, JJ.
    Affirmed.

      Bill in equity for an injunction. Before Frazer, P. J. The facts are stated in the opinion of the Superior Court.

      Error assigned was decree awarding an injunction.

      S. Leo Buslander, with him Weil & Thorp, for appellant.
    The elevator in question is a trade fixture: Fox v. Lynch, 64 Atl. Repr. 439; Cook & Co. v. Folsom, 2 Lanc. L. R. 185; Seeger v. Pettit, 77 Pa. 437; Radey v. McCurdy, 209 Pa. 306; Stopper v. Kantner, 29 Pa. Superior Ct. 48; Donnelly v. Frick, 207 Pa. 597; Hanrahan v. O’Reilly, 102 Mass. 201; Ombony v. Jones, 19 N. Y. 234; Wall v. Hinds, 70 Mass. 256; Montello Brick Co. v. Trexler, 167 Fed. Repr. 482; Baker v. McClung, 198 Ill. 28.
    The elevator in question, being a trade fixture, can be removed by appellant irrespective of the clause of the lease which provides that the lessee shall not remove, destroy or damage in any way improvements made by the lessee or the lessor on the premises without the written consent of said lessor: Hayford v. Wentworth, 97 Me. 347; Wall v. Hinds, 70 Mass. 256; Montello Brick Co. v. Trexler, 167 Fed. Repr. 482; Baker v. McClung, 198 Ill. 28; Hey v. Bruner, 61 Pa. 87; Cook & Co. v. Folsom, 2 Lanc. L. R. 185; Carver v. Gough, 153 Pa. 225; Isman v. Hanscom, 217 Pa. 133; Bishop v. Elliott, 11 Exchequer, 113; Holbrook v. Chamberlin, 116 Mass. 155; Cubbins v. Ayres, 4 Lea (Tenn.), 329; Liebe v. Nicolai, 30 Oregon, 364; Smusch v. Kohn, 49 N. Y. Supp. 176; Fox v. Lynch, 64 Atl. Repr. 439.

      J. M. Shields, for appellee.
    There must be an intention on the part of the tenant to remove the fixtures during his term at the time he placed them upon the property: Straight v. Mahoney, 16 Pa. Superior Ct. 155; Carver v. Gough, 153 Pa. 225; Bank v. North, 160 Pa. 303; Muehling v. Muehling, 181 Pa. 483; Silliman v. Whitmer & Sons, 11 Pa. Superior Ct. 243. The elevator in this ease must be regarded as a substitution for an essential part of the leased premises, and was not removable but was to be regarded as a permanent fixture: Ashby v. Ashby, 59 N. J. Eq. 536; Hay v. Till-yer, 14 Atl. Repr. 18; Pond & Hassey Co. v. O’Connor, 70 Minn. 266; Bovet v. Holzgraft, 5 Tex. Civ. App. 141 (23 S. W. Repr. 1014).
    October 10, 1910:
    The elevator could not have been removed without serious injury to the freehold, and the premises so far as it was concerned would not have been in as good plight and condition after removal as before the annexation. But the parties by their agreement may restrict all rights of removal of trade or other fixtures by the tenant: French v. Mayor, etc., of New York, 16 How. Pr. 220; Simpson Brick Press Co. v. Wormley, 61 Ill. App. 460; Carver v. Gough, 153 Pa. 225; Agnew v. Whitney, 10 Phila. 77; Harris v. Kelly, 13 Atl. Repr. 523.
   Opinion by

Head, J.,

The learned trial judge sitting as a chancellor reached the conclusion that the elevator, which had been installed by the lessees and which they threatened to remove at the expiration of their term, was not a trade fixture removable at their pleasure, but was a permanent addition to or alteration of the leased building intended to remain there after the expiration of the lease. If this conclusion resulted from the application of the correct legal principle to sufficient facts proven, the decree appealed from must be affirmed without regard to the remaining question involved.

There can no longer be any room for doubt as to the legal principle which must control in questions of this nature. In Seeger v. Pettit, 77 Pa. 437, Mr. Justice Paxson said, after referring to a number of earlier cases: “The true rule to be deduced from these authorities is, that it is not the character of the physical connection with the realty which constitutes the criterion of annexation, but it is the intention to annex.” In Straight v. Mahoney, 16 Pa. Superior Ct. 155, our Brother Orlady thus stated the rule: “What fixtures are, is always a mixed question of law and fact. 'In all the recent cases, the true criterion has been held to be, the intention on the part of the tenant to remove the fixtures during his term, at the time he placed them upon the property.’ The intention which thus becomes controlling is not the undisclosed purpose of the actor, but the intention implied and manifested by his acts.” A long line of cases is there cited to support the authority of the rule thus stated.

