author: Chambers, J.,

text:
    Home Protective Savings & Loan Ass’n v. Woodson et ux.

      Charles A. Wallace and Rufus C. McKinley, for plaintiff.

      Gilbert E. Long, for defendants.
    July 14, 1930.
   Chambers, J.,

This case was heard before the court in banc on petition to stay writ of execution.

On January 17, 1925, the plaintiff loaned to defendants the sum of $1800, and to secure the same defendants executed their bond in the sum of $3600 and a mortgage on certain real estate of Patsy Anna Woodson, one of the defendants. The loan was to be repaid in instalment payments. Both the bond and mortgage contained provisions that a default in payment for six months made the entire debt due and payable at once. For the better protection of the plaintiff, insurance on the buildings on the mortgaged premises was taken out and a mortgagee clause placed thereon in favor of the plaintiff. On December 9, 1929, the buildings on the mortgaged premises were partially destroyed by fire. At that time the defendants were in arrears in payments sixty-four weeks. The fire loss was adjusted at $681.17. A draft for that amount dated December 30, 1929, payable to the order of Patsy Anna Wood-son and the plaintiff, was forwarded to J. F. P. Kennelly, the agent of the insurance company in this city. The said agent, Mr. Kennelly, started to repair the premises and had expended the sum of $45 when the plaintiff notified Mr. Kennelly that it was entitled to the insurance money and demanded the same. After some negotiations it was agreed between the parties that Mr. Kennelly would be reimbursed the sum of $45 expended by him on repairs to the property and that the insurance premium of $16 which had not theretofore been paid should also be paid to him and that the draft should be endorsed by Patsy Anna Woodson and turned over to the plaintiff, which was done, the draft being delivered to Rufus C. McKinley, attorney for the plaintiff, on January 13, 1930, and sent to the plaintiff and received by it on January 14, 1930. On January 13, 1930, the board of directors of plaintiff formally declared the defendants to be in default by being in arrearage on payments for more than six months; that their right to have the loan was determined; that the whole debt with interest, premium and fine was immediately due and payable, and proceedings were directed to be commenced for the collection of the whole amount. Notice of this action was given to Mrs. Wood-son, one of the defendants, by letter dated January 20, 1930.' On February 5, 1930, the plaintiff filed in this court a confession of judgment on the bond for the balance due under its mortgage and bond, to wit, $868.08, together with an attorney’s commission of 5 per' cent., and directed execution to issue. Execution was issued and on March 1, 1930, a petition to stay the writ was presented by the defendants.

The position taken by defendants is that the plaintiff, having received into its hands the amount paid by the insurance company and having appropriated it to its own use, had then more than sufficient moneys to pay up all arrearages owed by the defendants, and that at the time judgment was confessed there were no arrearages and the plaintiff, therefore, had no right to execution and that they are entitled to have the writ stayed and that no execution may issue on the judgment until further default be made. Instead of taking testimony to establish the facts a statement of facts was agreed upon. The facts heretofore stated have been in accordance with this statement of facts. From the agreed facts it appears, that in addition to the arrearages in payments, taxes have been accumulated upon the property in the following amounts: county taxes delinquent, $13.68; city, school and poor taxes to the aggregate amount of $91.48; that there has also been filed against the mortgaged premises a municipal claim for street paving to the amount of $304.92. It is contended on the part of the defendants that, while the bond and mortgage each contained provisions requiring all taxes and municipal claims to be paid when due and that failure so to do is a default, yet, since the plaintiff did not set these matters forth as a default at the time judgment was confessed, these matters of default are immaterial in considering the present question. In our opinion it is unnecessary to consider these matters in order to dispose of the matter before us.

The question now before the court, as far as we are able to determine, has not been decided by any of the courts in our state. The case most nearly approaching the one at bar we find in Farley v. Kelly et al., 24 Dist. R. 911. In that case Farley had purchased from Kelly a paper mill for $15,000, paying $2000 cash and giving a mortgage for the balance of the purchase money in the sum of $13,000. Payments of $2000 upon the principal were to be made annually until the last year, when $3000 was to be paid. The mortgage was given on December 2, 1913. On June 21, 1914, the premises were destroyed by fire. There had been no default on the mortgage. The mortgagors restored the property, while not in exactly the same form in which it had formerly existed, yet in a manner found by the court to render the premises as valuable, if not more so, than before the fire. Insurance on the premises had been carried in the sum of $12,000, with a mortgagee clause attached in favor of the mortgagees. The insurance loss was adjusted at $10,658.52. The money was deposited in a bank in the joint name of the plaintiff and defendant. The plaintiff brought his bill, praying that the insurance moneys be decreed a trust fund and be applied to the rebuilding and reinstatement of the mill property. The case was heard before Schwartz, P. J., and a very exhaustive opinion filed by him on the adjudication. We quote the following from his opinion:

“The insurance is to secure the debt. It is not the primary purpose to raise a fund, in case of fire, to pay the debt, but the real purpose is to secure the payment of the debt. The mortgagee takes the property as his security for the debt. The insurance policies are not intended to give him something above or in addition to the property. These policies are to supply so much of the property as may be destroyed by fire. The insurance money is a substitute and stands for the property destroyed. There is no more reason why the mortgagee should appropriate this money for his debt, unless there is a default on the mortgage, than there is to foreclose the mortgage against the property if there is no default.”

Under the facts as existing, the court holds that the insurance moneys should be decreed to be a trust fund to be applied upon the improvements made to the property. As authority for this position the court cites the following cases: Teutonia Fire Ins. Co. v. Mund, 102 Pa. 89; Gordon v. Ware Savings Bank, 115 Mass. 588; Fergus v. Wilmarth, 7 N. E. 508; Naquin v. Texas Savings and R. E. Ass’n, 67 S. W. 85; Connecticut Mutual Life Ins. Co. v. Scammon, 4 Fed. 263; Huey v. Ewell, 55 S. W. 606.

In the ease at bar, however, we have a much different set of facts from that set forth in Farley v. Kelly, supra. In this case there was a default. Payments were in arrears at the time of the fire for a period of sixty-four weeks, more than twice the time permitted by the bond and mortgage. There has been no restoration of the property. There have been no payments made to cover the arrearage on the part of the defendants. No moneys have come into the hands of plaintiff except the proceeds from the insurance. When the plaintiff received the money from the insurance, it applied it upon the principal debt and not to arrearages. This was proper, the purpose of the insurance being to protect the security: Teutonia Fire Ins. Co. v. Mund, 102 Pa. 89; Gordon v. Ware Savings Bank, 115 Mass. 588; Naquin v. Texas Savings and R. E. Ass’n, 67 S. W. 85. By so applying it, the plaintiff is in the same position as it was before the fire. It has the property partially destroyed plus the insurance in its hands as security for its debt. The defendants are still in arrears. The arrearages make the entire debt due and owing and the plaintiff would have the right to proceed for judgment and execution. Had plaintiff desired to apply the money to the payment of arrearages and had done so, then there might be merit in the contention of the defendants, but the affidavit of claim filed with the praecipe shows the application of the money to the principal debt. The letter to Mrs. Woodson notifies her that it has been so applied. The defendants now ask the court, in the face of this, to apply these moneys to the payment of arrearages. This we feel the court is unable to do; that such a course would be inequitable. It would be in effect compelling the plaintiff to apply its security to the payment of interest and current indebtedness and thereby reducing its security. As we see it, at the time of the confession of the judgment the situation of the parties was exactly as it had been immediately after the fire. The defendants were then in arrears; the property had been partially destroyed and the plaintiff had the right to whatever was due under the insurance policy to hold in lieu of that part of its security which had been swept away by the flames; the securing of that money and applying it to the debt did not alter the situation; at the time of the confession of judgment and the issuing of the writ of execution the payments were still in arrears and the property had not been restored.

In accordance with the foregoing opinion, we, therefore, make the following

Order.

Now, July 14, 1930, the rule issued March 1, 1930, to show cause why the writ in this case should not be stayed is discharged and the sheriff is directed to proceed with the execution of the writ.

Prom William McElwee, Jr., New Castle, Pa.


source: Caselaw Access Project

author: Chase, J.,

license: Public Domain

text:
    Zolack v. State Workmen’s Insurance Fund et al.

      D. Edward Chaplin, Peter P. Jurchak and Geo. S. Dluzansky, for plaintiff.

      Ralph H. Behney, for defendant.
    Oct. 22, 1930.
   Chase, J.,

This issue is before the court on an appeal from the findings of the referee as to the facts, and the judgment rendered by the said referee and affirmed by the Workmen’s Compensation Board, the exceptions being set forth as follows:

1. The findings of the Workmen’s Compensation Board are not supported by sufficient competent evidence.

2. The board erred as a matter of law in affirming the award of the referee.

3. The board erred as a matter of law in its interpretation of the Act of Assembly of April 13, 1927, P. L. 186, being an amendment to the Workmen’s Compensation Act of 1915.

