author: Landis, P. J.,

text:
    Wanner v. Buch.

      Arrest on Sunday — Damages for — Subsequent appearance — Act of Jan. 12, 1705.

    The arrest of a defendant on Sunday for a misdemeanor is forbidden by the Act passed Jan. 12,1705, § 4, 1 Sm. Laws, 25, and the constable who served such warrant is liable to suit for damages by the party aggrieved, although the latter subsequently appeared and plead guilty to the offence charged and paid the fine imposed.
    Com. V. Dingman, 26 Pa. Superior Ct. 615, distinguished.
    Action for. false imprisonment. Rule for judgment for defendant n. o. v. C. P. Lancaster Co., April T., 1921, No. 50.
    S. R. Zimmerman and John E. Malone, for rule; Joseph B. Wissler, contra.
    Dec. 23, 1921.
   Landis, P. J.,

The facts of this case as presented on the trial are not in dispute. A complaint was made on Jan. 29, 1921, against the plaintiff in this suit before George D. C. Danner, Esq., a justice of the peace, residing in Manheim Borough, for violating the school law in not sending his child to school. A warrant was placed in the hands of the defendant, who is a constable, commanding him to arrest the plaintiff. On Sunday, Jan. 30, 1921, Buch went to the plaintiff’s house with this warrant, and, taking the plaintiff with force into his custody, proceeded with him to Manheim to Squire Danner’s office. As Wanner could not give bail he was committed by Danner to the Lancaster County prison, where he remained until the following Tuesday night. At that time he was again taken before Squire Danner, where he entered a plea of guilty and was sentenced to pay a fine of $2 and costs, and this he did. He brought his separate suits on April 2, 1921, against both Buch and Danner for arresting and commiting him to jail on Sunday. The cases were tried together and verdicts were entered in favor of the plaintiff. The question now presented is, whether the verdict against Buch, the constable, is sustainable under the law.

By the Act passed Jan. 12, 1705, ch. 119, § 4, 1 Sm. Laws, 25, it is provided “that no person or persons upon the first day of the week shall serve or execute, or cause to be served or executed, any writ, precept, warrant, order, judgment or decree, except in cases of treason, felony or breach of the peace, but that the serving of any such writ, precept, warrant, order, judgment or decree shall be void to all intents and purposes whatsoever, and the person or persons so serving or executing the same shall be liable to the suit of the party grieved and to answer damages to him for doing thereof, as if he or they had done the same without any writ, precept, warrant, order, judgment or decree at all.” It is admitted that the defendant did serve the warrant upon the plaintiff on Sunday, the first day of the week, and that, under it, he took the plaintiff into custody, and, on a commitment issued by Squire Danner, placed him in the Lancaster County jail. It was also admitted that the arrest was not for treason, felony or breach of the peace. Without more, it follows that an action for damages was maintainable for violation of his rights under the Act of 1705. It made no difference what occurred subsequently. Whether he pleaded guilty or was found guilty or innocent on a hearing could not change the law as declared in that act. The process was void, and the person serving was liable for damages.

In Com. v. Eyre, 1 S. & R. 347, it is said: “The serving of legal process on Sunday tends to disturb the quiet of that day, which it is the object of the law on which the prosecution is founded to protect (Act of April 22, 1794, 3 Sm. Laws, 177). Therefore it is that the serving of all legal process is forbidden by another act (Act passed Jan. 12, 1705, 1 Sm. Laws, 25), except in cases of treason, felony or breach of the peace.” In Com. ex rel. Volpe v. Superintendent of County Prison, 5 Dist. R. 635, Thayer, P. J., on a writ of habeas corpus, discharged a defendant, one of the grounds assigned being that “the officers violated the law in making the arrest on Sunday, contrary to the plain prohibition of the Act of 1705.” It is clear, therefore, that the defendant violated the Act of 1705, and, unless some legal reason intervened, it follows that he was liable for the damages which the jury found the plaintiff had thereby sustained.

The defendant, however, urges that the plaintiff’s appearance on the following Tuesday, and his entry of a plea of guilty and the payment of a fine and costs condoned the offence and was a waiver of his right to bring this action. In Com. v. Dingman, 26 Pa. Superior Ct. 615, it was held that a prisoner may raise any question touching the legality of his arrest upon a proceeding to be discharged from custody; but if he has given bail to answer the charge, he cannot, after indictment found, raise such questions by motion to quash. To the same effect are Com. v. Brennan, 193 Pa. 567, and other cases. See, also, Com. v. Jayne, 32 Pa. C. C. Reps. 144. These cases do not seem to me to meet the point at issue. While the proceedings may, under such circumstances, be considered regular on their face, and may, therefore, be proceeded with, where an act is made absolutely void by the law, a constable who does what is contrary to its prohibitions is answerable, without regard to the subsequent conduct of a defendant.

I am of the opinion that the verdict is sustainable as rendered and that the rule for judgment non obstante veredicto should be discharged.

Rule discharged. From George Ross Eshleman, Lancaster, Pa.


source: Caselaw Access Project

license: Public Domain

text:
    Wanner v. Danner.

      Justices of the peace — Issue of commitment on Sunday — Damages for— Subsequent appearance — Act of Jan. 12, 1705.

    The commitment to jail on Sunday of a defendant arrested on a warrant issued on Saturday is a violation of the Act passed Jan. 12, 1705, 1 Sm. Laws, 25, and the justice of the peace who issued such commitment is liable for damages to the injured party, although the latter subsequently appeared, plead guilty and paid a fine.
    False imprisonment. Rule for judgment for defendant n. o. v. C. P. Lancaster Co., April T., 1921, No. 51.

      S. R. Zimmerman and John E. Malone, for rule; Joseph B. Wissler, contra.
    Dec. 23, 1921.
   Landis, P. J.,

This case differs somewhat from that of Wanner v. Buch, April Term, 1921, No. 50 [see preceding case], in which an opinion has just been filed, though not in any of the essential facts. The defendant is á justice of the peace, residing in the Borough of Manheim. On Jan. 29, 1921, he issued a warrant for the arrest of the plaintiff on a charge of violating the school laws, and placed it in the hands of Howard Buch, a constable. In pursuance of this warrant, Buch arrested Wanner on Sunday, Jan. SO, 1921, and took him before the defendant, who, in default of bail, committed him to the Lancaster County prison. He remained there until the following Tuesday, when he was again brought before the defendant. He then entered a plea of guilty and paid a fine of $2 and costs of prosecution, amounting in all to $16.65. The plaintiff gave notice, in accordance with the act of assembly, and then brought this suit to recover damages. A verdict was rendered in favor of the plaintiff, and the correctness of that finding is the question now before us.

The Act passed Jan. 12, 1705, ch. 119, § 4, 1 Sm. Laws, 25, provides “that no person or persons upon the first day of the week shall serve or execute, or cause to be served or executed, any writ, precept, warrant, order, judgment or decree, except in cases of treason, felony or breach of the peace,” and then declares that the serving of the same “shall be void to all intents and purposes whatsoever.” By an added provision, the person serving or executing the same is made liable to the suit of the party aggrieved and to answer in damages for so doing. This provision is not, however, applicable to the present defendant, as he issued the warrant on Saturday, Jan. 29, 1921, and had no hand in “serving or executing the same.” But when Wanner was brought before him on Sunday, Jan. 30th, he committed him to the Lancaster County prison in default of bail. Did he perform an illegal act in so doing, and if he did, was Wanner’s plea of guilty and the payment of a fine and costs a waiver of his right of action for damages?

The Act of 1705 prohibited him from causing “to be served or executed any writ, precept, warrant, order, judgment or decree, except in cases of treason, felony or breach of the peace.” A disobedience of the requirements of the school laws did not fall within any of these exceptions, and it, therefore, follows that he had no right to commit Wanner, in default of bail, to the Lancaster County prison for this offence. In so doing he violated the provision of the act. In McCarthy v. De Armit, 99 Pa. 63, Mr. Justice Trunkey, in delivering the opinion of the court, said: “If a justice of the peace, without reasonable cause, maliciously orders the arrest of a person for breach of the peace or felony he may be compelled to answer the injured party in compensatory damages, and also exemplary, proportionate to the wantonness and oppressiveness of his conduct.” In Grohmann v. Kirschman, 168 Pa. 189, Endlich, J., in the court below, said: “The lodging of an accused person in prison is not, strictly speaking, by virtue of the original warrant or arrest, which simply orders the constable to bring the accused before the magistrate to answer and be dealt with according to law, . . . but by virtue of another order or commitment, written or oral, issued by the magistrate after the prisoner has been brought before and examined by him. ... If, then, the magistrate, in violation of his duty to accept bail offered and thereupon to set the prisoner at large, causes him to be removed in custody of a constable from his office to the prison, such performance constitutes a new and distinct wrong, an illegal act, not merely an illegal omission, and that act, involving positive constraint applied by the magistrate to the prisoner, compelling him to do something and not merely to refrain from doing something, constitutes a trespass, an imprisonment, though there may have been no physical contact and no actual violence.” In Ross v. Hudson, 6 Pa. Superior Ct. 552, it was held that “a justice of the peace who illegally orders or causes the arrest of a citizen may be made liable in an action of damages; but to be so held liable the statute requires the preliminary notice to be given, so that proper amends may be made and expensive litigation avoided.” Orlady, J., in delivering the opinion of the court, said: “The English cases are uniform on this subject . . . and the decisions of our courts are in accord with them.” See Jones v. Hughes, 5 S. & R. 299; Kessler v. Hoffman, 9 Dist. R. 365. And in 24 Cyc., 423, it is stated that “the general rule is that a justice of the peace who acts in a ease of which he has no jurisdiction, or who exceeds his jurisdiction, is liable in damages to any party injured.” On page 426, 24 Cyc., it is also said that “want of malice or corrupt motive and error of judgment as to his jurisdiction, although they may go to the jury in mitigation of damages, will not justify or excuse a justice of the peace for any act done in excess of his jurisdiction.”