The learned trial judge fully recognized the existence of this controlling principle, and taking it for his guide he turned his attention to the evidence which tended to throw light on the question of the intention of the parties at the time the elevator was installed. Some of the facts disclosed by this testimony which impressed the learned trial judge may be thus briefly stated. The building which was the subject of the lease was a four story brick building on one of the prominent business streets of the city of Pittsburg, which of course would find its most natural and profitable use as a business building. At the time of the lease it was equipped with a power elevator or lift furnishing communication between the several floors. The new lessees took a long lease, to wit, seven years. Their business was active and growing. They removed entirely the elevator which they found in the building and closed up permanently the openings through the several floors in which it operated. For the first two or three years of their term they seemed to have preferred to conduct their business without substituting anything in its place. When perhaps three years of the term had expired they wrote a letter to the lessor, dated August 17, 1904, in which they declared their desire “to make certain alterations in your building consisting of removing two staircases to different locations and replacing one with a very fine ornamental staircase, also putting two skylights on the first floor and installing a first class Otis electric elevator. We would thank you if you would very kindly give your permission for these alterations at your convenience.” To this request the lessor answered in writing two days later as follows: “I have no objections whatever to the improvements you contemplate making on my building, provided, however, the building is not weakened thereby, etc.” Pursuant to the request and permission above referred to, these “alterations” or “improvements,” as they were respectively designated by the lessees and the lessor, were made and so continued until the lease was about to expire, when the lessees notified the lessor of their intention to remove the elevator and its equipment. To prevent this the present bill was filed and resulted in a permanent decree enjoining the lessees from removing the elevator.

It further appears that the stairways and skylights which were a portion of the same alteration referred to by the lessees in their letter were not to be disturbed. No intention was manifested of interfering with them or doing aught but leaving them as permanent alterations of the building. It is to be observed further that the elevator threatened' to be removed was not entirely an addition to the equipment and facilities of the building, placed there by the lessees, but it was a substitute — a more efficient one doubtless, but still a substitute — for the elevator which had served the building prior to its alteration by the lessees. There was no suggestion of the restoration of the building to the condition that existed when the lease was made. When the new elevator was installed the joists of the several floors had to be cut to provide the necessary openings, and these in turn had to be framed so that no weakness of the floors would result. These openings perhaps could be closed up without any weakening of the building, but it would thus be left in a condition substantially different from its former one.

Taking into consideration then the facts recited, and the further fact that the lease provided that the lessees were not to “remove, destroy or damage in any way improvements made by the lessees on the premises without the written consent of the lessor,” we cannot say that the conclusion reached by the learned trial judge, in so far as it was a conclusion of fact, was not warranted by the testimony. In other words, if this issue were presented in the trial of a common-law action, we could not say, in the face of all of this testimony, that there was nothing to submit to the jury upon which they could properly predicate a finding that when the elevator was installed it was not the intention to remove it. If that be true then the finding of the learned judge below must have the same force and effect here and now as if we were dealing with the verdict in the case supposed. It is not important whether this court would reach the same conclusion on the same testimony as did the learned judge below. It is his function to determine questions of fact or mixed questions of law and fact. It is our function to see that he recognizes and applies correct legal principles and that his conclusions of fact rest upon sufficient supporting testimony. Beyond this we have no right to go.

Viewing the record in this light, we are of opinion that the conclusion reached by the learned judge cannot and ought not to be disturbed. And as this conclusion, under the well-settled legal principles we have referred to, necessarily resulted in the decree complained of, there remains nothing for us to do but to dismiss the appeal.

Decree affirmed.


text:
    Cooper v. Walther, Appellant.

      Contract — Parties—Actions—Consideration.
    1. Where a contract is not made for the benefit of a third person not a party to the contract, and where such person has no interest in the consideration, he cannot maintain an action upon the contract.
    2. In an action on a contract for the construction of a sidewalk it appeared that the defendants were lessees of two contiguous properties, and that the plaintiff had contracted with the owners prior to the date of the leases, and without knowledge by them, to construct sidewalks in front of the two properties. One of the leases, which was the only one referred to in the statement of claim, and the only one offered in evidence, contained this provision: “The lessees further agree to pay for improvements already made or contracted for, or to be made on said property.” The plaintiff had procured some materials for the sidewalk when the defendants refused to permit the work to go on, or to pay for the materials. Held, (1) that as the contract in the lease was not made with the plaintiff, nor for his benefit, and as he had no interest in the consideration, and as no money or property had been placed in the hands of the defendants for his benefit, he could not maintain the action; and (2) that even if he were entitled to recover as a party in interest, he could not recover a judgment under the pleadings for the loss incurred by him on both sidewalks.
    Argued April 26, 1910.
    Appeal, No. 136, April T., 1910, by defendants, from judgment of C. P.. No. 1, Allegheny Co., Sept. T., 1905, No. 821, on verdict for plaintiff in case of W. S. Cooper v. Charles L. Walther and Frederick C. Sauers.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit for breach of a contract. Before Ford, J.
    At the trial the jury returned a verdict for plaintiff for $474.34.
    On a motion for judgment for defendants non obstante veredicto, Ford, J., found the facts to be as follows:
    Mary I. Gates and Annie E. Brown, respectively, owned adjoining lots fronting on Diamond street, in the city of Pittsburg. Each of the lots or pieces of ground had a width on Diamond street of about sixteen feet.
    Under date of June 13, 1904, W. S. Cooper, in writing, proposed to Joseph Painter, agent of Mary I. Gates and Annie E. Brown, to furnish all labor and material, and to erect all ironwork for the support of the sidewalk, also furnish and set sidewalk lights and lay granolithic sidewalk at building to be erected for Mrs. Gates on Diamond street, Pittsburg, according to plans furnished, for the sum of $750. Upon June 23, 1904, the proposal was accepted by Joseph Painter.