4. The board erred in failing to find and hold that the claimant’s petition for compensation was barred under the provisions of'the amendatory Act of-April 13,1927, P. L. 186.

As to the first exception there need be no discussion, an examination of the testimony clearly disclosing there was ample testimony on which the referee could make his findings of fact, as he so found.

As to the second, third and fourth exceptions these exceptions involve but one question, whether or not the provisions of the amendatory Act of April 13, 1927, P. L. 186, apply to the findings of fact so that this action could not be sustained because it was not brought within the period of time as provided by this amendatory act.

The records show that this compensation claim resulted from an injury while the claimant was employed by the Bulah Shaft Coal Company, whereby, on Feb. 19, 1927, an agreement for payment of compensation to the claimant was approved; that on May 24, 1927, a petition for termination was filed by the defendant; on May 28th, notice of petition; May 28th, assignment of petition to Referee Snyder; June 1st, an answer filed; June 16th, hearing before the referee at Philipsburg; June 20th, order of referee modifying agreement; Jan. 7, 1928, petition for review filed by claimant; Jan. 10th, notice of same; Jan. 16th, answer filed; Feb. 7th, hearing before Referee Snyder; Feb. 28th, order of referee dismissing petition for review; March 12th, appeal filed; May 4th, opinion of board affirming disallowance; Sept. 7th, petition for reinstatement filed; Oct. 4th, order of referee dismissing petition for reinstatement; Oct. 9th, appeal to the board from order; Dec. 13th, board dismissed petition, affirming referee; Jan. 17, 1929, appeal to the Court of Common Pleas of Clearfield County; May 28th, the Common Pleas Court reversed the board and directed it to proceed in accordance with the findings of the court.

The court reversed the board on the interpretation of the amendatory Act of 1927, which act is before the court on this appeal for construction, on the ground that, although the act was procedural in its nature, the act was not retroactive and could not be treated as such in so far as it would affect injuries caused prior to-its passage. The conclusions of law reached by the court at that time, which caused this subject to be sent back to the referee to take testimony and determine whether the facts warranted the granting of the petition and compensation, have since been determined by the Superior Court, in the case of De Joseph v. Standard Steel Car Co. et al., 99 Pa. Superior Ct. 497, and in the case of Johnson v. Jeddo Highland Coal Co., 99 Pa. Superior Ct. 94, wherein the Superior Court states: “Section 413 of the Act of June 26, 1919, P. L. 661, as amended by the Act of 1927 [P. L. 186] refers to two distinct classes of cases, for the review, modification, etc., of compensation agreement, viz: (1) where the agreement was procured by fraud, coercion or other improper conduct of a party or was founded on a mistake of law or of fact; (2) upon proof that the disability of an injured employee has increased, decreased recurred or has temporarily or finally ceased, or that the status of any dependent has changed.” It was stated further: “The second class relates to changes that have occurred in the employe’s physical condition since the compensation agreement was entered into or terminated; the first class does not.” And, further, that the amendatory Act of 1927, under discussion, relates only to the second class and has no effect on applications based on fraud, coercion, mistake, etc., of law or fact embraced within the first class.

With that statement of the effect of the Act of 1927 the court, in the instant proceeding, must determine whether the facts fall within the first class, as above referred to, wherein the amendatory Act of 1927 does not apply or to the second class of cases wherein the Act of 1927 has application and would prevent the filing of the application herein because of not being brought within the time required by the said amendment of 1927. The record discloses that Dr. W. S. Brian, witness for the complainant, and the doctor to whom the claimant herein went for treatment, in reply to the question “What was his diagnosis when he treated the claimant in January, 1927?” answered: “Well, at that time I rather thought it was a simple sprain, and when it did not give way to the ordinary treatment I changed my mind about it.” And, further: “Q. Did you make any report to a representative of the State Workmen’s Insurance Fund that the claimant was able to return to work before 1927? A. I may have.”

It does not appear in this testimony whether the doctor changed his mind as to the nature of the injury, but it was indicated that Dr. Brian didn’t reach the conclusions as to the extent of the injury that he now has until he made an examination on Oct. 7, 1929. On page 3 of the testimony, speaking of an examination made on that date, in reply to the question as to what he found at that time, after narrating his findings, the doctor stated: “My diagnosis is a portion of internal semi-lunar cartilege.” The doctor also testified that he and Dr. Yount, of Pittsburgh, made a diagnosis and that he and Dr. Yount substantially agreed as to the trouble. Dr. Brian testified, page 7, that ordinarily a condition such as he had found in this man’s injured knee in 1927 would take about six weeks, at the outside, to heal. Dr. R. S. Magee, witness for the defendant, testified that he examined the claimant on June 13,1927, Nov. 29, 1927, Feb. 11,1928, and at the time of the last hearing, Oct. 29, 1929. In answer to a question: “What were the findings of your original examination, doctor?” the doctor said in part, after describing what he found, “We didn’t consider it was a dislocated semi-lunar cartilege from the fact that the knee didn’t lock, which in our experience usually happens if anything comes between the head of the femur and tibia.”

Dr. James O. Wallace, who both the counsel for the claimant and appellant state is an outstanding doctor as to injuries of this character under discussion, made an examination on Oct. 24, 1929, and gave a statement of his examination, what he found, and the history of the case. He testified, page 19, in answer to the question, “Your diagnosis of this case is a rupture of the internal semi-lunar cartilege?” A. “Yes, and further, that it was due to the injury, etc.” With this evidence before us, it seems clear that this particular case falls under the class to which the Superior Court has said the amendment of 1927 has no application. It cannot be seriously disputed that Dr. Brian’s and Dr. Magee’s conclusions as to the extent of the injury was a mistake; that the conclusion as to the nature of the injury, and the ‘one which has been adopted as the fact by the referee, as to the extent of the original injury, is of a much more serious nature and consequences than was determined by said doctors; that the condition of the claimant is not an aggravation of an injury found to exist, as diagnosed by these doctors, so that the evidence, or finding of fact from the evidence, which, as we have said, has ample testimony to sustain it, brings this case, as we view it, squarely under the exceptions to which the amendatory Act of 1927 has no application. The claimant’s petition for reinstatement was on the grounds that it was an aggravation; while, of course, if the evidence discloses that the claimant’s condition was the result of an aggravation the claim would be barred by the amendment, the facts disclosing that it was not an aggravation but a condition due to the original injury or the natural ordinary result of the original injury, as discovered subsequently, and there being no way of the claimant determining this fact except by those skilled in determining the extent of injuries, the petition should not be dismissed on account of the form, the courts having repeatedly held that the technical rules of common-law pleading do not apply to proceedings of this nature, and that the main purpose of the law is to have such controversies determined upon the facts and not by technical pleadings. See Gairt v. Curry Coal Mining Co., 272 Pa. 494; Davis v. Davis, 80 Pa. Superior Ct. 843. Therefore, the court will make the following order:

Now, Oct. 22,1930, this appeal from the findings of fact, conclusions of law, and award as made by the referee and affirmed by the Compensation Board, is dismissed, at the cost of the petitioner, and the award as made by the referee and affirmed by the Compensation Board is hereby affirmed; judgment to be entered upon the award upon the attorney for the claimant presenting a motion in proper form for the amount of the award.

From John M. Urey, Clearfield, Pa.


author: Broomall, J.,

text:
    Happold v. Espenship et al.

      William D. Stewart and J. Eugene Walker, for plaintiff.

      Walter R. Faries and V/illiam S. Sykes, for defendants.
    July 18, 1930.
   Broomall, J.,

Statement of pleadings and issues involved.

1. The bill in the above case was filed June 4, 1928. An answer was filed by defendants Espenship and wife on July 27, 1928. No answer was filed by defendant Harvey, recorder. Replication was filed October 3, 1928. Hearings on bill and answer were held on March 13, 1929, and June 4, 1929.

2. Plaintiff and defendants Espenship and wife entered into a written agreement for the sale and exchange of their respective properties, under which said defendants paid to plaintiff $500 as hand money. The agreement was not carried out within the time limit in the contract, and thereafter the defendants, Espenship and wife, had the agreement recorded in this county. The plaintiff in this action seeks to have the agreement canceled and stricken from the record, and the defendants, Espenship and wife, request an order that the hand money be returned.

Findings of fact.