In this ease the notice was given in accordance with the Act of March 21, 1772, § 3, 1 Sm. Laws, 364, but the defendant did not offer to make amends, and he is here defending the action on the ground that by the plea of guilty the plaintiff waived all right to damages.

This proposition I do not think is well founded. The trespass was committed when the justice caused the plaintiff to be sent to prison. No matter whether the plaintiff was or was not guilty of the offence charged in the complaint, the justice could not, either orally or .in writing, commit him on the first day of the week without disobeying the provisions of the Act of 1705. I, therefore, think the case was properly submitted to the jury and that the verdict is a just and proper one.

The rule for judgment non obstante verediet is for these reasons discharged.

Rule discharged.

From George Ross Eshleman, Lancaster, Pa.


author: Endlich, P. J.,

text:
    Moyer v. Moyer.

      Negotiable instruments — Promissory note — Amount in blank — Right of holder to fill in missing term — Marginal figures.

    1. Plaintiff sued defendant to recover upon a promissory note, reading as follows: “$2,000.00 Reading, Penna., Jan. 27, 1916. One day after date, I promise to pay to the order of Abbylon Moyer.00/100 Dollars at. Without defalcation, for value received. Jonathan B. Moyer.” Defendant contended that, by reason of the blank spaces contained therein, the instrument was not a promissory note for anything, and that there could be no recovery upon it: Held, that the maker of the note, by executing it in blank, authorized the holder to insert a sum not exceeding the amount of the marginal figure of $2000; and that the right of the payee to fill up the blank was properly exercised by the bringing of the suit.
    2. In a certain sense the marginal figures are not a part of the note. If the note is complete and unambiguous without them, they cannot vary its effect. If, however, the note is ambiguous, they belong to it sufficiently to be used as a help in ascertaining its meaning, or if the note is incomplete they may be used under proper circumstances to limit the holder’s right to supply the missing term.
    Statutory demurrer. C. P. Berks Co., Aug. T., 1921, No. 27.

      H. Seidel Throm, for plaintiff.

      J. Fred Hartgen and Rothermel & Mauger, for defendant.
    Nov. 21, 1921.
   Endlich, P. J.,

The plaintiff’s amended statement was filed Aug. 13, 1921. An affidavit of defence was filed to it on Aug. 23, 1921, raising a question of law and asking for judgment in favor of the defendant, the plaintiff making a similar application for judgment in her favor.

The note upon which this suit is brought reads as follows:

“2,000.00. Reading, Pa., Jan. 27, 1916.

“One day after date I promise to pay to the order of Abbylon Moyer. . 00/100 Dollars at.without defalcation for value received.

Jonathan B. Moyer.”

The defendant’s contention, supported by certain decisions in other jurisdictions, is that this instrument is not a promissory note for anything, and that there can be no recovery upon it by the plaintiff. There seems to be but one adjudication of the question in Pennsylvania, and that one by Judge McPherson while on the Common Pleas bench of Dauphin County, Weaver’s Admin’r v. Paul, 4 Dist. R. 492. That ease seems to be as nearly on all fours with the present one as can be, and is decided in favor of the plaintiff upon reasoning so convincig that there seems to be nothing that can profitably be added to it, and it is sufficient to quote the following paragraphs from the opinion of Judge McPherson:

“In a certain sense, the marginal figures are not a part of the note. If the note is complete and unambiguous without them, they cannot vary its effect. If, however, the note is ambiguous, they belong to it sufficiently to be used as a help in ascertaining its meaning; or if the note is incomplete (as in the ease before us), they may be used, under proper circumstances, to limit the holder’s right to supply the missing term: Sweetser v. French, 13 Metcalf, 262; Burnham v. Allen, 1 Gray, 496; 1 Pars. Notes and Bills, 27-29; 1 Daniel Neg. Inst. (4th ed.), §§ 86 and 86a, and cases cited in notes.

“It is well known that if the maker of a promissory note signs it while the amount is in blank, both in the body of the note and in the margin, he thereby authorizes an innocent holder to insert any sum he pleases; or if, when he signs, a sum is named in the margin only and remains unaltered, he authorizes such holder to insert any amount not greater than is indicated by the marginal figures. As between the maker of such a note and the payee, if the body and margin are both blank when the maker signs (and this may be shown by parol, because it does not contradict the note, but is strictly relevant to the inquiry what the note is), the authority is to insert such sum as was agreed upon between them; or if there are marginal figures, the authority is to insert any sum not exceeding this limit: Goodman v. Simonds, 20 How. 343; Bank v. Eldred, 9 Wall. 544; Bank v. Kimball, 10 Cush. 373; Boyd v. Brotherson, 10 Wend. 93; Redlich v. Doll. 54 N. Y. 234; McGrath v. Clark, 56 N. Y. 34; Dinsmore v. Duncan, 57 N. Y. 573; Barker v. Steerne, 9 Exch. 684; Garrard v. Lewis, 10 Q. B. Div. 30; Woodworth v. Bank, 10 Am. Dec. 271, note; 1 Daniel Neg. Inst. (4th ed.), § 142; Garrard v. Haddan, 67 Pa. 82; Wessell v. Glenn, 108 Pa. 104.”

The case incidentally decides, also, that the right of the payee to fill up the blank is properly exercised by the bringing of the suit. It may, however, not be out of place to call attention to the fact that the Negotiable Instruments Act of May 16, 1901, P. L. 194, in section 14, provides that “where the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein,” and that in this case the note is held by the original payee and there is no third party interested.

And now, Nov. 21, 1921, it is adjudged that upon the question of law raised by defendant’s affidavit of defence the defendant is not entitled to judgment, that his application therefor is refused, and that the plaintiff is entitled to judgment unless the defendant, within fifteen days from this date, file a sufficient supplemental affidavit of defence to the averments of fact of the plaintiff’s statement.

From Wellington M. Bertolet, Reading, Pa.


author: Wanner, P. J.,

text:
    Hyde’s Estate.

      Inheritance transfer tax — Collateral inheritance — Second appraisement— Omission of real estate — Appeal—Decedents’ estates.

    1. There cannot, in the absence of fraud, accident. or mistake, be a second appraisement of a decedent’s property for the purpose of the collateral inheritance tax. The only remedy for the erroneous exercise of judgment by the appraiser is By appeal.
    2. Where, twenty-six years after the first appraisement, a seoond appraisement was made and two pieces of real estate included, which were alleged to have been omitted from the first, the second appraisement will be set aside on appeal, where no fraud or mistake is shown and the evidence was in effect that the first appraisement was satisfactory to the Register of Wills and all parties.
    Appeal from collateral inheritance tax appraisement in estate of Lydia Ann Hyde. O. C. York Co.

      Cochran, Williams & Kain, for appellant; S. K. McCall, for appellee.
    Oct. 3, 1921.
   Wanner, P. J.,

The decedent, Lydia Ann Hyde, died April 3, 1894, and a collateral appraisement of her estate was filed in the register’s office on May 19, 1894, which omitted therefrom two tracts of land in which the decedent held an undivided interest under the will of her deceased father, Joshua Hyde. Upon the discovery of this omission, the present Register of Wills had a collateral appraisement of the interest of the decedent in said estate made, which was filed in his office on June 16, 1920. From that appraisement this appeal was taken, and it is contended that the first appraisement was final and conclusive, because no appeal therefrom was taken by the Commonwealth within the time prescribed by statute.

It was held in Moneypenny’s Estate, 181 Pa. 309, that there cannot, in the absence of fraud, accident or mistake, be a second appraisement of the decedent’s property for purposes of collateral inheritance tax, and that the only remedy for the erroneous exercise of judgment by the appraiser is by appeal.