      The contract as so entered into was for the construction of a sidewalk along the properties owned respectively by Mary I. Gates and Annie E. Brown.
    By articles of agreement dated July 25, 1904, between Mary I. Gates, therein called the lessor, and Charles L. Walther and Frederick G. Sauer, called the lessees, the lessor let and demised unto the lessees, from October 1, 1904, for a term of years, at a rental therein fixed, all that certain lot situate on the northerly side of Diamond street, at the easterly corner of lot of Annie E. Brown, and extending along the easterly side of Diamond street, 15.92 feet; and it was therein provided that the lessees are to have immediate possession of the lot of ground, and at their own cost and expense are to erect a substantial brick building of at least six stories; and “the lessee further agrees to pay for the improvements already made or contracted for and to be made upon said property.” The plaintiff was not present at the execution of the lease, nor did he have knowledge thereof until later informed by Mr. Painter.
    At the execution of the lease the contract between the plaintiff and Mrs. Gates and Mrs. Brown was mentioned, and defendants agreed to assume the contract and pay for the improvement.
    In pursuance with the contract, plaintiff purchased and had the iron work ready for delivery and installation, and secured workmen to erect and place the material in position and complete the sidewalk. The ironwork was ordered from and manufactured by T. Reisik, for which plaintiff agreed to pay Reisik $370.
    Subsequent to May 25 the plaintiff, being notified by Mr. Painter of the leasing of the property to defendants, and of their assuming the contract, tendered performance to Mr. Sauer, one of the defendants. Mr. Sauer replied that he would accept the material and use it in his design for a new and larger building. Thereafter plaintiff again tendered performance to Mr. Sauer and was informed by Mr. Sauer that he would be unable to use the material, and therefore did not want it and would not pay for it. Plaintiff made no tender to, nor did he have any understanding with, Charles L. Walther, his negotiations being with Mr. Sauer. Upon Mr. Sauer’s refusal to accept the material or permit performance, plaintiff sold the material to Mr. Reisik, receiving a credit of $129 on account, that being, he testified, the fair market value of the material.
    October 10, 1910:
    The verdict of the jury was in the sum of $474.34, of which $208.90, amount paid for material, and the balance, viz.: $265.44, termed profits, was ascertained by deducting from the contract the amount, viz.: $370, agreed to be paid Reisik, together with the cost of material, cement, etc., not purchased, and the cost of labor necessary to place the material and complete the improvement.
    The court overruled the motion for judgment for defendants non obstante veredicto.

      Error assigned was the order of the court.

      U. G. Vogan, with him C. F. Patterson, for appellants,
    cited: Adams v. Kuehn, 119 Pa. 76; Blymire v. Boistle, 6 Watts, 182; Torrens v. Campbell, 74 Pa. 470; Freeman v. R. R. Co., 173 Pa. 274.

      W. S. Maxey, for appellee,
    cited: Blymire v. Boistle, 6 Watts, 182; Adams v. Kuehn, 119 Pa. 76; Hoffa v. Hoffa, 38 Pa. Superior Ct. 356; Delp v. Brewing Co., 123 Pa. 42; Freeman v. R. R. Co., 173 Pa. 274; Bruce v. Howley, 29 Pa. Superior Ct. 169.
   Opinion by