1. Plaintiff and defendants Espenship and wife, under date of April 25, 1925, entered into a written contract whereby the said defendants paid the plaintiff the sum of $500 as hand money, and the plaintiff agreed to convey to the defendants, Espenship and wife, certain premises therein described in exchange for certain premises therein described to be conveyed by said defendants to the plaintiff, settlement to be made within thirty days, time being of the essence of the contract. The hand money paid was to be forfeited as liquidated damages in the event of the failure of the defendants to make settlement within the time named. Certain mortgages on the property to be conveyed by the plaintiff to the said defendants were to be negotiated by the plaintiff without expense to the defendants.

2. The contract of April 25, 1925, was acknowledged on the date of its execution, the acknowledgment was certified to by the officer taking the same on May 27, 1925, and was left for record in this county by the defendants, Espenship and wife, on May 28, 1925, after they had notified the plaintiff of the rescission of the contract on account of his failure to comply with the same within the time therein limited. The contract was recorded in this county in deed book 607, page 404, etc.

3. The plaintiff at the time of settlement, to wit, on May 25, 1925, did not tender to the defendants, Espenship and wife, a deed for the property to be conveyed by him, nor any deed to be executed by the defendants, Espenship and wife, for the property to be conveyed to the plaintiff, nor did he have the papers prepared for the mortgages provided for in the contract of April 25, 1925.

4. On several occasions prior to May 25, 1925, the plaintiff, in answer to inquiries from the defendants, Espenship and wife, advised them that he would be unable to complete the contract by May 25, 1925.

5. There was no agreement by the parties extending the time for the exchange of properties as arranged for in the contract of April 25, 1925.

6. The defendants, Espenship and wife, either on May 25th or May 27th demanded of the plaintiff that he perform his part of the contract of April 25, 1925; and upon being advised by him that he was unable to do this they notified him of their rescission of the contract of April 25, 1925, and demanded the return of the $500 hand money paid to the plaintiff. The return of this money was refused by the plaintiff, and thereafter, on May 28, 1925, the defendants, Espenship and wife, filed the contract of April 25, 1925, for record in this county.

7. In May, 1926, prior to the institution of the present action, the defendants, Espenship and wife, brought suit against the plaintiff in the Municipal Court of Philadelphia, to No. 1154, May Term, 1926, to recover the amount of the hand money with interest thereon from the plaintiff.

Conclusions of law.

1. The plaintiff was in default under the terms of the contract of April 25, 1925.

2. The defendants, Espenship and wife, were not in default under the terms of said contract.

3. The defendants, Espenship and wife, having rescinded the contract of April 25, 1925, as they were justified in doing, should not thereafter have left the said contract for record.

4. The contract of April 25, Í925, should be canceled and declared null and void.

5. The plaintiff should pay to the defendants, Espenship and wife, the hand money heretofore paid him, to wit, $500, with interest thereon from May 25, 1925, together with the costs of that proceeding.

6. The defendant, Harvey, the recorder, upon payment of his proper charges therefor and the production of the certificates set forth in the decree nisi, should note upon the record of said contract that the same is canceled by virtue of the decree in this proceeding.

7. The costs of this proceeding should be paid by the defendants, Espenship. and wife, but no witness fees should be taxed by either party hereto, each of the parties paying their own witness fees.

Discussion.

The agreement plainly provides that the plaintiff shall convey his property to the defendants, Espenship and wife, and at settlement said defendants were to convey their property to him. The plaintiff had procured the necessary financing within the time fixed for settlement, but had none of the papers in connection therewith prepared, and he' neither offered to make settlement nor to tender a deed, and he had prior thereto notified the defendants, Espenship and wife, that he would not be ready on May 25th; and, in view of this notice, they were not in default in not having any of the papers prepared themselves. The defendants, Espenship and wife, contended that the plaintiff was to prepare all the necessary papers, which he did not deny, and, in fact, he did prepare them for the tender which he made on November 6, 1925. As the contract provided that time should be of the essence thereof, it is too clear for argument that the tender- on November 6, 1925, was too late. It does not even come within the line of cases where there is a tender within a few days, or whether there is an extension of time by the acquiescence of the parties. Neither can the plaintiff, under such circumstances, be held to say that Espenship and wife should have tendered performance when the plaintiff was not in a position to perform.

Defendants Espenship and wife having a suit pending in the Municipal Court of Philadelphia County as of No. 1154, May Term, 1926, for the recovery of the hand money paid under the contract of April 25, 1925, they ask that we decree in this proceeding a return of that hand money with interest. In the briefs filed both parties urged the court to dispose of all the questions involved; and, in view of this and the authorities cited below, we feel that we have judisdiction herein to end the whole controversy between the parties.

Equity has jurisdiction, when it once attaches, to round out the whole controversy (Epstein v. Ratkosky, 283 Pa. 168, 174); it will decree the return of hand money (Bashford v. Land Co., 295 Pa. 560); it will decree specific performance of a receipt for hand money complying with the statute of frauds without the formality of an agreement of sale provided for in the receipt (Schermer v. Wilmart, 282 Pa. 55); and it will direct that a third person be brought in by amendment as a party to the proceeding to receive money where necessary to conform with the decree (Miron v. Percheck, 279 Pa. 456). The theories involved are that, “he who seeks equity must do equity,” and “equity having assumed jurisdiction will dispose of the entire controversy to prevent unnecessary litigation:” Wally v. Wally, 286 Pa. 413, 417, and cases there cited.

That the recording of the contract of April 25, 1925, constitutes a cloud on the plaintiff’s title is, we think, perfectly clear: Octoraro Water Co. v. Garrison, 271 Pa. 421; Reilly v. Magee, 272 Pa. 406; Goldstein v. Markovitz, 276 Pa. 46; Shapiro v. Kazmierski, 283 Pa. 242.

And where the contract has been rescinded and is no longer capable of specific performance, it is proper that this cloud should be removed. See four cases last above cited.

As the defendants, Espenship and wife, had rescinded the contract, there was no good purpose to be served by having it recorded; and, in view of this, we think it is proper that the costs of the present proceeding should be imposed upon them. If the plaintiff had promptly returned the hand money, as he should have done when he was unable to comply with his contract, this controversy would not have arisen;' and, in view of this, we think that he should bear the expense of his own witnesses.

Decree nisi.

And now, July 18, 1930, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows:

That the plaintiff pay to said defendants, Espenship and wife, the sum of $500, with interest from May 25, 1925, together with the costs in the proceeding to No. 1154, May Term, 1926, in the Municipal Court of Philadelphia County, and that upon such payment being made the contract between the plaintiff and the defendants, Espenship and wife, of April 25, 1925, is hereby canceled and declared null and void, and that thereupon, further, the said defendants, Espenship and wife, shall mark the proceeding in said Municipal Court of Philadelphia County satisfied of record; and defendant Harvey, recorder, shall, upon receipt of a certified copy of this decree, together with a certificate from the defendants, Espenship and wife, that the said sum, with interest and costs as aforesaid, have been paid and satisfaction noted as directed, mark the record of said contract in deed book 607, page 404, etc., canceled by virtue of this proceeding upon payment of his proper charges therefor; and the said defendants, Espenship and wife, shall pay the other costs of this proceeding, except the costs of plaintiff’s witnesses.

The prothonotary is directed to notify counsel for all parties of the filing of this decree nisi, which shall become absolute unless exceptions are filed thereto and to the findings of fact and conclusions of law within the time provided by the Rules of Equity Practice.

From William R. Toal, Media, Pa.


author: Fleming, P. J.,

text:
    Commonwealth ex rel. Fye v. Meeker.

      A. C. Dale, for plaintiff; N. B. Spangler and Ivan Walker, for defendant.
    July 22, 1930.
   Fleming, P. J.,

The suggestion of the relator avers that Martin Meeker was elected to the offices of Tax Collector, Assessor and Registration Assessor for the Township of Burnside on November 5, 1929, at an election whereat the said Martin Meeker served as a clerk to the election board. It is contended by the relator that such is contrary to the express privisions of the Act of June 2'6, 1895, P. L. 392, which provides, inter alia, “that no inspector, judge or other officer of any such election shall be eligible to any office to be then voted for except that of an election officer.”

Counsel for Martin Meeker cites Com. ex rel. Biles v. West, 19 Dist. R. 269, wherein a distinction is drawn between general elections and township elections, holding that the Act pf June 26, 1895, supra, applies only to general elections. It is to be noted that when this case was decided (1909) a distinction did exist between general and township elections, but that such distinction no longer exists. The February or township election has been abolished and all offices are filled at the general election prescribed by article eight, section two, of the Constitution of the Commonwealth of Pennsylvania. It is to be further noted that the Act of June 13, 1840, P. L. 683, section 2, cited by the court in Com. ex rel. Biles v. West, supra, in support of its distinction between general and township elections, was held in Com. v. McCormick, 18 Dist. R. 641, to be in conflict with article eight, section fifteen, clause two, of the Constitution, providing that an election officer shall not be eligible to any office to be filled at an election at which he shall serve, and that, therefore, an election officer was not eligible as a candidate for supervisor. We are, therefore, of the opinion that were this action properly brought, we should be compelled to hold that Martin Meeker’s election to the several offices was invalid.