It'is conceded by counsel in this case that there is no evidence of fraud or accident in connection with the first appraisement in this estate. Neither is there sufficient evidence of any mistake of fact in regard to the decedent’s real estate at the making of the first appraisement.

The appraiser, now a very aged man, has no specific recollection of the facts and circumstances attending that appraisement, and only speaks of a vague impression which he has that he appraised all the property which was pointed out to him. When, where or by whom this may have been done does not appear. This is manifestly insufficient to establish any mistakes of fact as to this real estate on the part of the appraiser in making the appraisement or to assist the court in determining its validity.

The testimony of D. K. Trimmer, Esq., the attorney who conducted the proceedings on behalf of the estate when the first appraisement was made, is much more direct and clear as to certain material facts within his knowledge. He says there were conversations between himself and the register or his deputy in relation to the Joshua Hyde will and the decedent’s interests in this land under its provisions. He is not certain of the appraiser’s presence at these conversations, but he is certain, and repeatedly says, that the fact of the decedent’s interest in the land in question was well known to all concerned, and that the result of the appraisement was apparently satisfactory to all. This statement was not contradicted, and the court has personal knowledge of the integrity and credibility of the witness, who is a highly respected member of this bar.

There is nothing in the evidence which proves that there was any mistake of fact as to the existence of the decedent’s interest in this land at the time of the appraisement in the mind of either the register or the collateral appraiser. The burden of proving the existence of facts invalidating the first appraisement is on the Commonwealth, because the legal presumption is that the proceedings were regular and legal in all respects until the contrary is shown. This is, therefore, not a case of after-discovered property which was not known to the register or the collateral appraiser when the first appraisement was made, and which might, under the contention of appellee’s counsel, be subject to appraisement.

The cases cited by counsel at the argument and those cited by the Supreme Court in Moneypenny’s Estate, 181 Pa. 309, are all to the effect that, under circumstances like these, there can be no legal second appraisement of decedent’s estate for collateral tax purposes.

The conclusion we reach from the evidence is that the omission of these traets of real estate from the first appraisement was made by the appraiser with knowledge of the existence of the interest of decedent therein. If a mistake was made, it was an error of judgment on his part, for the correction of which the only remedy is an appeal: Moneypenny’s Estate, 181 Pa. 309; Lucas’s Estate, 21 Dist. R. 757.

Now, to wit, Oct. 3, 1921, the appeal is sustained and the collateral appraisement filed in the register’s office by the collateral appraiser of the estate of Lydia Ann Hyde, deceased, on June 16, 1920, is hereby set aside.

From Richard E. Cochran, York, Pa.


author: Koch, J.,

text:
    Commonwealth v. Maguire et al.

      Costs — Criminal law — Costs on prosecutor — Discretion of court over verdict — Act of March SI, 1860.

    1. The Act of March 31, 1860, P. L. 427, 445, giving the jury, in cases of acquittal, the power to determine who shall pay the costs, does not take away from the court the power to set aside so much of the verdict as relates to the payment of the costs in a proper case.
    2. The court will not set aside the imposition of the costs upon the prosecutor, where the evidence shows that a ease of probable cause was not made out against the defendants, and that the prosecutor, although a special policeman of a railroad company, was not a public officer, and was represented by private counsel.
    3. Where a prosecutor seeks to set aside an imposition of costs upon him, he should obtain a rule upon the county and upon the defendants to show cause, etc.
    Petition of S. C. Samuels, prosecutor, for relief from payment of costs. Q. S. Schuylkill Co., Jan. Sess., 1922, No. 155.

      M. A. Duffy, Deputy District Attorney, and George Ellis, for Commonwealth.

      Albert Bashore, for defendants.
    Feb. 27, 1922.
   Koch, J.,

The petitioner was the prosecutor in the above case, in which he laid the information charging Martin Maguire and four others with being tramps and trespassing on property of the Philadelphia and Reading Railway Company. The district attorney had each of the persons so charged separately indicted as a tramp under the Act approved April 30, 1879, P. L. 33. The act is entitled “An act to define and punish tramps.” According to its definition, a tramp is “any person going about from place to place begging, asking or subsisting upon charity and for the purpose of acquiring money or a living and who shall have no fixed place of residence or lawful occupation in the county or city in which he shall be arrested.” A tramp is guilty of a misdemeanor and may be imprisoned for twelve months. “Any person, upon view of any offence described in this act, may apprehend the offender and take him before a justice of the peace or alderman,” etc.: Section 4.

The prosecutor is one of the special police of the Philadelphia and Reading Railway Company. His testimony amounted only to this: That people had complained to him of beggars having been in the Borough of Ashland, and that, at about 11.45 P. M. on Dec. 27th last, he found the five defendants loitering in the outer or upper railway station of the said company and arrested them. Also, that one claimed to reside in said Borough of Ashland, one in the Borough of Shenandoah, and another in the village of New Castle in this county, whilst the other two resided elsewhere outside of this county. Samuels had not seen any of the defendants beg. Two of the defendants told him they were looking for jobs, and the other three said they did nothing. He was supported in his testimony by another coal and iron policeman.

We explained the said act of general assembly to the jury and said the testimony did not meet the requirements of the act and did not warrant the conviction of the defendants, that they, therefore, were entitled to acquittal, but that the jury had, nevertheless, the costs at their disposal. The Criminal Procedure Act of March 31, 1860, P. L. 427, 445, inter alia, says: “. . . In all cases of acquittal by the petit jury on indictments for the offences aforesaid, the jury trying the same shall determine by their verdict whether the county or the prosecutor or the defendant shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportions,” etc. Prior to March 20, 1797, 3 Sm. Laws, 281, a defendant who was acquitted was equally liable to the costs of prosecution as if he were convicted, but the legislature in that year passed an act imposing the costs upon the city or county in which the prosecution was commenced: 3 Sm. Laws, 281. But the legislature in 1804 made either the prosecutor or the defendant liable for costs in misdemeanors in cases of acquittal: 4 Sm. Laws, 204. But costs could not be apportioned by a petit jury between a prosecutor and an acquitted defendant until that power was conferred by the Act of April 12, 1859, P. L. 528. The language of the Act of March 31, 1860, P. L. 427, 445, is entirely clear. It has even been held that, where the statute of limitations bars a conviction, a petit jury may put the costs on the defendant: Baldwin v. Com., 26 Pa. 171. And a petit jury’s right to dispose of costs extends to cases of defective indictments: Com. v. Harkness et al., 4 Binney, 193. However, the acts referred to “cannot take away the common law supervision of the courts which belongs to a trial by jury:” Guffy v. Com., 2 Grant, 65, 68. And the court has supervision over so much of the verdict as relates to costs, notwithstanding an acquittal: Guffy v. Com., 2 Grant, 66, 69. Mr. Justice Lewis said in the Guffy case just referred to: “No man can suppose for a moment that the legislature intended to place it in the power of the jury to impose severe penalties upon public officers for the faithful performance of their duties” (page 69). He further said that it is the duty of a court to set aside a verdict “in all cases where ‘there is nothing in the testimony to show that the prosecutor behaved improperly.’ ” We have discretionary power over the subject. In Com. v. Doyle, 16 Pa. Superior Ct. 171, 174, it is said: “Where a prosecution is not trifling, but one of grave character; where it is not unfounded but founded upon probable cause, . . . and where there is no evidence of malice in the prosecution, it is the duty of the court to set aside the verdict against the prosecutor for costs: Guffy v. Com., 2 Grant, 66; Wadlinger on Costs, §§ 192, 193, and cases there cited.” See, also, Com. v. De Ganie, September Sessions, 1918, No. 671.

After a perusal of many cases bearing on this subject, we are of the opinion that this case does not call for the exercise of our discretion to set aside the costs. The evidence adduced on the trial does not make out a case of probable cause against the defendants. Besides, the case was prosecuted by private counsel for the Commonwealth, and whilst the prosecutor has the rights of a constable, yet he is hardly to be considered a public officer.

Proper diligence might have secured evidence to convict the defendants. Under the Act of April 14, 1905, P. L. 152, a court may direct the county to pay the costs where it sets aside a verdict imposing them upon the prosecutor or defendant. The county, therefore, is a party in interest and should have notice that an attempt is made to have it pay the costs. In this proceeding no one has had any notice, because the prosecutor simply addressed to us his petition setting forth certain facts and then praying to be relieved from the payment of costs. It seems to us that the petition should have asked for a rule to show cause, etc., after service of notice upon the county at least, if not upon the defendants also. Upon the whole record we think we have no right to interfere with the verdict of the jury. The jury was very fully instructed as to the question of costs and as to the prosecutor’s rights and duties in the premises.

And now, Feb. 27, 1922, the petition is dismissed, the petitioner is granted an exception and bill is sealed.

From M. M. Burke, Shenandoah, Fa.


author: Woodward, J.

text:
    Wilson Brothers v. Fields, Inc.

      Sale — Sales in bulk — Notice to creditors — Time—Speaking demurrer— Act of May 23, 1919.