Henderson, J.,

It clearly appears from the statement of claim filed in this case that the action is not brought on account of an, indebtedness of Mary I. Gates and Annie E. Brown for the payment of which money or other valuable thing was placed by them in the hands of the defendant but for damages for a breach of the contract entered into by Joseph Painter, agent for Mrs. Gates and Mrs. Brown, which contract it is alleged the defendants assumed. The plaintiff made a proposal to Mr. Painter to construct a sidewalk in front of two lots on Diamond street in the city of Pittsburg owned respectively by Mrs. Gates and Mrs. Brown which was accepted by Mr. Painter. Before the work was commenced on the ground each of the owners leased her lot to the defendants who as it is alleged in the plaintiff’s statement assumed the contract. At that time neither the owners nor the lessees owed the plaintiff anything, for the work was not then completed, and there is nothing in the evidence to show any right of action in the plaintiff until he had performed the work according to the plans. After the defendants took possession of the premises they declined to permit the plaintiff to proceed with the work; whereupon he brought this action claiming damages to the amount of the money and labor expended in the preparation of material and the profit on his contract. The plaintiff was not a party to the leases, was not present at their execution and did not consent to release the owners of the property from their contract with him and accept the defendants as substitutes. There was not a novation, therefore, or substitution of the defendants in the original contract. Mrs. Gates and Mrs. Brown were still liable to the plaintiff. The defendants had no contract relation with the plaintiff and they rely on the well-known common-law rule that no one can sue on a contract to which he is not a party. This is also the law of this state as will appear by reference to Blymire v. Boistle, 6 Watts, 182; Torrens v. Campbell, 74 Pa. 470; Hostetter v. Hollinger, 117 Pa. 606; Adams v. Kuehn, 119 Pa. 76; Delp v. Brewing Co., 123 Pa. 42, and numerous other cases. Unless the plaintiff has brought himself within the recognized exceptions to the rule pointed out in these cases his action cannot be maintained. These exceptions exist where it can be logically said that the third person although not a party to the contract is a party to the consideration on which it rests. Where this consideration is money or other thing which is placed in the hands of the promisor for the use of the third person, title thereto passes to the latter and the promisor becomes in effect a trustee. Illustrations of these exceptions are seen where the promise to pay a debt to a person not a party to the contract has for its consideration money or property placed in the hands of the promisor for that purpose; also where property is delivered to another to be converted into money and the proceeds thereof applied to the discharge of the obligation of the owner of the property to a third person. All of the cases have for their foundation the fact that money or property had been delivered to the promisor to be used in the payment of a debt due to a third party who becomes thereby entitled to receive the thing turned over for his use or the value thereof. Where, however, the promise is made in relief of one already bound the promise by a third party to discharge the obligation being for the benefit of the original obligor the latter has a right of action to protect himself against the breach of such a promise and the liability of the third party is to him and not to the creditor on the original contract. That the third party should be liable to two actions on the same transaction was said in Kountz v. Holthouse, 85 Pa. 235, to be manifestly unjust. No money was deposited with the defendants to be paid to the plaintiff nor was any property set apart for his use. The contract set up was clearly for the benefit of the owners of the land and not for the advantage of the plaintiff. The defendants were about to erect a building on the leased lots and it was to the interest of the owners that their contract with the plaintiff be taken off their hands. This they undertook to provide for, and the defendants’ inducement to enter into the arrangement was apparently the advantage which would come to them through the use of the sidewalk substructure in connection with the building which they were about to erect. There was no indebtedness of Mrs. Gates and Mrs. Brown for which they provided by placing the property in the defendants’ hands. The plaintiff might never complete his work under the contract. What the lessors desired was to transfer the unexecuted contract from themselves to the defendants. This is a very different transaction from the depositing of money or property in the hands of one who promises to deliver the same to a third person. The liability of the defendants if any exists is for their refusal to accept performance of the contract which the plaintiff entered into with the lessors. It is not for money received by the defendants for the plaintiff’s use. The plaintiff has no interest, - therefore, in the bargain made by the defendants with Mrs. Gates and Mrs. Brown. The authorities relied on to sustain the judgment all show that such an action can only be maintained where one person enters into a contract with another to pay money or to deliver some valuable thing to a third person on whose behalf the contract is made. The plaintiff has failed to show such a relation to the parties and cannot maintain his action.

Another objection to the plaintiff’s action is that it is against the defendants for the breach of the contract as to both of the lots. It does not appear that Mr. Painter had any authority to bind Mrs. Gates for the payment of the cost of the structure to be erected on the premises of Mrs. Brown nor that he had authority to bind Mrs. Brown to the payment of the cost of work to be done on the premises of Mrs. Gates, and the lease from Mrs. Gates to the defendants set forth in the plaintiff’s declaration shows very clearly that what the defendants undertook to do was to take Mrs. Gates’ contract off her hands and not to assume a joint liability of Mrs. Gates and Mrs. Brown. Whatever may have been the understanding of the plaintiff in regard to the title at the time he addressed the letter of June 13, 1904, to Mr. Painter we do not find sufficient evidence in the record to warrant the conclusion that he could recover a joint judgment against Mrs. Gates and Mrs. Brown. It is expressly set forth in the statement of claim that the plaintiff "demanded payment for his contract by virtue of defendants’ assuming to pay the same as set forth in the lease, a copy of which is hereto attached marked exhibit ‘B.’ ” This exhibit is the lease of Mrs. Gates to the defendants; not of Mrs. Gates and Mrs. Brown, and is for one of the lots; not for both, and the undertaking of the lessees was "to pay for the improvements already made or contracted for and to be made upon said property.” It could be well said that any verbal agreement between the agent of Mrs. Gates and Mrs. Brown on the one side and the lessees on the other was reduced to writing which writing expressed the whole agreement of the parties. The lease from Mrs. Brown is not in evidence, but the lease of Mrs. Gates shows that the defendants contracted with the owners severally and not jointly. The first and fourth assignments of error are sustained.