However, the action is not properly before us and we are without jurisdiction to remove Meeker in this proceeding. It is not contended that the relator, H. H. Fye, has any personal interest in the offices claimed by Meeker. He is a taxpayer of Burnside Township, but was not a candidate for the several offices with which we are concerned. In Com. ex rel. Gast v. Pfromm, 255 Pa. 485, 491, the present Chief Justice says:

“We may summarize the controlling rules of law and our conclusions in the case at bar thus: When it is suggested that one is usurping a public office, the Quo Warranto Act of 1836, supra, makes provision for two distinct proceedings, the first in the interest of the public, and the second to protect any private individual who may have a special grievance. If one, without authority of law, holds a public office, and thereby keeps out of it another who is entitled thereto, he not only commits a public, but also a private, wrong, and the individual aggrieved may have a writ in the name of the Commonwealth to secure his rights; but where a public wrong alone is to be redressed, that is to say, where the only question to determine is whether the person in possession of the office is holding it without authority of law, either the attorney general or the district attorney is the proper relator. Here there was no private grievance to be redressed against the appellant; hence, the public prosecutor alone was the proper relator (Gilroy et al. v. Com. ex rel. Dis. Att’y, 105 Pa. 484), and error was committed in attempting, under the Act of 1836, supra, to force Mr. Pfromm upon the record at the complaint of one who laid no claim to the office occupied by him.”

Clearly, Meeker cannot be forced upon the record at the suggestion of Fye, who makes no claim to the offices in question. Fye has clearly shown the existence of a public wrong, which the district attorney should note, and by a proceeding properly brought duly remedy. We are without jurisdiction, however, to remove Meeker upon the suggestion of Fye, a person not claiming such offices in the instant case.

And now, July 22, 1930, the demurrer filed by Martin Meeker is sustained and writ dismissed, with leave to the district attorney to proceed de novo in a manner consistent with this opinion. Costs to be paid in this proceeding by H. H. Pye, relator. Prom S. D. Gettig, Bellefonte, Pa.


author: Patterson, P. J.,

text:
    Brubaker et al. v. Blair County Poor District.

      George G. Patterson, for plaintiffs; Hays W. Culp, for defendant.
    July 16, 1930.
   Patterson, P. J.,

The plaintiffs being lower riparian owners of land through which Spencer Run flows in the Township of Allegheny, Blair County, Pennsylvania, filed their petition for appointment of viewers to assess damages for the taking and appropriating of the water of said run by defendant, as provided by the General Poor Relief Act of May 14, 1925, P. L. 762, section 707. The viewers visited the premises, held hearings and made a report of their findings to the court on January 13, 1930. Exceptions were filed thereto, and by agreement of counsel representing all parties in interest the court referred said petition back to the viewers for more specific findings of fact and conclusions of law, the decree as agreed to and submitted by counsel being as follows:

“Now, March 3, 1930, by agreement of George G. Patterson, counsel for plaintiffs, and Hays W. Culp, counsel for defendant, the exceptions to the above reports in the above stated cases are sustained, and the court does hereby direct that the reports of viewers in the respective cases be referred back to said viewers, with directions to amend the several reports by preparing and filing supplemental reports in each case, which shall set forth in brief and concise paragraphic form material findings of fact and conclusion of law, together with a statement of the amount of damages or benefits assessed. It being agreed by counsel that the viewers need not attach plans showing the properties affected, and it is also agreed that this decree shall be filed to each of the above numbers with the same effect as if a separate decree had been made in each case. The said viewers are directed to file such supplemental reports within fifteen days from the date hereof.”

The supplemental report was duly filed and confirmed nisi March 24, 1930, to which exceptions (to be considered as filed to each case in accordance with the above quoted decree) were filed April 28, 1930.

In the first exception defendant complains that the viewers failed to find that the waters of Spencer Run had been appropriated more than thirty years before the filing of this petition. In the second exception defendant states that the viewers erred in finding “that the defendant has not condemned the water of Spencer Run, nor has defendant acquired title to the water by grant.” In the third exception defendant avers that the viewers erred in finding as a fact that “the defendant has been using one-third of the present supply for more than twenty-one years.” Concluding paragraphs contained in the exceptions are to the effect that the viewers’ conclusions of law are in error and that they should have found as a fact that all of the water of said stream was appropriated more than thirty years before the filing of the petition, and that the report, therefore, is not based upon the facts as proven and admitted by the parties.

These exceptions and averments of error will be considered together. From our examination of the original and supplemental reports and the exceptions filed thereto we find that the defendant charges the viewers with failing to find as a fact its contention that the defendant has the rightful ownership of the waters of Spencer Run by prescription. That is, that they have been in continuous, peaceable, adverse and uninterrupted possession of all said waters for more than twenty-one years before the filing of this petition. We know of no rule, however, that permits a court of common pleas to direct the finding of any particular fact by a board of viewers. To do so would be to usurp the power and authority of such viewers. In fact, it would nullify the very purposes for which the viewers are appointed.' The viewers in the present ease have found that one-third of the flow of this stream is now and has been owned by right of prescription by the defendant, but that a two-thirds part of the stream has never been acquired by prescription, grant or condemnation. It appears that the defendant appropriated a part of the water as early as 1894, but that in 1916 and 1917 and again in 1927 defendant county poor district constructed further improvements to the then existing water plant, as a result of which practically all of the waters of said run are now consumed by the defendant. Where either party is dissatisfied with the findings of fact or the report of viewers, the proper procedure is either to file exceptions or to take an appeal, or both.

Section 709 of the Act of May 14, 1925, P. L. 762, 776, provides as follows:

“Upon the filing of the report of said viewers, of any two of them, either party may within thirty days thereafter file his, her or their appeal from the said report to the court, and after such appeal either party may put the cause at issue in the form directed by said court, and the same shall be tried by said court and jury, and after final judgment either party may have an appeal to the Supreme or Superior Court, in the manner provided in other cases. ... If any exceptions be filed with any appeal to the proceedings they shall be disposed of, and if allowed, a new view shall be ordered and if disallowed, the appeal shall proceed as before described.”

The Act of June 23, 1911, P. L. 1123, section ten, provides as follows:

“The proceedings by way of exception, appeal, and otherwise, upon filing reports of said board of viewers, shall be in all respects the same as those provided under existing laws in the case of appeals from viewers, reviewers, re-reviewers, juries of view, road juries, or commissioners of view.”

These exceptions cannot be sustained, for the reason that findings of fact by a board of viewers are not reviewable by a court upon exceptions either under the old law or the Act of June 23, 1911, P. L. 1123. Testimony taken by viewers is not a part of the record and cannot be considered in a review by the court: West Liberty Avenue, 70 Pa. Superior Ct. 348; Tionesta Township Road, 44 Pa. C. C. 685; Ohio and Ross Township Road, 166 Pa. 132.

Where interested parties are not satisfied with the findings of fact contained in the report of viewers they have a right within a limited time to an appeal to the court of common pleas, where the cause will be tried before a jury de novo.

In the case of Punxsutawney Borough v. Donahue, 91 Pa. Superior Ct. 85 (quoting from the syllabus), it is held: “In such proceeding the question whether the petitioner was entitled to damages was not properly before the court. The question could only be decided upon an appeal to the board of viewers.”

The extent of the prescriptive right was the only legal question before the viewers and at present before the court. The plaintiffs concede that the defendant district originally acquired an adverse right to about one-third of the water and this contention is upheld by the viewers. The viewers found as a fact that the remaining portion of the water was appropriated in later years and within a period of twenty-one years and that, therefore, as a matter of law no prescriptive right has ever accrued to defendant district for the part taken within a period of twenty-one years. It is the contention of the defendant district that by taking a part of the water by adverse user in the years 1894 and 1898 the use of all the stream was acquired. The viewers refused to accept this conclusion of law. And in this respect we believe the report to be correct. We know of no rule of law which would give an adverse user of one-third of the stream the right to claim the whole of the flow of said stream by prescription at any time after the original taking. The rule of law is that an adverse taking applies only to that portion of the property, whether it be land, easement, right of way, er water right, which has been actually appropriated and used for a period of twenty-one years. And the use must be uninterrupted, exclusive, hostile and definite.

In Messinger’s Appeal, 109 Pa. 285, 289, it is held:

“The time from which the period is to be reckoned in computing the duration of a continuous enjoyment is when the injury or invasion of the right begins, and not the time when the party causing it began that which finally creates the injury.”