    1. The limitation in the Sales in Bulk Act of May 23, 1919, F. L. 262, of ninety days within which suit must be brought after the sale, begins to run from the time at which the creditor has notice of the sale, and not from the date of the sale.
    2. In an action under the Act of May 23, 1919, by a creditor against the purchaser of goods in bulk for a debt due by the seller to the plaintiff, an affidavit of defence which does not admit plaintiff’s statement as to the date of the sale, but sets up a different date, raises an issue of fact and not a question of law, and, therefore, is bad as a demurrer.
    Statutory demurrer. C. P. Luzerne Co., May T., 1921, No. 876.

      Jenkins & Turner, for plaintiff; Harry Coplan, for defendant.
   Woodward, J.

The statement in this case shows an action of assumpsit against Fields, Inc., for $65.50, on account of goods sold and delivered by the plaintiff to the Brownstone Company.

The statement alleges that on Dec. 7, 1920, the Brownstone Company sold its property in bulk to the defendant, Fields, Inc., and that the defendant did not, before paying the vendor, require of the Brownstone Company a sworn written statement of the names and addresses of all the creditors of the Brownstone Company, as required by the Act of May 23, 1919, P. L. 262, and that the defendant did not, at least ten days before the completion of the purchase, notify the plaintiff, creditors of the Brownstone Company, either personally or by registered mail, of the proposed sale, the prices to be paid or the time set for the sale of the property, and the terms and conditions thereof, with a statement of the creditors of the Brownstone Company, as required by said act, and that, therefore, the defendant, Fields, Inc., is liable to the plaintiff for the amount of the claim.

NOTE. — See Fibre Tarn Co., Inc., v. Tiberio; Saracenyi, Garnishee, 1 D. & C. 645.

The affidavit of defence raises a question of law, in lieu of demurrer, that the suit was not brought within ninety days after the consummation of the sale, as required by the Sales in Bulk Act.

That the sale from Brownstone Company to Fields, Inc., was consummated before Dec. 5, 1920, being on or about Dec. 1, 1920, and as this action was instituted March 6, 1921, by the plaintiff, more than ninety days had expired and that the plaintiff is barred by the limitation in the act.

We think the defendant has put a wrong interpretation upon section 26 of the Practice Act of 1915, which reads as follows: “The defendant in the affidavit of defence may raise any question of law without answering the aver-ments of fact in the statement of claim, etc.”

One of the facts averred in the statement of claim is that the Brownstone Company sold its property to the defendant, Fields, Inc., on Dec. 7, 1920. The affidavit of defence avers that the sale did not take place on Dec. 7, 1920, but on or about Dec. 1, 1920. This raises an issue of fact, not a question of law. A demurrer admits the facts alleged in the statement, but avers that they are not sufficient to warrant a judgment. But this affidavit of defence does not admit the truth of the averment in the plaintiff’s statement, but denies the same and sets up another date as the date of the sale.

It is, therefore, bad as a demurrer or as an affidavit of defence raising a question of law. It is an affidavit of defence on the merits, because it raises an issue of fact as to the date of sale, which must be decided by the testimony at the trial.

But it is not sufficient as an affidavit of defence on the merits, because it does not state definitely the day on which the sale was consummated, but says that it was on or about Dec. 1, 1920.

We cannot decide a question of law raised by the defendant in its affidavit, because no legal question is properly raised. As an affidavit on the merits we decide that it is insufficient, in that it is too indefinite as to the date of sale.

Nor do we think that the limitation of ninety days, provided in the act within which suit must be brought, applies to a creditor who has not had notice of the sale in bulk, but that the limitation begins to run from the date when the creditor has notice, otherwise it would put a premium on a violation of the act requiring notice, for if a creditor at a distant point, as in this case, received no notice he would be concluded after ninety days had passed and the debtor escape entirely. The purpose of the act, as we view it, was to benefit creditors, not to protect purchasers in bulk who violated its provisions.

Rule will be made absolute unless a sufficient supplemental affidavit of defence be filed within fifteen days.

From F. P. Slattery, Wilkes-Barre, Pa.


author: Gumímey, J.,

text:
    Connor’s Estate.

      Wills — Gift of share of residue — Lapse—Act of June 7, 1917.

    Under section 15 (0) of the Wills Act of June 7, 1917, P. L. 403, where the general residue is bequeathed in equal shares to several legatees, their heirs and assigns forever, the share of any one of them dying in testator’s lifetime without issue passes to the survivors.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1921, No. 384.

      Cameron & Carey, for exceptions; Patrick H. Lynch, contra.
    June 23, 1922.
   Gumímey, J.,

Mary Connor having bequeathed the residue of her estate to her son, Charles J. Connor, and her daughter, Mary E. Dempsey, their heirs and assigns forever, to be divided equally between them share and share alike, and Charles J. Connor having died in his mother’s lifetime without issue, the auditing judge awarded the whole of the residuary estate to the surviving beneficiary, Mary E. Dempsey, in pursuance of section 15 (c) of the Wills Act of June 7, 1917, P. L. 403, which provides that if a bequest in the residuary clause of a will fails or is void, it shall pass to the other residuary legatees unless the will shows an intention to the contrary. We do not see how the auditing judge could have done otherwise in view of our decision in Mitchell’s Estate, No. 241, April Term, 1921, affirmed by the Superior Court on March 3, 1922, not yet reported; it should be remembered, however, that Charles J. Connor died without issue; his children, if he had left any, would have taken his share under section 15 (a) of the Wills Act of 1917.

The appeal in Mitchell’s Estate, supra, had not been disposed of by the Superior Court at the time of the audit and, therefore, the auditing judge directed that one-half of the residuary estate should be retained by the accountant pending the result of that appeal; as the reason for this order no longer exists, it is hereby vacated, the exceptions are dismissed, the entire residuary estate is awarded to Mary E. Dempsey in her own right, and the adjudication as hereby amended is confirmed absolutely.


author: Barratt, P. J.,

text:
    Hirst et al. v. Freeman et al.

      Auctioneers — Sale of real estate subject to lessee’s option to buy — Hand-money.

    1. When real estate Is sold at public sale, subject to a lease containing an option to the lessee to buy the property at the price bid within a specified time, the bid is merely an offer which is automatically rejected when the lessee signifies his intent to buy at the price bid within the time specified, and, thereupon, it becomes the duty of the auctioneer to return the entire hand-money to the bidder and seek compensation from the vendor who engaged him.
    2. The fact that the lessee subsequently failed to buy the property does not affect the bidder’s right to a return of the hand-money; his election to buy released the bidder.
    Motion for judgment for want of a sufficient affidavit of defence. C. P. No. 2, Phila. Co., June Term, 1921, No. 6679.

      William T. Brennan and Damiel C. Donoghue, for plaintiffs.

      Allen S. Olmsted, 2nd, and Saul, Ewing, Remick & Saul, for defendants.
    June 5, 1922.
   Barratt, P. J.,

At a public sale of real estate the plaintiffs’ decedent made a bid of $110,000 for the property, which was accepted by the defendants, auctioneers employed to make the sale by the owners. $5000 was paid as down-money, and the usual auctioneers’ receipt given. At the time of the sale the premises were occupied by the Society of the American Red Cross, which held under a two-year lease. The lease contained this option to the tenant to purchase the property, viz.: “Should the lessor have a proposal for the purchase of the property, the lessor agrees to give the lessee the first opportunity to buy the same, subject to the understanding that if notice is served upon the lessee to that effect it is to decide within one week as to whether or not it will purchase the demised premises.”

The sale was advertised by the auctioneers as being “subject to a lease expiring upon three months’ written notice on September 11, 1921. The lease gives the lessee the right to purchase the property within seven days after sale. The lease also contains a clause requiring that possession of the property be given within four months upon the sale thereof. Sale subject to the approval of the Orphans’ Court.” After the sale the attorney for the estate which owned the property notified the bidder that the lessee had elected to purchase under the option in the lease. The bidder thereupon increased his offer to $117,500, which offer was not accepted. The lessee has failed to buy the property and the bidder is not now disposed to consummate the purchase. This suit is brought to recover the $5000 paid to the auctioneer at the sale.

The defendants in their affidavit of defence urge that a binding contract for the sale was made at the time the property was struck down to the plaintiffs’ decedent, and that the plaintiffs are under the duty to consummate the sale, and, therefore, not entitled to the return of the money paid on account. The plaintiffs seek judgment for want of a sufficient affidavit of defence and obtained this rule.

If the plaintiffs are obligated under the terms of the sale to purchase the real estate at the price bid, regardless of the election by the lessee to take under the option, then the affidavit of defence is sufficient. But if the bid at the public sale amounted only to an offer, which was automatically rejected by the exercise of the option, then the affidavit is insufficient, for it merely insists that the plaintiff carry out a contract which, in fact, was never completed.