The judgment is reversed.


text:
    Berger v. Berger, Appellant.

      Payment — Assignment of stock — Presumption—Evidence.
    1. Where shares of stock are transferred by a debtor to a creditor, the presumption is that they are assigned as collateral security for the debt, and not as payment thereof.

      Equity — Equity pleading — Responsive answer — Setting up new contract.

    2. An answer responsive to the plaintiff’s bill is conclusive in favor of the defendant unless it is overcome by the satisfactory testimony of two witnesses, or of one witness corroborated by other facts which give it greater weight than the answers, or which are equivalent in weight to two witnesses; but the averment of another subsequent, independent and distinct fact, such as a new and different contract, not stated in the bill is not responsive and therefore not within the rule.
    3. Where a different contract is set up by the defendant in his answer and it is alleged that the new contract superseded the one set up in the bill, the defendant has the affirmative of the issue on the allegation as to the subsequent matters, and must make proof.
    4. Where a bill in equity for the reassignment of stock alleged by the bill to have been pledged as collateral, is met by an answer alleging a later transaction by which the stock originally pledged became vested in the defendant in absolute ownership, the burden is on the defendant to prove the later transaction.

      Evidence — Party dead — Husband and wife.

    5. Where a husband is incompetent to testify because of the death of the other party to the contract, the wife is also incompetent.
    Argued April 26, 1910.
    Appeal, No. 137, April T., 1910, by defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1909, No. 154, on bill in equity in case of Carrie H. Berger, Administratrix of the Estate of Charles A. Berger, deceased, v. William Berger and Homewood Building & Loan Association.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for a reassignment of stock of a building and loan association.
    Haymaker, J., found the facts to be as follows:
    1. We find that Charles A. Berger, the plaintiff’s intestate, in August, 1907, purchased a newspaper route for $2,600; that not having sufficient money to pay for the same, he applied to his father, William Berger, the defendant, for a loan of $2,400, which amount the father procured for him by giving a mortgage on his real estate for that amount, and paid the proceeds thereof to his son, to wit, $2,400; that on September 4, 1907, an agreement was entered into between the father and son whereby the son agreed to repay the father from time to time until this indebtedness of $2,400 and interest should be fully paid and satisfied, and assigned and transferred thereby twenty shares of stock in said, association to the father, and also agreed to assign to him a certain life insurance policy for $1,500, which policy the father was to hold as collateral security for said loan and reassign the same when said indebtedness should be fully paid; that on September 23, 1907, the son, by writing, transferred to the father the same shares of stock, then worth $713; that in January, 1908, the son sold this newspaper route and with the proceeds of this sale paid and discharged the Schmitz mortgage; that about the time of the sale of this route by the son, he borrowed the further sum of $350 from his father, and out of the proceeds of the sale paid the father $200 on account of the loan of $350, leaving a balance due the father of $150.
    2. Charles A. Berger, the son, died February 22, 1908, intestate, and letters of administration on his estate were granted to Carrie H. Berger, his widow and plaintiff in this case, on February 28, 1908. The administratrix tendered payment to William Berger of the amount she believed to be due him, and has been at all times ready and willing to pay the same, upon the transfer and delivery to her of said shares of stock. The estate of Charles A. Berger is indebted to William Berger for the balance of said loan of $350, to wit, $150, with interest from January 1, 1907, and also in the amount paid David S. McCann, Esq., by William Berger, for legal services in relation to the Schmitz mortgage, and recording same, $27.50; and for interest on said mortgage by defendant for his son, $36.00; and the further amount paid by defendant, $55.00, due on the stock, on which several amounts the defendant is entitled to interest to January 4, 1909.
    3. We further find that there is no evidence in the case to prove that the father loaned the son any money other than on the two occasions of which we have spoken, when he gave him $2,400, which the son subsequently repaid by discharging the mortgage and $350, of which the son paid $200 on account.
    4. The defendant made no application to the association, during the lifetime of his son, to have the stock transferred to him on the books of the association, although he claims to have been the absolute owner of the stock for five months prior to the death of his son, during which time the defendant paid the biweekly dues on the stock to the association .and was in possession of the son’s pass book with the association.
    October 10, 1910:
    The court entered a decree directing a reassignment of the stock in controversy.