The Superior Court, in Irving v. Media, 10 Pa. Superior Ct. 132, and the Supreme Court, in the same case, reported in 194 Pa. 648, construe the law in a case very similar to the one now under consideration in the following language (quoting from the charge of the trial judge in 10 Pa. Superior Ct. 146):

“I can only say that if you find that the defendants take no more water from this stream than they took twenty-one years ago, then it would be a defense. If you find that they have taken more water and by different means and more powerful pumps, and by an extension of their works, than they did twenty-one years ago, and that has resulted in an injury to the plaintiff, then it is only a defense so far as a reasonable allowance should be made for what they took twenty-one years ago is concerned.”

And later, President Judge Rice, speaking for the court, added: “We are of opinion that this was a substantially correct statement of the law applicable to the facts of the case being tried.”

The matters complained of in the several exceptions to the findings of fact and conclusions of law as contained in the supplemental report of the viewers are matters that could have been tried upon appeal from the award of viewers by either of the parties and are not properly before the court in the form of exceptions. The exceptions are, therefore, dismissed, and the findings of fact and conclusions of law by the board of viewers and their supplemental report are hereby approved and confirmed absolutely. This opinion and decree to be filed in each case with the same effect as if a separate decree had been made in each case as provided in agreement of counsel dated March 3, 1930, and fully set forth in the first part of this opinion.

Prom Robert W. Smith, Hollidaysburg, Pa.


author: Cummins, J.,

text:
    Commonwealth v. Levandosky.

      G. Ashton Brownlee, Assistant District Attorney, for Commonwealth.

      J. Albert Reed, for defendant.
    September 29, 1930.
   Cummins, J.,

Defendant was indicted for malicious mischief, it being charged that he maliciously killed a dog. The case is before the court in banc upon motion to quash, defendant contending that under the Dog Law of May 11, 1921, P. L. 522, 528, defendant could not be indicted but only proceeded against summarily.

Section twenty-three of the Act of May 11, 1921, provides that it shall generally be unlawful to kill a licensed dog, and section thirty-six of this act, as amended by the Act of May 14, 1929, P. L. 1713, 1717, provides that, for a violation of the act, the offender, “upon conviction in a summary proceeding before a magistrate, alderman, or justice of the peace, shall be sentenced to pay a fine of not less than five dollars nor more than one hundred dollars, and costs of prosecution, or to undergo imprisonment not exceeding thirty days, or both.”

The Commonwealth’s contention is that the offense charged was indictable at common law (which contention would appear to be supported by the weight of authority: State v. Sumner, 2 Ind. 377; State v. McDuffie, 34 N. H. 523; Julienne v. Jackson, 69 Miss. 34; Nehr v. State, 35 Neb. 638; Com. v. Cramer, 2 Pearson, 441, 443; 1 Trickett on Penna. Criminal Law, 189) and that defendant could still be so prosecuted.

The act, however, having made the killing of a dog a summary offense triable before a magistrate and punishable by a milder punishment, has thereby taken this offense out of the class of crimes for which an indictment will lie: Com. v. Railing, 113 Pa. 37, 45, 46; Railing v. Com., 110 Pa. 100, 105; section 183 of the Criminal Code of March 31, 1860, P. L. 382, 426; Com. v, Evans, 13 S. & R. 426, 430; Com. v. Jackson, 15 Gray (Mass.) 187, 188; Robbins v. State, 8 Ohio St. 131; Com. v. Johnson, 5 D. & C. 769, 770; Com. v. Winkelman, 12 Pa. Superior Ct. 497, 519.

And now, September 29, 1930, indictment quashed.

Prom Harry D. Hamilton, Washington, Pa.


author: Glass, J.,

text:
    Bolay v. Philadelphia.

      M. J. McEnery, for plaintiff.

      H. Eugene Heine, Assistant City Solicitor, for defendant.
    January 26, 1931.
   Glass, J.,

This is a suit brought by the plaintiff, a patrolman of the City of Philadelphia, against the said city, for the recovery of salary during the period of his suspension from duty. It was tried by a judge without a jury, and resulted in a finding for the plaintiff in the sum of $1801.10, covering the entire period of his suspension, to wit, from November 1, 1928, to the date of his restoration to duty, September 4, 1929. The finding of the trial judge was based upon the following material facts:

The plaintiff, Warren. S. Bolay, a police officer of the City of Philadelphia since his appointment on July 12, 1911, was suspended on November 1, 1928, by the Director of Public Safety for “conduct unbecoming an officer, in that he had been arrested on the charges of bribery, extortion and conspiracy in connection with a lottery game, as a result of which he was held in $2500 bail for court at a hearing before Judge Edwin O. Lewis, sitting as a committing magistrate.” The plaintiff received a copy of the specifications of the charges preferred against him by the Civil Service Commission on November 20, 1928, and was notified to appear before it for trial on November 23, 1928. He appeared before the said commission on that date, and because of the unpreparedness of the assistant district attorney in charge of the prosecution of the case, a request for a postponement was made and granted, after the plaintiff had signed a typewritten paper designated as a “waiver,” partly in blank, addressed to the Civil Service Trial Board, requesting a postponement of the hearing and decision of the case. In this alleged waiver, the plaintiff agreed to waive his right to claim pay as a patrolman between the time of his suspension, November 1, 1928, and the date of the disposition of his case before the said trial board.

The hearing was continued from time to time until it was finally heard on May 16 and 17, 1929, at which time the plaintiff was present, he having appeared on all other days that had been fixed for trial.

On June 19, 1929, the Civil Service Commission forwarded the following communication to the Director of Public Safety:

“The Civil Service Commission, after hearing held on May 16, 1929, finds Patrolman Warren S. Bolay, Tenth District, to be not guilty of conduct unbecoming an officer, Case No. 2938.
“We direct that he be restored to duty, as of this date, and that he receive his pay during his suspension from duty.”

The plaintiff, after receiving the notice from the Civil Service Commission of its finding, reported for duty on September 1, 1929, and began to work on September 4, 1929. He did not receive any pay from November 1, 1928, until September 1, 1929. The plaintiff at no time intended to waive any of his legal rights, including his right to receive pay during suspension; all he intended by the alleged waiver, the contents of which were unfamiliar to him, was merely a postponement of the trial of his case; and if he had known that he was waiving any rights, he would not have signed it; and he was ready to go to trial on the first day that his case was called; the plaintiff was always ready and willing to report for duty; he did not engage in any other business or occupation during the time of his suspension; and during that time-he was frequently called upon, from time to time, to appear in court as a witness in cases in which he had made arrests while performing his duty as a patrolman.

The ordinances of council of 1927 and 1928 fixed the salary of patrolmen of the grade to which the plaintiff belonged at $5.50 per day; and an ordinance of council approved November 15, 1855, section eleven, provides that:

“No policeman shall be permitted to engage in any other business or profession whatsoever, and he or they so offending shall upon due proof thereof be at once discharged from the service, and shall not be eligible for reappointment for one year thereafter;”

and the Manual of Rules and Regulations of the Department of Public Safety, section three of article three, provides, inter alia:

“The time and energy of the members of the force belong to the City, and they are expressly prohibited from pursuing any occupation.”

The plaintiff’s name appeared on the records of the Bureau of Police as a member of the Philadelphia police force for 1928 and 1929; and a patrolman is deprived of the power of arrest during the period of his suspension, but is subject to the call and demand of the Bureau of Police for his services at any time. The plaintiff refused to accept in full payment of the salary due him the sum of $583, which represented 106 days’ pay at $5.50 a day, covering the period from June 19, 1929, to September 3, 1929, and also thirty days of the suspension period which had been ordered paid to him by the Director of Public Safety.

The question involved is whether the Director of Public Safety may withhold the salary of a patrolman during the entire period of his suspension under charges of which he is subsequently acquitted by the Civil Service Commission, which salary was ordered paid by the commission; the patrolman being during the entire time of his suspension ready and willing to perform his prescribed duties, and during the further period from the time the commission ordered him restored to duty until the time when the said director complied with the order of the said commission.

Counsel for the defendant, in his motion for a new trial filed on behalf of the city, contends, firstly, that the superior officer may suspend only for thirty days, and, therefore, the Civil Service Commission may only restore pay for thirty days; secondly, that, since the superior officer may only suspend for a period of thirty days, at the end of thirty days the plaintiff ceased to be suspended; thirdly, that by continuing the case the commission suspended the plaintiff for a period greater than thirty days, which it had no right to do; and, fourthly, that the alleged waiver signed by the plaintiff should have operated as an estoppel, and prevented him from a recovery in this ease.