The question is whether at a public sale of real estate, subject to a lease containing an option to the lessee, the bidder obligates himself to purchase a title which may be divested by the exercise of the option, or whether his bid is merely an offer which is automatically rejected when the lessee signifies his intention to buy at the price bid.

At an auction sale the striking of the property to the highest bidder is an acceptance of the bidder’s offer, and the contract is completed on the terms announced by the auctioneer. The contract for the sale of the real estate in this case became binding upon both parties with that act, and neither could refuse to carry out its provisions except by mutual consent. The seller contracted to sell his entire interest in the property, that is, the full title, on condition, however, that the lessee might purchase the same within seven days, and the bidder, having knowledge of the condition, contracted to take.

Defendants’ contention is, the purchaser of an equitable title (including one held by a vendee under articles of agreement), of a title inchoate or defective on its face, takes subject to all the countervailing equities to which it was subject in the hands of the person from whom he purchases: Kramer v. Arthurs, 7 Pa. 165; Reed v. Dickey, 2 Watts, 459; La Belle Coke Co. v. Smith, 221 Pa. 642. One who purchases land with notice that the title is defective takes the whole risk on himself: Walker v. Quigg, 6 Watts, 87. It is admitted that the bidder had knowledge of the outstanding encumbrance, and according to the analogy in the case of Coolbaugh v. Ransberry, 23 Pa. Superior Ct. 97, equity would specifically enforce the contract entered into between the lessor and lessee, and to which the bidder would become a party by taking the title of the lessor. In Coolbaugh v. Ransberry, a vendee took a conveyance of land through which the vendor had previously agreed to give a right of way to a railroad company. The vendee had knowledge of this agreement, although it was not mentioned in his deed, and equity compelled specific performance of the agreement with the railroad company. The option in the present lease was in the nature of a continuous offer to sell, and, when accepted, became a complete contract of sale: Kerr v. Day, 14 Pa. 112; Napier v. Darlington, 70 Pa. 64. A vendee who takes title to land with the knowledge that his grantor has agreed to sell it to another person, takes it subject to the equitable estate vested in the said vendee: Smith v. Gibson, 1 Yeates, 291; Riel v. Gannon, 161 Pa. 289; Dillinger v. Ogden, 244 Pa. 20. The same is true where a grantee, with notice of a prior option, which has not expired, takes subject to the right of the person holding the option to compel specific performance: Hamory v. Sargent, 25 Pa. C. C. Reps. 191. In the present case the bidder had knowledge of the option, and the lessee had the absolute right to make the contract binding within the time specified.

It is clear that the defendants admit that at the sale the bidder offered to buy the title of the owner, i. e., a good legal title, but one which might be taken by the lessee within seven days after the sale. He became entitled to the whole of the property he bid for, and he was under no obligation to accept less: Millingar v. Daly, 56 Pa. 245. The defendants argue that the plaintiffs made their bid knowing that they took the chance of having to sell to the lessee, and that they cannot now complain that the lessee has defeated their title to the property. It is immaterial whether the lessee actually consummated the sale under the option, for the rights of the seller and the bidder were established at the moment the property was struck down. The bidder could insist on a conveyance to him, and he, in turn, could not refuse to sell to the lessee under the terms of the option.

Such is the position of the defendants, but, after all, this is merely the written contract for the sale of land and is to be construed with a view to the entire agreement: Meanor v. McKowan, 4 W. & S. 302; Brown v. Decker, 142 Pa. 640. The entire contract is evidenced by the advertisement of the auctioneers and the receipt, and there is no doubt that the purchaser knew that the same was made subject to the right of the lessee to exercise the option within seven days. But if we should follow the theory of the defendants, great hardship would result to the plaintiffs, and it would be supporting an interpretation which is not warranted by the apparent intention of the parties. Where a strict construction would work a great injustice, a contract may be interpreted by its spirit and meaning: Bickford v. Cooper, 41 Pa. 142. It must be construed with reference to the circumstances under which the parties contracted: Perry v. Payne, 217 Pa. 252. Hence, the motive or object of the agreement may be considered in arriving at the intention of the parties: Dixon-Woods Co. v. Glass Co., 169 Pa. 167.

The facts in this case are not disputed and, therefore, the construction and effect of the written contract must be left to the court: Camden Wood Turning Co. v. Malcolm, 190 Pa. 62; Erie Forge Co. v. Iron Works Co., 22 Pa. Superior Ct. 550; Duffield v. Hue, 129 Pa. 94. This contract is not within the class of the usual auction sales, nor is the option contained in the lease similar to an ordinary form of option given to a lessee. The chief difference is in the fact that the option was dependent upon the proposal to buy by another person, and the bid was made by the plaintiffs’ decedent with the knowledge that he was establishing a price at which the lessee could buy almost immediately, and, therefore, he could gain nothing.

It is not to be supposed that a reasonable person would obligate himself to pay $110,000 when he would get nothing in return; he would hardly take the risk of paying that amount merely on the chance that the lessee would not buy under his option. The natural construction of the contract would be that neither party contemplated an absolute transfer of the property, unless the lessee did not exercise his option within the seven days. It was in the nature of a sale contingent upon the happening of a certain event within seven days, and when that event happened, the purposes of both parties were accomplished. The bidder had made his bona fide offer, which established the price at which the lessee could buy, and he had risked his $5000 on the chance that the lessee would not exercise the option. The seller was in the position of having made his offer to sell to the lessee at $110,000, which offer remained open for seven days. It is immaterial that the lessee did not complete the purchase, for the election itself released the bidder, and the owner and the lessee were both in position to enforce the contract between them: Kerr v. Day, 14 Pa. 112; Napier v. Darlington, 70 Pa. 64.

This understanding of the parties is borne out by their action after the sale. The plaintiff’s decedent was notified that the lessee had exercised its option, and the plaintiffs’ decedent, considering that his offer was rejected, made a larger offer, which was refused; the apparent reason being that the seller considered himself obligated to complete the contract with the lessee. It cannot reasonably be supposed that the parties contemplated the passing of title twice, with the necessary conveyancing and insurance expenses, in case the lessee exercised its option, once to the bidder and by him to the lessee, yet if we follow the argument of the defendants such would be the effect.

The bidder could not possibly get a clear title if the option were exercised, and, as a matter of fact, he would have nothing but the bare legal title with an equitable duty to convey it immediately to the lessee. The vendee has the right not merely to have conveyed to him a good legal title, but an indubitable one. Every title is doubtful which invites or exposes the party to litigation; such doubts as will, and ought to, induce a prudent man to pause and hesitate in accepting a title, prevent it from being marketable: Stone v. Carter, 48 Pa. Superior Ct. 236, 251. In the present case the bidder would not even get a doubtful title, but one which was certain to be taken from him by the enforcement of the equity of the lessee, and it cannot be said that the parties anticipated the sale of a contingent title. Although the plaintiffs’ decedent had knowledge of the outstanding option, he did not anticipate taking the legal title subject to the equity of a prior vendee, for no contract for the sale of the land to the lessee was completed until after the plaintiffs’ decedent had made his bid. On the contrary, the option does not mature into a binding agreement until exercised: Barton v. Thaw, 246 Pa. 348; Markley v. Godfrey, 254 Pa. 99. Therefore, the natural and reasonable construction of the present contract, taken from the circumstances of the transaction and the spirit and intention of the parties, as indicated by their actions, would be that the bid of the plaintiffs’ decedent was merely an offer to purchase, contingent upon the exercise of the option by the lessee, and that as soon as the lessee elected to buy under the option, a contract with the lessor was made and the executory contract with the bidder fell.

It follows then that the hand-money paid to the defendants as agents for the owners was in the nature of a deposit on account of the purchase price, which, upon the failure of the contract, became returnable to the bidder. The vendor certainly was not entitled to retain this amount as a forfeit when the contract failed through no fault of the plaintiffs, and, therefore, the defendants as agents must pay over the entire amount to the plaintiffs and seek compensation from the vendors who engaged them.

The affidavit of defence is insufficient, for it only suggests a duty on the plaintiffs which is not warranted by a reasonable interpretation of the agreement. It shows that the rights of the defendants are dependent upon those of the owner. Under the contract the owner acquired no right to the down-money after the election of the lessee, and, therefore, his agents cannot set up his claim to a lien against funds which do not belong to the principal.

It is true that the auctioneer is the purchaser’s agent once the property is knocked off: Veazie v. Williams, 8 How. (U. S.) 134; 12 L. Ed. 1018. That is so, however, on the-assumption that the title passes, and the title does not pass to the bidder in this case. The auctioneers have acted entirely for the proposed vendors. The latter cannot perform his undertaking with plaintiffs. As a stakeholder, the auctioneers must return the deposit to the purchaser: Teaffe v. Simmons, 11 Allen (Mass.), 342; Warvelle on Vendors, §256.

Rule for judgment is made absolute.


author: Hause, J.,

text:
    Beattie’s Assigned Estate.