      Error assigned was the decree of the court.

      F. C. McGirr, of Marrón & McGirr, for appellant.—
    There was no sufficient evidence to sustain plaintiff’s bill: Burke’s App., 99 Pa. 350.
    There was no legal presumption that the assignment was for collateral security only: Cunningham v. Smith, 70 Pa. 450.
    An assignment originally for security, may, by agreement of the parties, be thereafter made absolute: Page v. Burnstine, 3 MacArthur (D. C.), 194.

      J. H. Harrison, for appellee.
    The burden of proof was on the defendant: Coleman v. Ross, 46 Pa. 180; Vollmer’s App., 61 Pa. 118; Naglee’s Est., 52 Pa. 154; Miller v. Walsh, 1 North. 194; Burke’s App., 99 Pa. 350.
    The wife of the appellant was not competent to testify in a contest growing out of a transaction between appellant and a .deceased party: Bitner v. Boone, 128 Pa. 567; Sutherland v. Ross, 140 Pa. 379; Myers v. Litts, 195 Pa. 595.
   Opinion by

Henderson, J.,

If the finding of facts made by the court below can be sustained the decree was appropriately entered and we are not persuaded that the court was in error in this respect. The case does not depend on the uncorroborated evidence of the plaintiff for it is conceded that the assignment of the building and loan association stock was made in the first instance as collateral security for the payment of the loan of $2,400 obtained by the defendant for Charles A. Berger, and it is also admitted that this loan was paid in the lifetime of the decedent. In the absence of evidence that the stock was transferred to the defendant in satisfaction of a loan the assignment is presumed to be collateral security for the debt. The transaction did not amount to payment. It gave to the creditor additional means of making himself whole, but if the stock proved to be valueless the debtor continued liable on his personal obligation: Perit et al. v. Pittsfield et al., 5 Rawle, 166; Stone v. Miller, 16 Pa. 450. There is no evidence that the decedent was indebted to his father for more than the $2,400 at the time the assignment of September 23 was made, and this assignment is consistent with the agreement of September 4, 1907. William Berger recognized the collateral character of the latter document. He did not procure a new certificate of stock for the shares assigned by his son until after the death of the latter, and apparently intended to hold the stock with the relation thereto which the contract of September 4 created. The argument that the answer is not overcome.by the plaintiff’s evidence loses its weight when we consider that the defendant sets up a new contract not pleaded by the appellee and made subsequently to the transaction set forth in the bill. That an answer responsive to the plaintiff’s bill is conclusive in favor of the defendant unless it is overcome by the satisfactory testimony of two witnesses or of one witness corroborated by other facts which give it greater weight than the answer or which are equivalent in weight to two witnesses is well understood, but it is equally well determined that another subsequent, independent and distinct fact not stated in the bill is not responsive and therefore not within the rule. Whatever constitutes a part of the facts stated in the bill the defendant should set out, but while thus becoming a witness for the plaintiff he cannot testify for himself and introduce other facts by way of defense or avoidance. Where a different contract is set up by the defendant and which is alleged to have superseded the one charged by the plaintiff the defendant has the affirmative of the issue on the allegation as to the subsequent matters, and must make proof: Pusey et al. v. Wright et al., 31 Pa. 387; Eaton’s Appeal, 66 Pa. 483. The averment contained in the answer that the defendant Berger bought the stock from his son and paid therefor at a time subsequent to the mattexs set up in the plaintiff’s bill is pleaded by way of defense and avoidance. It is claimed that this later transaction set aside the pledge and vested in Wm. Berger absolute title to the stock. This was a distinct transaction not involved in the case as made up by the plaintiff and one with reference to which the defendant must offer proof if he seek to avail himself of it. It is not a responsive averment within the rule regulating the effect of an answer in equity. The court was not in error, therefore, in holding that there was no proof of other loans by Wm. Berger than $2,400 and $350.

We regard the question of the competency of Mrs. Berger to testify in favor of her husband as settled in Bitner v. Boone, 128 Pa. 567, and Myers v. Litts, 195 Pa. 595. The disability of husband or wife to testify in favor of the other is based in part on the identity of the interests of the husband and wife and in part on considerations of public policy which hold it to be necessary in order to promote the harmony of the domestic relation and the confidence of private life. In any view of the case Mrs. Berger was not competent to testify.

The decree is affirmed.


text:
    Atkins v. Grist, Appellant.

      Husband and wife — Debts of wife — Principal and surety — Judgment—■ Opening judgment.