On the other hand, it is contended by counsel for the plaintiff that he is entitled to his salary during the entire period of his suspension; that his right of recovery depends on the extent of the jurisdiction of the Civil Service Commission, which, in turn, depends on the provisions of the Act of Assembly of June 25, 1919, P. L. 581, which is known as the Charter Act; and that the said commission also has the power to restore pay to suspended police officers. The said act provides, inter alia, in article nineteen, section eighteen:

“No police officer or fireman, except those dismissed during probationary period, shall be removed or discharged, except for cause, upon written charges, and after an opportunity to be heard in his own defense. Such charges may be filed by any superior officer or by any citizen or taxpayer, and shall, within thirty days after filing, be heard, investigated, and determined by the commission or by one of the commissioners, or by some person or board appointed by the commission to hear, investigate, and determine the same.”

And paragraph four reads:

“Nothing herein contained shall limit the power of any superior officer to suspend a subordinate for a reasonable period, not exceeding thirty days, pending hearing and decision. Every such suspension shall be without pay: Provided, however, That the commission shall have authority to investigate every such suspension, and, in case of its disapproval, it shall have power to restore pay to the employee so suspended.”

A careful reading of the above leads us to the conclusion that its provisions make it mandatory for a hearing and determination of a case against any policeman to be had within thirty days, and authorizes the said commission to investigate any suspension without pay, and, in case of its disapproval, empowers it to restore pay to the employee so suspended. Article nineteen of the aforesaid act is remedial in its nature, and, as such, must be liberally construed so as to secure the result intended by the legislature. In Com. v. Lowe Coal Co., 296 Pa. 359, Mr. Chief Justice Moschzisker says (page 367) : “A ‘primary rule of construction ... is that, in applying a statute, the first duty of the court is to ascertain and give effect to the intention of the legislature’ (Vonot v. Hudson Coal Co., 285 Pa. 385, 392-93), and, when ‘necessary ... to effectuate a plain legislative intent, . . . additional . . . words [may be] interpolated:’ Catlin v. Pickett & Co., 262 Pa. 351, 354.”

In 36 Cyc. 1174, speaking of remedial statutes, it is said: “In construing such statutes, regard should be had to the former law, the defects or evils to be cured or abolished, and the remedy provided; and they should be interpreted liberally so as to promote the object of the legislature by suppressing the mischiefs and advancing the remedy.”

Prior to the Charter Act of 1919 we had the Act of March 5, 1906, P. L. 83, known as the Civil Service Act of 1906, and the Act of June 1, 1885, P. L. 37, to which reference is made by Mr. Justice Walling in the case of McCoach v. Philadelphia, 273 Pa. 317, at page 319, as follows: “. . . Unless restrained by statute, a city may promote, demote or discharge a policeman at will, under the rule that the power which appoints may remove; but section 1 of article in of the Act of June 1, 1885 (P. L. 37, 41), known as ‘The Bullitt Bill,’ protected policemen and firemen from dismissal, except by the decision of a court of inquiry, created and acting as therein provided; this was reenacted by the Act of 1906, P. L. 94, 95 (which became a law because not returned by the governor within thirty days after the adjournment of the legislature), but was superseded by the more elaborate Act of June 25, 1919, P. L. 581, entitled ‘An Act for the better government of cities of the first class of this Commonwealth,’ which, in addition to expressly repealing the Act of 1885 (reenacted by the Act of 1906, above referred to), repealed also the Act of March 5, 1906, P. L. 83, relied on by the court below, and provides in section 1 of article xix (Act of 1919, P. L. 613), that ‘From and after the effective date of this article, all appointments, transfers, reinstatements, promotions, reductions, suspensions, removals and dismissals, in the civil service of such city, shall be made in accordance with the terms and provisions of this article and the rules prescribed thereunder.’ This clearly leaves the Act of 1919 as the sole guide in matters like the present, in cities of the first class.”

The clear intent and purpose of the Charter Act of 1919 was to protect the policemen and firemen in their pay. It empowered the superior officer to suspend without pay for a period of thirty days, and, as already referred to, empowered the Civil Service Commission to inquire into suspensions without pay. If it had been the intention of the legislature to give the Director of Public Safety control over patrolmen’s pay, it would have used language for that purpose. If the Civil Service Commission is vested only with the power of restoring pay for thirty days of suspension, it would follow that the Director of Public Safety, by prolonging the suspension, might deprive a patrolman of his pay indefinitely. There is only one conclusion to which we must come, and that is that the Civil Service Commission has the power to restore the pay lost during suspension. There can be no doubt that the office of a policeman in the City of Philadelphia is subject to legislative regulation and control. That question has been decided in the case of Com. v. Black, 201 Pa. 433, which holds that the office of policeman in the City of Philadelphia is subject to legislative regulation and control, and, therefore, no policeman can be suspended or dismissed in any manner other than the method provided by the act of assembly. That act of assembly is the Act of June 25, 1919, P. L. 581, and is now the sole guide in matters of this kind in cities of the first class: McCoach v. Philadelphia, 273 Pa. 317.

Prom the foregoing, it follows that the defendant’s first point is not tenable. The Charter Act gives the superior officer power to suspend without pay, pending hearing and decision, but not for a period longer than thirty days. The obvious meaning of that is that if the subordinate has a hearing and a decision is rendered within thirty days, his suspension ceases; but if he does not, the superior officer must order him restored to duty. While the act empowers the Civil Service Commission to restore pay in the case of suspension without pay for a thirty-day period, it places no limit on the commission’s power to restore pay for a greater length of time.

In considering the question of the restoration of pay, it is necessary to determine what the powers of the commission are, and what effect their orders have. In Crofut v. Philadelphia, 2 D. & C. 459, the court held that the decision of the Civil Service Commission, sitting as a trial court, upon charges against a fireman or policeman, is final, and its findings cannot be inquired into by the court unless the commission acted without taking any evidence whatever, the court using this language:

“In the case now before us, the petitioner being a policeman, the determination of this matter is vested in the Civil Service Commission, sitting as a trial court. The principle, however, is the same, and it follows that we cannot inquire into the correctness of the findings of the Civil Service Commission. . . . The decision of the Civil Service Commission is a judicial finding. . . . In Gallagher v. Blankenburg, 248 Pa. 394, it was held: ‘The procedure provided in the Act (Bullitt Bill) must be followed, and the decision of the trial court as to the guilt or innocence of the accused officer is final, unless reversed or set aside by a court of competent jurisdiction having the power of review upon appeal or eertiorari.”

This decision was affirmed in 276 Pa. 366. See, also, Goldberg v. Philadelphia, 279 Pa. 356, in which case the Supreme Court upheld the commission’s right to reopen and rehear a case, and to change the order of dismissal to one of suspension for six months.

As to the second point raised by the city, little need be said. The objection made is entirely without merit. To say that Patrolman Bolay, the plaintiff, was not suspended after the expiration of thirty days from the filing of the specifications of complaint against him, is fallacious. He was suspended, and he was awaiting the orders from his superior officer to return to duty. As defined in the case of Koester v. Philadelphia, 46 Pa. Superior Ct. 110, 111: “Suspension is, actually, awaiting orders.” In that case the court further says:

“The officer is still liable to be called on to perform duty and is still a policeman. According to the ordinance of November 15, 1855, he could not engage in any other business without forfeiting his position. Regulation 3, Sec. 3, of the rules of the police department also expressly prohibits the officers from pursuing any other occupation.”

That language can aptly be used in the instant case. Bolay testified without contradiction that he held himself in readiness to respond to a call from his superior, and he did not engage in any other business or occupation because by law and regulation he was prohibited from doing so. Had he attempted to engage in any other business or occupation during any period of his suspension, he would have subjected himself to a charge of disobedience. As later events showed, he reported for duty immediately when requested to do so.

Counsel for the city also argued that the plaintiff should have reported for duty after December 1, 1928. As above indicated, he was under suspension, and under no obligation to report unless ordered to do so by his superior. To have done so would have been in vain. No person can be expected or called upon to do that which is vain and useless.

Thirdly: We can dismiss this contention of the city without discussion. The facts do not warrant the city in taking the position that by continuing the case, the commission suspended the plaintiff for a period greater than thirty days, which it had no right to do. There is nothing in the testimony to indicate that the commission suspended the plaintiff. He had already been suspended by the Director of the Department of Public Safety. His case came up for hearing by the commission, who, pursuant to law, found him not guilty of the charges preferred against him, and ordered him restored to duty with pay during his suspension. That it had the power and authority to do so by legislative enactment is beyond question. Its findings are conclusive, and must be accepted. See Crofut v. City of Philadelphia, supra.

Lastly, as to the alleged waiver, it may well be that on grounds of public safety, there could have been no legal waiver by the plaintiff of his salary: Bosler v. Rheem, 72 Pa. 54; 27 R. C. L. 907. But, without passing upon that, we find that the trial judge determined as a matter both of fact and of law that the paper alleged to be a waiver was not a waiver, and with that conclusion we concur. According to the generally accepted definition, a waiver is the intentional relinquishment of a known right: 27 R. C. L. 904, § 2.