      Deeds — “Under and subject” to judgments — Liens—Judgments—Assigned estate — Distribution of proceeds of real estate.

    1. A deed conveying land “under and subject” to the payment of an encumbrance created by the grantor constitutes, only as between the grantor and the grantee themselves, a covenant of indemnity to the grantor on the part of the grantee, but the holder of the encumbrance acquires neither right nor remedy under the deed.
    2. Where a person conveys land “under and subject” to judgments which are at the time liens upon the land, and thereafter the grantee makes an assignment for the benefit of creditors, and his real estate is sold, but the proceeds thereof are not sufficient to pay all the liens thereon, the judgments referred to in the deed cannot share in the distribution if it appears that they had not been revived and that their lien had been lost at the time of the sale.
    Exceptions to report of auditor on distribution. C. P. Chester Co.

      Holding & Harvey, for exceptions.
    Jan. 17, 1922.
   Hause, J.,

On Sept. 20, 1915, Mary K. Baldwin conveyed a tract of land to Thomas S. Beattie and Sarah M., his wife, as tenants by entireties. The wife later died and the title became absolute in the husband. Baldwin had acquired title in 1911 from George M. Chandler. At the date of the conveyance from Baldwin to Beattie, the land was encumbered by, among others, two judgment liens, created by Baldwin in favor of J. B. Swayne; the first for $168.68, entered Oct. 31, 1912, and the second for $102.57, entered Jan. 17, 1913. Neither of these liens has since been revived.

The conveyance referred to contains this clause: “Under and subject to the payment of two judgment notes held by J. B. Swayne and entered in the prothonotary’s office against Mary K. Baldwin, &c.” The consideration named in the conveyance is “one dollar and other consideration,” and then follows the “under and subject” clause quoted, and this clause includes, in addition to the two judgment liens referred to, two mortgage liens aggregating $3750, and a judgment lien of Pennock Brosius for $170. This latter lien was regularly revived. These various liens formed part of the purchase money for the land conveyed.

On Jan. 9, 1920, Beattie assigned his property for the benefit of his creditors. The real estate was sold and the fund, wholly the proceeds of realty, is here for distribution and is insufficient to pay all liens in full.

The auditor, appointed to make distribution, refused to allow the Swayne judgments to participate, and to his refusal the present exceptions were filed. Counsel concedes that these judgments are no longer liens, in so far as the Act of June 1, 1887, P. L. 289, is concerned, in view of the fact that they were not revived in the manner required by the act; but it is earnestly urged that the “under and subject” clause in the deed from Baldwin to Beattie “created” or fastened upon the land a new lien as of the date of the conveyance, which was existing when Beattie’s assignee sold the land and of which Swayne may avail himself in the distribution.

That a grantor may, by apt expressions in his deed, “create” liens upon the land conveyed is a proposition well settled. Hence, the inquiry here is, what is the legal effect of a conveyance of land “under and subject to the payment” of liens then existing against it?

It is not pretended that Beattie, the grantee of Baldwin, by any “agreement in writing” expressly assumed any personal liability for Swayne’s liens, nor are there any “express words in the deed” to the effect that the land was conveyed “on condition of the grantee assuming such personal liability,” and, therefore, the grantor, Baldwin, has no personal undertaking arising out of the language of the deed that he can enforce against Beattie. Such is the situation declared by the Act of June 12, 1878, P. L. 205, with the further statutory declaration that “the use of the words ‘under and subject’ to the payment of such encumbrance shall not alone be so construed as to make such grantee personally liable” for the amount of the encumbrance. And even though, as between grantor and grantee, the language in the deed did create a personal responsibility to pay the amount secured, this could not avail the holder of the encumbrance, because he is no party to the covenant: Smith v. Danielson, 45 Pa. Superior Ct. 125; Tritten’s Estate, 238 Pa. 555.

How, then, shall the clause be construed? This inquiry, it seems to us, has been answered by both our appellate courts. “A conveyance of land ‘under and subject’ to the payment of an encumbrance created by the grantor,” said Judge Porter, speaking for the Superior Court, “constitutes only, as between themselves, a covenant of indemnity to the grantor on the part of the grantee:” Peters’s Estate, 16 Pa. Superior Ct. 462. Stating the construction in somewhat different terms, the same judge said: “The words ‘under and subject’ in a conveyance import that the grantee takes the land subject to an encumbrance, the amount of which has been deducted from the agreed price (as was the case here), and the covenant to be inferred from it is that of indemnity for the protection of the grantor:” Aronson v. Heymann, 56 Pa. Superior Ct. 501. Had Swayne, therefore, after the conveyance by Baldwin to Beattie, proceeded to collect his liens and Baldwin had been required to personally pay them, or any part of them, to the extent of the payment, Beattie would have been responsible to Baldwin under the implied covenant in the deed, as was the grantee in Greenspan v. Margolis, 70 Pa. Superior Ct. 373.

Mr. Justice Sharswood, for the Supreme Court, in Moore’s Appeal, 88 Pa. 450, thus interpreted a like provision: “They (the words ‘under and subject’) import that the vendee takes the land encumbered, and, at most, that so taking it at an agreed consideration which includes the encumbrance, he will indemnify the vendor to the extent of that consideration in the same manner as if it had been paid in cash and so applied at the time.” To the same effect are May’s Estate, 218 Pa. 64, and Faulkner v. McHenry, 235 Pa. 298.

It is evident from these interpretations that the holder of the encumbrance acquires neither right nor remedy under them. He is not a party to the conveyance, and the undertaking arises only by implication for the benefit and protection of the grantor, so that he may compel his grantee to do what he agreed to do — pay the encumbrances — because they represent part of the purchase money which he would otherwise have been entitled to receive in cash.

If Baldwin had conveyed to Beattie “under and subject” to the payment to the former-of the whole or a portion of the purchase money, an entirely different question would be presented. The grantee, in that event, would take title, not subject to the payment of liens already created and in existence at the time of conveyance, but upon condition that he pay the purchase money to his grantor. If he defaulted, the grantor could enforce payment by equitable ejectment: Eichelberger v. Gitt, 104 Pa. 64. In Schnyder v. Orr, 149 Pa. 320, a grantor was permitted to recover in ejectment against his grantee where the conveyance was made “subject to” certain existing judgment liens and the grantee failed to pay them. Referring to the clause in the deed, the court below said: “This clause created a lien upon the premises conveyed, and the grantee took the estate conditioned for the payment of these liens and the performance of the condition could be enforced by ejectment.” The judgment in favor of the grantor was affirmed, on appeal, without comment. That the conclusion reached by the court below was correct, in view of the previous decision in Eichelberger v. Gitt, 104 Pa. 64, there can be no doubt. The conveyance had been made in legal effect “conditioned” upon the payment of the existing judgment liens, but we are aware of no authority for the statement quoted that the clause referred to “created a lien upon the premises.” At most, it could not have resulted in a lien in favor of any one other than the grantor and enforceable only by him.

Our attention is called to the ease of Kensinger v. Smith, 94 Pa. 384, as authority for exceptant’s contention that the clause in the deed here under consideration created an equitable lien enforceable by ejectment by a party who furnished a portion of the purchase money and secured it by a judgment lien against the land conveyed, where the grantee had later conveyed to a third person. On the general proposition that a person lending money to a grantee with which to pay for the land purchased can recover in ejectment if the grantee fail to repay, that case is not, as we read it, supported by principle or by any subsequent case, important as the question involved is. It presents the anomaly of permitting a person who never had title to the land, and who never contracted to obtain title, to acquire the land in an action of ejectment because the grantee, to whom he had made a loan to assist in the purchase, failed to repay when the loan fell due. If, however, the conclusion announced in that ease be a correct statement of the law, it can have no application here, because Swayne furnished no part of the purchase money for Beattie at the time he purchased from Baldwin. He, Swayne, was then the holder of two liens against Baldwin’s land, which liens in their origin had no connection with the acquisition of title by Baldwin. They were taken into account, however, when Beattie acquired title, and then only as a present figurative payment of purchase money by Beattie to Baldwin, with, as the cases say, “a covenant of indemnity for the protection” of Baldwin, not for the protection of Swayne, the lien holder. Swayne was no party to the transaction; no promise was made by Beattie to him to pay the liens, and the clause in the deed gives him no remedy, legal or equitable.

We conclude, therefore, that Swayne has no claim upon the fund for distribution in preference to lien holders whose liens had been properly revived.

The exceptions to the report of the auditor are dismissed, the report is confirmed, and distribution is directed in accordance with the schedule attached to his report.

From Truman D. Wade, West Chester, Pa.


author: Brownson, J.

text:
    Filby’s Assigned Estate.

      Appeals — Supersedeas—Appeal bond — Second appeal — Acts of May 19, 1897, and June U, 1901.