    1. Formerly the capacity of a married woman to contract was exceptional and her disability general; now the disability is exceptional and her capacity general; the burden is on her when she seeks to avoid her contract to bring it within one of the few exceptions. Since the passage of the Acts of June 3, 1887, P. L. 332, and June 8, 1893, P. L. 344, her confession of judgment is presumably valid, and when she seeks to avoid it it devolves upon her to show affirmatively, not only the fact of marriage, but the presence of those circumstances which relieve her from liability. The rule is not different when she executes a judgment note jointly with her husband.
    2. Prima facie, when husband and wife join in the execution of an obligation, they are joint debtors, and subject to all the legal incidents of joint indebtedness. There is no presumption that either is a surety. This is a matter of defense and like other joint debtors, either may show, as against any party to be affected, in law, by such proof, that he or she is in fact a surety for the other. When this is done by the wife, the act of June 8, 1893, makes her obligation void.
    3. A proceeding to open a judgment is an appeal to the equity powers of the court; a judge, exercising the functions of a chancellor, is vested with the discretion to pass upon the weight of the evidence and credibility of the witnesses, and to dispose of the questions presented upon equitable principles. The action of the court below will only be reversed in such cases where the abuse of judicial discretion is apparent.
    4. An application to open a judgment entered against a married woman on a judgment note signed jointly by herself and husband is properly refused, where the evidence tends to show that although the husband received the proceeds of the note in money, yet the loan was made to the wife as principal on the security of her furniture, and that the application for the loan contained the following statement: “This money is borrowed by me for my own use and for the improvement of my separate estate.”
    Argued April 27, 1910.
    Appeal, No. 149, April T., 1910, by defendant, from order of C. P. No. 4, Allegheny Co., D. S. B. No. 52, First T., 1909, discharging rule to open judgment in case of G. R. Atkins v. Bertha Grist et al.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule to open judgment.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order discharging rule to open judgment.

      W. S. Maxey, for appellant.
    Under the circumstances of the case at bar taken in consideration with the evidence offered with them it brings it clearly within the exceptions which bar a married woman from executing a note or becoming surety for her husband or anyone else: Wiltbank v. Tobler, 181 Pa. 103; Patrick v. Smith, 165 Pa. 526; Harper v. O’Neil, 194 Pa. 141; Bank v. Short, 15 Pa. Superior Ct. 64; Harley v. Leonard, 4 Pa. Superior Ct. 431; City Savings Fund & Trust Co. v. Lintner, 15 Pa. Dist. Rep. 416; Stewart v. Stewart, 207 Pa. 59.
    October 10, 1910:

      John S. Cort, for appellee.
    Under the law a judgment against a married woman is presumably valid: Abell v. Chaffee, 154 Pa. 254; Barlow v. Foster, 5 Pa. Dist. Rep. 67; Leslie v. Carr, 5 Pa. Dist. Rep. 541; Toomey v. Rosansky, 11 Pa. Superior Ct. 506; McNeal v. McNeal, 161 Pa. 109; Wilson v. Fitzgerald, 25 Pa. Superior Ct. 633; Children’s Aid Society v. Benford, 26 Pa. Superior Ct. 555.
    The learned judges in the court below acted as chancellors. It was their duty to weigh the evidence and thej^ need not in every case of disputed facts submit same to a jury. On an appeal the appellate court will only see that their discretion has been properly exercised: Stephan v. Hudock, 4 Pa. Superior Ct. 474; Jenkintown Nat. Bank’s App., 124 Pa. 337; Augustine v. Wolf, 215 Pa. 558.
   Opinion by

Rice, P. J.,

The judgment in question was entered by virtue of a warrant of attorney to confess judgment contained in a promissory note executed by the appellant and her husband jointly. The ground upon which her petition to open the judgment was based was, that she executed the note solely as surety for her husband and that the proceeds of the loan for which the note was given were not received by her or for the benefit of her separate, estate, but were received by her husband. The petition was met by a responsive answer, denying that she executed the note as surety or security for her husband, and averring, in substance, that she executed it to secure a loan she was desirous of making on her household goods and that, while the money loaned on the note was not paid to her directly, it was paid to her husband as her agent and was used to repay money theretofore borrowed by her on her household furniture from two other loan companies.

The testimony taken on the rule shows that the household furniture in the premises where she and her husband resided belonged to her, that the plaintiff carried on the business of loaning money on household furniture, that before the loan was made the plaintiff’s agent went to the premises and, with the appellant’s knowledge and acquiescence, made an appraisement of the household furniture. There is a discrepancy between her testimony as to what was said at this time and that of the plaintiff’s agent upon the same subject. But the great weight of the testimony, taking the written documents into consideration, is that she showed the agent her furniture receipts when he asked for them, that when she asked what papers he had he told her a bill of sale, a judgment note and an application to be signed by her, and that she executed these papers knowing that the proposed loan was to be made on the credit of her household furniture. The evidence would not support a finding that she was not aware of the nature and contents of these papers or that her signature thereto was procured by misrepresentation as to the purpose for which they were to be used. The application by its terms was an application for a loan to her personally. It set forth the amount of the proposed loan, the occupation of her husband, a description of the real estate which she owned, the incumbrances upon it, her indebtedness, her ownership of the goods in the house, her agreement to sign a judgment note for the security of the loan, and concluded with the statement that she had read the application and the same had been fully explained to her. In the body of the application appears this significant statement: “This money is borrowed by me for my own use and for the improvement of my separate estate.” The three papers above referred to were executed by her at this time, and at a later time the judgment note was signed by her husband. It appears further that she had other outstanding loans on her furniture and that the plaintiff insisted on these being paid before completing the loan in question. The plaintiff accordingly gave to Mr. Grist the money to pay these loans and, upon his production of the receipts therefor, handed to him the balance of the amount of the loan applied for.