“What one does in a dilemma forced upon him by the default of another, cannot be counted upon as a waiver:” 40 Cyc. 259. “Whether there has been a waiver is generally a question of fact, and the sufficiency of the evidence relating thereto is for the jury:” 27 R. C. L. 912, § 7. “Waiver is a matter .of fact to be shown by the evidence:” 40 Cyc. 267. “The question of waiver is mainly a question of intention, which lies at the foundation of the doctrine. Waiver must be manifested in some unequivocal manner, and to operate as such, it must in all cases be intentional. There can be no waiver unless so intended:” 40 Cyc. 261, 262. “An intention to make the waiver should clearly be made to appear by the evidence, and the best evidence of intention is to be found in the language used by the parties:” 40 Cyc. 262, 263.

The evidence in the instant case clearly shows that the plaintiff never intended to waive any right or relinquish any claim that he had. That was found as a fact by the trial judge, who was the trier of the facts, and we cannot substitute our judgment for that of the trial judge: White v. Sixteenth and Locust Realty Co., 80 Pa. Superior Ct. 49, 52. Whichever new is accepted, the conclusion is the same — that is, that the plaintiff did not waive his right to his salary or emoluments of the office of patrolman to which he was entitled, and from which he was kept by the action of the Director of the Department of Public Safety.

It may well be said that the city, in contending that the plaintiff waived his right to pay, is collaterally attacking the judgment of the Civil Service Commission. It is an attempt, in a proceeding collateral to the one in which the judgment was entered, to attack the validity of the judgment on grounds which are other than jurisdictional. That the doctrine of collateral attack applies to the decisions of quasi-judicial bodies, such as the Civil Service Commission, is well settled. The following language is found in 34 C. J. 519-20:

“The rule against collateral impeachment of judicial decisions applies to the determinations of state and county officers or boards of officers, who, although not constituting a court, are called upon to act judicially in matters of administration, such as boards of county commissioners, . . . police boards.”

The decree or order of the Civil Service Commission was not appealed from; it is, therefore, final and binding, and no attack can be made upon it in a collateral proceeding.

It is folly for the city to contend that because the plaintiff should have been restored to duty after thirty days, and was not so restored, he is not entitled to the salary or emoluments attached to the office of patrolman of the City of Philadelphia. He was prevented from performing the duties of that office through no fault on his part, but because of the action of his superior officer. If there was any fault, it was that of the superior officer. The plaintiff was entitled to the salary of that office. His name appeared upon the rolls of the Bureau of Police for the years 1928 and 1929, an appropriation was made for his salary, and he was entitled to receive the same during the period that he was illegally deprived thereof: Storm v. City of Scranton, 77 Pa. Superior Ct. 283; Doverspike v. Magee, 51 Pa. Superior Ct. 525; Koester v. Philadelphia, supra.

After careful consideration of the case, the court in banc, finding that the trial judge committed no error in his rulings or in his finding, dismisses the defendant’s motion for a new trial.


author: Lamberton, J.,

text:
    Mars v. Philadelphia Rapid Transit Company.

      Umsted & Wolfe, for plaintiff; R. V. John and M. A. Coyne, for defendant.
    February 17, 1931.
   Lamberton, J.,

This case was tried before a jury on May 19, 1930, and a verdict rendered for plaintiff in the sum of $16,500. Defendant filed a motion for judgment n. o. v., and a rule for a new trial. On August 12, 1930, this court entered judgment n. o. v. for defendant, and discharged the rule for a new trial. Plaintiff took an appeal to the Supreme Court, as of January Term, 1931, No. 339, and on February 3, 1931, the Supreme Court filed an opinion and entered the following order: “The judgment of the court below is reversed, and judgment is directed to be entered on the verdict:” 303 Pa. 80.

Defendant, without further proceedings in the Supreme Court, has been granted a rule on plaintiff to show cause why the judgment should not be opened and the defendant permitted to reargue the motion for a new trial nunc pro tunc.

At the argument on this rule the defendant’s sole contention was that the verdict was grossly excessive. While expressing no opinion on this point, we believe there is sufficient merit in the defendant’s contention to make it desirable that an opportunity be afforded to have this question passed upon.

When the rule for a new trial was discharged, the action of this court was pro forma, being induced by the belief that serious consideration of the rule for a new trial was unnecessary in view of the action of the court in granting the motion for judgment n. o. v.

We believe that this court is without power to grant defendant the relief which is now asked. The decisions of the Supreme Court indicate quite clearly that where an order is entered, as in the present case, reversing the judgment of the court below, and directing that judgment be entered on the verdict, the lower court is without power to take further action, except as directed by the Supreme Court.

The proper remedy of the defendant is to secure from the Supreme Court a modification of its order, so that the record shall be remitted to the lower court with direction to enter such judgment as law and right may require. This is the procedure clearly indicated in Hughes v. Miller, 192 Pa. 365, and Sloan v. Phila. & Reading Ry. Co., 235 Pa. 155.

If such procedure is followed and the Supreme Court modifies its order, this court will then be at liberty to consider the rule by the defendant for a new trial.

And now, February 17, 1931, the rule to show cause why the judgment should not be opened, and the defendant permitted to move for a new trial, in the above case, is discharged.


author: Van Dusen, J.,

text:
    Noblit’s Estate.

      John C. Bell, Jr., for exceptants; H. Edgar Barnes, contra.
    March 6, 1931.
   Van Dusen, J.,

At the time of testator’s death the stock in question had an intact value of $70.39 per share. Rights to subscribe to additional shares at $80 were issued. Before the issue, the old stock had a book value of $77.94. After the issue all the stock, new and old, had a book value of $79.25 — a gain of $1.31 per share, resulting from the application of the premium.of $2.06 to old and new stock proportionately. These rights were sold by the trustee, and all the proceeds were awarded to income, inasmuch as the transaction did not impair the intact value at the time of testator’s death: Jones v. Integrity Trust Co., 292 Pa. 149; Burton’s Estate, 12 D. & C. 605.

The guardian ad litem for minor remaindermen makes a claim for a portion of these proceeds which needs only to be plainly stated to answer itself. He says- that there has been a contribution of new capital which should be added to the intact value and preserved for principal. This may be so in part. If it is, the amount of the increase remains with the stock, which the trustees still hold for principal account. It is part of the $80 which was paid in, and is not in the proceeds of sale of rights which is going out. No reason can be imagined for adding an additional sum to principal out of the proceeds of the sale of rights, which, in the instant ease, must be income because the intact value, plus undistributed earnings plus the premium, is unimpaired.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Sohnader, Attorney General,

text:
    Reclassification of Counties.
    December 24, 1930.
   Sohnader, Attorney General,

We have your request to be advised on three questions, as follows:

1. Can you regard as official a printed but uncertified “population bulletin” issued by the Department of Commerce and purporting to contain the number and distribution of the inhabitants of Pennsylvania, as per the fifteenth census of the United States?

2. Is the form of certificate attached to your inquiry appropriate for elevating to a higher classification a county whose population entitles it to reclassification under section 32 of the Act of May 2, 1929, P. L. 1278?

3. Do you have authority, by certificate, to reduce in classification a county whose population, as shown by the last census, is less than that required to include it in the class to which it now belongs?

In answer to your first question, we beg to advise that, in our opinion, you should have before you a certified copy of the bulletin of the Department of Commerce, showing the number and distribution of inhabitants of this Commonwealth, as a basis for taking any action under the Act of May 2, 1929, P. L. 1278.

In response to your second question: The form which you submitted is as follows:

“I, John S. Fisher, Governor of the Commonwealth of Pennsylvania, do hereby certify, as directed by the act providing for the classification of counties, approved May 2, 1929, P. L. 1278, that according to the ‘Fifteenth Census of the United States, 1930,’ as published in a ‘Population Bulletin’ entitled ‘Pennsylvania, Number and Distribution of Inhabitants,’ officially issued on Dec. 13, 1930, by the Bureau of the Census of the United States, Department of Commerce, the County of McKean now has a population of fifty-five thousand one hundred and sixty-seven (55,167), and that said county is, therefore, a County of the Sixth Class, with all of the rights, powers and duties of counties of that class, as provided by law.”

We are of the opinion that this form of certificate is proper and in accordance with the Act of 1929. You have, doubtless, noted that, under the act, the great seal of the Commonwealth must be impressed on the certificate.

With respect to your third question:

Section 32 of the Act of 1929 provides that “the classification of counties shall be ascertained and fixed according to their population by reference from time to time to the last preceding decennial United States census.” It then provides specifically that you shall issue your certificate evidencing that a county has been advanced in classification because of an increase in population, but it is silent regarding the procedure for establishing, officially, the reclassification of a county downwards.