    1. An assignee for creditors who takes an appeal In his individual capacity because of a surcharge made against him must, in order to make the appeal a supersedeas, enter a bond as required by the Act of May 19, 1897, P. L. 67.
    2. In such case the fact that he had before filed an official bond as assignee under the Act of June 4, 1901, P. L. 404, does not relieve him from filing the appeal bond.
    3. The Act of May 19, 1897, P. L. 67, which provides that no' appeal shall be a supersedeas unless perfected and bail entered within three weeks from the entry of the judgment or decree appealed from, is mandatory upon the court from which the appeal is taken, and that court has no discretion to modify its effect or to deny to a party in interest the right to insist on compliance with the order from which the appeal was taken.
    4. The fact that a prior appeal was taken within three weeks and was quashed without being tried on the merits does not authorize the lower court to treat as a supersedeas the second appeal, taken after the expiration of the three weeks from the date of the entry of the decree, and after the record has been remitted for the purpose of enforcing the decree of the court below.
    Rule to show cause why distribution of an assigned estate should not be made under an order from which an appeal has been taken. C. P. Washington Co., May T., 1916, No. 190.

      B. B. Barr, for rule; John C. JucCson, for respondent.
   Brownson, J.

On Aug. 14, 1919, George B. Drake filed his account as assignee for the benefit of creditors of W. L. Filby, exhibiting a balance in his hands of $1732.41. Exceptions were filed to this account, and it was referred to an auditor to pass upon the exceptions and make distribution. The auditor reported, making surcharges aggregating $1305.27, awarding to lien creditors $1087.50 as the net proceeds of real estate, and appropriating the remainder of the enhanced fund, $1950.18, to the payment of expenses and costs to the amount of $432.30, and to the payment of dividends awarded to unsecured creditors aggregating $1517.82. This court, on Jan. 31, 1921, entered a final decree sustaining in part exceptions to the auditor’s report, reducing the surcharges to the extent of sums aggregating $276.40, reducing correspondingly the awards made by the report to unsecured creditors, and confirming the report as so modified, and directing the accountant to make distribution in accordance with the modified report. After having taken an appeal to the Superior Court, at No. 134, April Term, 1921, thereof, which appeal was quashed on April 21, 1921, the accountant has entered a second appeal. The certiorari on the latter appeal was received and filed in this court subsequent to the return-day of the rule now before us (which was June 22, 1921), but preliminary to the entry of this appeal the accountant filed in the prothono-tary’s office on May 4, 1921, a bond in the sum of $1000, conditioned that the appellant “will prosecute this appeal with effect and will pay such sum as shall be found to be due to the estate by the fiduciary, and all costs and damages awarded by the appellate court or legally chargeable against him.” The National Bank of Claysville, a distributee, has, by exceptions to the bond and by a petition and rule to show cause, raised the question whether this second appeal operates as a supersede as so as to stay the payment of the sums of money which the distribution decree ordered the accountant to pay. This question, as presented at the argument, is divisible into three sub-questions: (a) Whether the filing of an appeal bond is necessary to cause this appeal to operate as a supersedeas; (&) whether the bond filed on May 4, 1921, conforms to the requirements of the Act of May 19, 189'7, P. L. 67; and (c) whether the appeal was taken and perfected in time.

Upon the first and second of these questions our views are that, as the appellant is appealing, not in a representative capacity, but in his personal capacity solely (Krodel’s Estate, 14 Dist. R. 417; Wesley v. Whiteside, 24 Dist. R. 745; see, also, Revell’s Estate, 12 Dist. R. 138), from a decree directing him to pay to creditors of the assignor certain moneys which he denies owing to the estate, his appeal falls within the provisions of section 6 of the Act of 1897, and the entry of security as therein specified is a prerequisite of a supersedeas, and this, notwithstanding the fact that he has heretofore filed an official bond as assignee under section 12 of the Act of June 4, 1901, P. L. 404, because that bond is not conditioned as provided in the Act of 1897 for such an appeal as this, and, therefore, section 15 of the latter act does not apply to this case; that the condition of this bond, although worded in accordance with section 11 of the act, embraces everything required by section 6 to be embraced in the condition prescribed by it, and, therefore, may in this particular be regarded as sufficient; but that, being in the penal sum of $1000, it is insufficient in amount to be a compliance with the requirements of section 6. As it may, perhaps, be, however, if a mistake has been made in fixing the amount of a bond intended to procure a supersedeas, that it would be a proper thing for the court, in the exercise of the powers given it by section 5, to afford the appellant an opportunity to give security in the proper sum (though see Locher’s Estate, 16 Dist. R. 787), we pass to the third sub-question.

It is provided in section 4 of the Act of 1897 that no appeal shall “supersede an execution issued, or distribution ordered, unless taken and perfected and bail entered in the manner herein prescribed within three weeks” from the entry of the sentence, order, judgment or decree appealed from. Here an execution which has been issued and a distribution which has been ordered are classed together and put upon the same basis.

The rule now before us is a rule to show cause why the accountant should not pay to the petitioner the distributive awards which the distribution decree of Jan. 31, 1921, ordered him so to pay, and why he should not also make payment of the costs which the same decree ordered to be paid out of the fund distributed. The rule raises the question whether this appeal, which was not taken and perfected within three weeks after Jan. 31, 1921, supersedes the “distribution ordered” by the decree of that date. The date of perfecting the appeal was, under the provisions of section 2 of the act, the date when the certiorari was filed in the court, which date was June —, 1921. The date of entering bail was May 4, 1921. Neither of these things was done within the three weeks, and the statute most explicitly declares that a “distribution ordered” shall not be superseded unless both things are done within that period. Nor, indeed, was any step in connection with the appeal taken till about four months after the decree. This statute is mandatory on us and we have no discretionary authority to relieve the respondent from its provisions and to deny to the petitioner the right, which the statute gives to it, to demand that the distribution decree be executed notwithstanding the pendency of the appeal.

Nor can we derive any such authority from the fact that the first appeal, which was taken within the three weeks, was quashed instead of being determined upon the merits. The statute makes no provision for obtaining a super-sedeas by means of a second appeal, taken after the quashing of the first and more than three weeks after the decree. The action of the Superior Court in quashing the appeal and remitting the record to us for the enforcement of the decree is conclusive upon us. It is not for us to review the action of that court in thus terminating the appeal instead of retaining it and permitting the correction of the errors of practice, whatever they were, which led to its quashing, or to undertake to put the appellant in a position which would be the equivalent of that which the appellate court has refused to permit him to occupy.

This conclusion makes it unnecessary to consider what would be “the extent necessary to preserve the rights of the appellant,” to which, under the provisions in the last sentence of section 16 of the Act of 1897, the appeal, if it operated as a supersedeas, would postpone payment in accordance with the distribution decree.

And now, Aug. 15, 1921, after argument and due consideration, the rule to show cause, granted on June 13, 1921, is made absolute at the cost of respondent, and it is ordered that the respondent make the payments therein specified.

From Harry D. Hamilton, Washington, Pa.


author: Prather, P. J.,

text:
    Leamy et al. v. Wildman.

      Mechanic’s lien — Striking off lien — Matters without the record — Fictitious trade name of plaintiffs — Act of June 28, 1917.

    1. A mechanic’s lien which is regular on its face will not be stricken oft for matters dehors the record.
    2. A mechanic’s lien will not be stricken off because the claimant had failed to comply with the requirements of the Fictitious Trade-Name Act of June 28. 1917, P. L. 645, where depositions are necessary to establish such fact.
    Rule to strike off lien for reasons appearing of record. C. P. Crawford Co., Sept. T., 1921, No. 2.

      Thomas & Thomas, for plaintiff; J. Lee Culbertson, for defendant.
    Nov. 7, 1921.
   Prather, P. J.,

Counsel for defendant supplemented his motion to strike off said lien for reasons appearing of record, with an additional averment of fact, “that said plaintiff had neglected or refused to comply with the provisions of the Act of Assembly of June 28, 1917, P. L. 645,” requiring the registration of persons or partners operating under an assumed or-fictitious name.

In support of this averment of fact, depositions were taken on behalf of defendant to the effect that the said plaintiff company had not complied with. the requirements of said act by filing in the proper office the certificate required.

The sole question for our consideration is whether an inquiry into the fact of such registration is permissible in the consideration of a rule to strike off for reasons appearing of record, and, therefore, whether depositions may b9 taken to supply any facts relied upon to support such a rule.

That, in the consideration of such a rule, the court is confined to what the record discloses is a simple statement of an ancient and uniformly accepted rule. The fact that the record relied upon, supplemented by some other record, discloses the irregularity complained of is not sufficient. In the case under consideration there is no complaint as to any irregularity appearing on the face of the lien, but it is urged that, when the facts are properly shown and made known by the taking of depositions, there appears an insuperable obstacle to the maintenance of plaintiff’s claim and lien. But, even if this contention is legally sound, is it now available in this proceeding? We think not.