Formerly the capacity of a married woman to contract was exceptional and her disability general; now the disability is exceptional and her capacity general; the burden is on her when she seeks to avoid her contract, to bring it within one of the few exceptions: Patrick v. Smith, 165 Pa. 526. Since the passage of the acts of 1887 and 1893, her confession of judgment is presumably valid, and when she seeks to avoid it it devolves upon her to show affirmatively, not only the fact of marriage, but the presence of those circumstances which relieve her from liability. These general principles are so well settled that no authority for them need be cited. The rule is not different where she executes a judgment note jointly with her husband: Stephan v. Hudock, 4 Pa. Superior Ct. 474. In Algeo v. Fries, 24 Pa. Superior Ct. 427, the rule was stated thus: “Prima facie, when husband and wife join in the execution of an obligation, they are joint debtors, and subject to all the legal incidents of joint indebtedness. There is no presumption that either is a surety. This is a matter of defense; and, like other joint debtors, either may show, as against any party to be affected, in law, by such proof, that he or she is in fact a surety for the other. When this is done by the wife, the act of June 8, 1893, P. L. 344, makes her obligation void.” One who presents a money obligation of a married woman has made out a prima facie case, which can only be defeated by showing that the contract is one of the kinds prohibited by the act, and in such case the burden is not on the plaintiff to show that she actually applied the money to use in her business or for the benefit of her separate estate: Spotts’s Est., 156 Pa. 281; Italo-French Produce Co. v. Thomas, 31 Pa. Superior Ct. 503. Here, however, it is shown by testimony not seriously in controversy, that the greater part of the money loaned was actually applied to discharge other obligations of the appellant, and she thus got the benefit of the loan. We do not cite this fact as conclusive of the question before us. We concur with the learned counsel for the appellant in the proposition that, if as matter of fact the loan was made to the husband and she was simply surety, the fact that the husband applied the money to the discharge of her former indebtedness would not change the nature of the obligation that she assumed. Nevertheless it is a pertinent fact to be considered in connection with all the circumstances in determining the main questions, namely, Did she sign the note as surety for her husband or, was he acting as her agent in the disposition of the proceeds of the loan? The fact is consistent with her written declaration heretofore quoted.

Bearing in mind that the burden of proof was on the appellant to show that she was a mere surety, these other principles that have been settled by a long line of de-' cisions must be kept in view: that the judge to whom an application to open a judgment is made acts as a chancellor; that it is his duty to weigh the testimony; that he is not required in every case of conflicting evidence to send the case to a jury; and that on appeal the appellate court will only see that his discretion has been properly exercised. Many of the early cases upon the subject are cited in Stephan v. Hudock, 4 Pa. Superior Ct. 474. And amongst the later cases sustaining these principles are: Augustine v. Wolf, 215 Pa. 558; McCullough v. Kinnan, 31 Pa. Superior Ct. 557; W. W. Blake Tobacco Co. v. Posluszsy, 31 Pa. Superior Ct. 602. And in one of the latest of our cases the rule is stated thus: “A proceeding to open a judgment is an appeal to the equity powers of the court; a judge, exercising the functions of a chancellor, is vested with the discretion to pass upon the weight of the evidence and credibility of the witnesses, and to dispose of the questions presented upon equitable principles. The action of the court below will only be reversed in such cases where the abuse of judicial discretion is apparent:” Zajaczkowski v. Jawer, 36 Pa. Superior Ct. 324. When the written evidence is considered, in connection with all the circumstances, both as to the loaning and application of the money, we are unable to conclude that the court was not so clearly warranted in finding that the loan was made to the appellant and upon her credit as to justify the court in the exercise of its discretionary power in refusing to open the judgment. Her declaration in the written application for the loan, that the money was borrowed by her and for her own use, was entitled to very great weight in the absence of satisfactory evidence that this was a mere device adopted to evade the statute, or that she was induced to sign the paper by fraud or misrepresentation. We have carefully considered the cases cited in the appellant's brief, but are of opinion that they differ to such an extent from the present in their facts as not to control the decision here.

The order is affirmed at the costs of the appellant.