In Mesta Machine Co. v. Dunbar Furnace Co., 250 Pa. 472, the Supreme Court, discussing the procedure to strike off a mechanic’s lien, said: “When a rule to strike off such claim is taken by an owner, depositions cannot be used by either side to show that the claim, though insufficient on its face, is in point of fact valid or invalid.”

A rule to strike off a mechanic’s lien must be determined by the record. See Burger v. S. R. Moss Cigar Co., 225 Pa. 400; Hiestand v. Keath, 229 Pa. 149; Dyer v. Wallace, 264 Pa. 169, 174.

In Burger v. S. R. Moss Cigar Co., where a contract between the owner and the contractor had been properly entered into and duly filed in the prothono-tary’s office, agreeing that no mechanic’s lien should be filed, and the lien, in violation of said agreement, was filed, and the Court of Common Pleas upon motion struck the lien from record, the Supreme Court said: “It was error for the learned court to strike the lien from the record. It is settled on reason and authority that a mechanic’s lien will not be stricken off which is regular on its face for matters dehors the lien. This rule was early established in this State and has been uniformly adhered to by this court. The right to a mechanic’s lien being entirely statutory, not only the right itself, but the method of enforcing it, must depend upon the statute, and must be pursued in strict compliance with the terms of the statute.” Citing Stoke v. McCullough, 107 Pa. 39, and quoting therefrom: “The claim is a specific lien under the statute, and the court has no power over it, except in the form provided by statute. A scire facias is the legal means of its enforcement, and either party may oblige the other to go to trial. If no scire facias be issued, the defendant may by rule proceed as if a scire facias had issued.”

And the court, continuing, said: “Matters dehors the lien can be made available to the defendant on a trial on a scire facias. They are matters of defence and necessarily can only be interposed as such on the trial under proper pleadings. A contract against liens in this case was not a part of the original contract between the owner and the contractor, and, hence, was not disclosed by the record of the lien. It could be made available, however, on the trial of a scire facias when offered as a defence to the plaintiff’s claim.” See Thirsk v. Evans, 211 Pa. 239.

In McVey v. Kaufmann, 223 Pa. 125, the contention being that the notice of the intention to file the lien, as required by the statute, was defective, and, therefore, that the lien should be struck off, the Supreme Court said: “The notice being no part of the lien, the only remedy for a defect in it is not, as counsel for the appellees contend, to move to strike it off, but defence maybe made on the trial that there was no right to file it, though regular on its face, just as such defence may be made if, as a matter of fact, the lien was filed too late or the labor or materials were not furnished. It is a substantive defence on a matter dehors the lien.”

Section 36 of the Act of June 4, 1901, P. L. 431, provides, inter alia, as follows : “In addition to the defences growing out of the sufficiency of the claim itself, or of the proof of the facts necessary to sustain it as a claim against the structure or other improvement, any defence which would defeat the action were it a personal one against the contractor to recover for the particular work or materials required to be done or furnished under the contract of the owner, . . . shall wholly defeat the claim.”

It, therefore, appears that the defence to this lien now interjected is not only premature, but unavailing in this proceeding.

Section 10 of this statute provides for the issuance of a scire facias upon said lien, and provides that the defendant in the lien may require the issuance of a scire facias within fifteen days after the notice has been served upon the claimant.

In Hiestand v. Keath, 229 Pa. 149, the Supreme Court said: “It will, therefore, be observed that the statute affords, by means of the writ of scire facias, a complete remedy for the claimant to compel payment of his claim, and it is equally apparent that the owner may, under the sections of the act referred to, at any time compel a speedy issuance of the writ, and may interpose any defence which will defeat the claim or relieve his property from the lien.”

We, therefore, are of the opinion that defendant’s rule to strike off the lien for reasons appearing of record should be discharged.

Now, Nov. 7, 1921, rule to strike off lien for reasons appearing of record is hereby discharged.

From Otto Kohler, Meadville, Pa.


author: Berger, J.,

text:
    Lancaster v. Lancaster.

      Divorce — Practice, C. P. — Amendment of libel — Desertion—Insufficient statement.

    1. A libel in divorce for desertion is insufficient which does not aver that the desertion was “without just or reasonable cause.” The mere averment of non-support is insufficient.
    2. Such a libel, as it fails to state any cause of action whatever, cannot be amended.
    3. Amendments at common law, independent of any statutory provision on the subject, are in all cases in the discretion of the court for the furtherance of justice.
    4. Even if an amendment could be allowed in such a case, it would not be granted without notice to the respondent in the manner in which service of the original libel was made.
    Petition to amend libel. G. P. Schuylkill Co., May T., 1921, No. 134.

      William L. Kramer, for libellant.
    March 20, 1922.
   Berger, J.,

This petition for leave to amend the libel in divorce was filed after publication of notice, in accordance with law, requiring the defendant to appear and answer. He has filed no answer, nor has any appearance been entered for him.

The only cause of divorce originally set forth in the libel is stated thus: “7. That your petitioner and respondent lived and cohabited as husband and wife in Lyons, New York, aforesaid, for about twenty years, and a succinct statement of the time and place and circumstances of the cause of divorce is as follows: And that, on the first day of October, A. D. 1918, the said respondent wilfully and maliciously deserted your petitioner and left her without any support from said date, thereby causing petitioner to support herself.” This statement of the cause of divorce is insufficient: Pierie v. Pierie, 7 Phila. 405; Sites v Sites, 23 Pa. C. C. Reps. 439. The libellant, seeking to substitute an alleged legal for an insufficient cause of divorce, prays the court for an amendment of paragraph 7 of her libel, so as to have it read as follows: “7. That your petitioner and respondent lived and cohabited as husband and wife in Lyons, New York, aforesaid, for about twenty years, and a succinct statement of the time and place and circumstances of the cause of divorce is as follows: And that, on the first day of October, A. D. 1918, the said respondent wilfully and maliciously deserted your petitioner and left her without any support from said date, thereby causing petitioner to support herself without just or reasonable cause.” If this amendment were allowed the libel would, nevertheless, fail to set forth a legal cause of divorce on the ground of desertion. The proposed amendment does not aver that the respondent deserted the libellant “without just or reasonable cause,” but that his wilful and malicious desertion of her has caused or required her “to support herself without just or reasonable cause.” Non-support, without more, is not sufficient to establish wilful and malicious desertion. See Dunn v. Dunn, March Term, 1921, No. 35, to be reported in Schuylkill Legal Record. Moreover, the libel is not drawn in conformity with the requirements of paragraph 1 of Rule 17 of our rules of court relating to divorce.

Assuming that the proposed amendment does properly charge desertion as a ground of divorce, it must be disallowed on other grounds. The defendant has had no notice of the petition to amend. The amendment prayed for is substantial and not merely formal; hence, it cannot be allowed without notice to the opposite party: Weiss v. Weiss, 16 Schuyl. Legal Rec. 162. In Clayburgh v. Clayburgh, 15 W. N. C. 365, it was held that the statutes of amendment do not apply to actions in divorce (such actions being in the nature of proceedings in equity), and, though jurisdiction is conferred by statute, “the proceedings are regulated by equity practice and by the rules and practice prevailing in the ecclesiastical courts. It (practice in divorce) adopts largely in its practice as its common law the law- of the English ecclesiastical courts.” In Perkins v. Perkins (decided March 28, 1885), 16 W. N. C. 48, in an opinion by Mitchell, J., later Chief Justice of our Supreme Court, it was said: “How far amendments should be allowed in divorce cases has been a vexed question in this State, and cannot yet be said to be authoritatively settled by judicial decision. A full and able presentation of the matter is made by Ewing, P. J., in Clayburgh v. Clayburgh, 15 W. N. C. 365.” In Clayburgh v. Clayburgh, an amendment of the libel, setting forth a new cause of divorce, was allowed, but the defendant was actually present in court and a copy of the amended libel was required to be served on him. Paragraph 10 of Rule 17, of our rules of court, regulating practice in divorce, requires the service of amendments of pleadings to be made on the opposite party. If the amendment prayed for were allowed, service of it would, nevertheless, have to be made in the manner in which service of the original libel was made. This would not advantage the libellant.

Since the amendment of a libel in divorce is governed by the common law and not by statute, the principle that at common law no amendment of the record can be made unless there is something to amend by, and that a declaration or complaint which wholly fails to state any cause of action whatever cannot be amended, as stated in 1 Encyclopedia on Practice and Pleading, 510, is applicable here. So, too, is the principle stated in 1 Bouvier’s Law Dictionary, 187, that “amendments at common law, independent of any statutory provision on the subject, are in all cases, in the discretion of the court, for the furtherance of justice.” We are of the opinion that we are without the power of amendment in this case for the reasons stated, and that the amendment prayed for, if it could be allowed, would not be for the furtherance of justice.

Petition for amendment dismissed.

From M. M. Burke, Shenandoah, Pa.