In our opinion, the Act of 1929 automatically reduces a county from a higher to a lower class if the latest decennial United States census establishes the fact that the population of the county is less than that which would entitle it to remain in the class to which it belonged when the last previous census was taken; and while the act does not render it the mandatory duty of the Governor to certify this fact as he is required to certify an advance in classification, nevertheless, in our opinion, he may, at his option, issue a certificate indicating a reduction in classification. If he does so, the certificate should be similar in form to that which the act specifically requires in the case of an advance in classification, and should be similarly recorded.

Prom C. P. Addams, Harrisburg:, Pa.


author: Kirkpatrick, Dist. J.,

text:
    In re Leibowitz et al.

      Herman N. Silver and William S. Furst, for petitioners.

      Sigmund H. Steinberg, for bankrupt.
    Jan. 9, 1931.
   Kirkpatrick, Dist. J.,

In general, a contract the purpose and effect of which is to encourage litigation is against public policy. More specifically, the speculative purchase by a third person of a claim in litigation, after terms of settlement have been agreed upon by the parties, the purpose and effect of which purchase is to keep the lawsuit alive, is champertous and void. Granted that much of the law of champerty has been outgrown and dis- - carded, the principles above stated are in accord with a sound public policy and adapted to modern conditions.

In this case, the parties to pending litigation were not only desirous of settling for a compromise figure, but had actually agreed to do so and had fixed the amount. The claim was against a bankrupt estate, and the consummation of the settlement was delayed because the trustee required authority from the referee. With matters in that posture, the attorney who had conducted the suit for the claimant (and who had been discharged and superseded by another attorney) arranged for the purchase of the claim by his wife, paying his former client the amount of the settlement which had been agreed upon with the trustee. Thereafter he continued to prosecute the suit for the assignee (his wife) and finally won it before the Circuit Court of Appeals, which court directed that the claim be allowed as a preference in the full amount. When his wife presented the assigned claim to the referee, it was disallowed. Under the principles stated above, I think the referee was clearly right.

It is no answer to say that the purchase was for the protection of the attor-ney’s fee. It may be that that was the motive, but the fact remains that the effect, as well as the primary purpose, was to frustrate an amicable settlement, procure a breach of an agreement (possibly not legally binding) and ” keep alive for the benefit of a stranger litigation which had become moot so far as the real interests of the parties to it were concerned.

It may be conceded that there is in the case no element of overreaching or presumptive fraud arising out of the confidential relation of attorney and client. That, however, does not affect the situation. The rule which invalidates this assignment has nothing to do with the relation of attorney and client, but arises from the general policy of the law which favors the amicable settlement of litigation, and which forbids traffic in lawsuits as involving a perversion of the proper function of the courts. I would not hesitate to hold the assignment void were the assignee a total stranger who had entered the transaction solely to make money for himself. Admittedly, however, it was engineered by the former attorney in the suit primarily for his benefit While he no longer stood in a confidential relation toward his former client, he was still an officer of the court. In Sampliner v. Motion Pictures Patents Co., 255 Fed. 242, the court pointed out the impropriety of attorneys speculating in lawsuits. In that case the relation of attorney and client existed, but the decision is based not so much upon the attorney’s relation to his client as upon his relation to the court. The court said: “. . . even if there is a full and honest disclosure to the client, there are strong reasons which should forbid the purchase ... it is none the less an impropriety for an attorney, who is an officer of the court and a minister of justice, to speculate in the suits of his client. It would tend to impair public confidence in the profession and in the administration of justice itself.” Whether the wife in this case took a real interest by the purchase or whether her ostensible connection was nothing but a subterfuge is wholly immaterial.

The assignee thus must make out her title through a champertous assignment. Such an assignment gives no rights. In Peck v. Heurich, 167 U. S. 624, the court held that a deed appearing on its face to have been made to carry out a champertous agreement passed no title. The same is true of an assignment. The case cited is not in conflict with Burnes v. Scott, 117 U. S. 582. In the latter case the champertous agreement was merely incidental, relating-to the prosecution of the suit, and was not the foundation of the plaintiff’s title.

The orders of the referee are affirmed.


author: Jones, J.,

text:
    Commonwealth ex rel. v. Jones et al.

      Charles B. Lenahan, for petitioner.

      •Daniel W. Phillips and Edwin Shortz, Jr., for defendants.
    April 17, 1930.
   Jones, J.,

This is a petition for habeas corpus by a father to recover the custody of two minor children from their mother and the maternal grandfather and a motion to quash the writ for the reason that .defendants and the children are within the County of Lackawanna.

It is conceded that both parents resided at Kingston, in this county, and on or about March 25, 1930, the mother left the home, taking the children to her father’s home in Scranton.

The Act of February 18,1875, 2 Sm. Laws, 275, entitled “An act for the better securing personal liberty, and preventing wrongful imprisonments,” provides : “That if any person shall be or stand committed or detained for any criminal or supposed criminal matter ... it shall and may be lawful to and for the person so committed or detained, or any one on his or her behalf, to appeal or complain to any Judge of the Supreme Court, or to the President of the Court of Common Pleas for the county, within which the person is so committed or detained; and such Judge or Justice . . . [may] award and grant an Habeas Corpus . . . directed to the person or persons, in whose custody the prisoner is detained,” and section thirteen provides that all the provisions for the awarding and granting writs of habeas corpus, and proceeding thereon, in case of commitment or detainer for any criminal or supposed criminal matter, shall, in like manner, extend to all cases where any person not being committed or detained for any criminal or supposed criminal matter shall be confined or restrained of his or her liberty under any colour or pretence whatsoever.

As a general rule, a court of a state or territory has no authority to issue a writ of habeas corpus directed to a person outside of its territorial jurisdiction, and state courts have no jurisdiction to issue the writ to persons outside of their district: 12 Ruling Case Law, 86.

Jurisdiction to issue the writ is generally dependent upon the territorial jurisdiction of the court or judge, and in the case of the lower courts and judges in certain instances within the district or circuit: 21 Cyc., 309, 310 [29 Corpus Juris, § 119, page 122],

In Com. v. Quinn, 14 Del. Co. 76, upon a writ of habeas corpus by a father, residing in the City of Chester, for the custody of his son, in the custody of his mother in Conshohoeken, Penna., the application being made in the County of Delaware, upon a motion to quash the writ, the court held that under the Act of February 18, 1785, supra,, jurisdiction of the court is limited to the county within which the person is committed or detained.

Upon the above authorities we reluctantly quash this writ and at the same time deem it an injustice to permit one parent to take minor children from the home, without the consent of the other parent, and carry with them the jurisdiction of the court, compelling the home parent to seek relief in the county where the other may temporarily reside, but we do not make the laws; we simply interpret them, and accordingly quash the writ for want of jurisdiction.

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


author: MaoDade, J.,

text:
    Baker v. Haycox Company, Inc., et al.

      J. De Haven Ledward and Henry G. Sweney, for plaintiff.

      Kingsley Montgomery and Taylor, Chadwick & Weeks, for defendants.
    July 22, 1930.
   MaoDade, J.,

The plaintiff issued a writ of foreign attachment in assumpsit, being a proceeding partly in rem and partly in personam (Coleman’s Appeal, 75 Pa. 441), on October 26, 1928, and the sheriff in execution of such writ attached certain moneys, credits and interests of the defendant, Haycox Company, Inc., in the hands, possession or control of the Ford Motor Company, and served the statement of claim on October 29, 1928; the sheriff so returned his writ and in addition thereto returned the said writ “nihil habet” as to Haycox Company, Inc.

This writ, which is not an action, was returnable the first Monday of December, 1928: Allen v. Allen, 23 W. N. C. 371.

A verdict was rendered for the plaintiff after a trial upon the merits of the case (the defendant being present with its witnesses and offering testimony in support of its defense) on May 13, 1930, in the sum of $7781.05, the trial, therefore, taking place more than the third regular term of the court after the execution of the writ, the said execution being on October 29, 1928. This is what the Act of 1836 provides; and consequently the following terms of court passed, namely, March, June, September and December, 1929, and March, 1930: Wallace v. Scholl, 9 Pa. Superior Ct. 284.

However, the defendant entered its appearance on April 4, 1929, and we can thus disregard the term days and proceed against the defendant as in an action of assumpsit, the plaintiff having already filed his declaration: Stockham v. Boyd, 22 W. N. C. 118.

Foreign attachment will lie in an action in debt, as in the instant case, this being an effort upon the part of the plaintiff to recover the sum of $7540.36, with interest, from the defendant for work done and material furnished under certain oral and written contracts entered into between the said parties and as to which the defendant practically admits in the affidavit of defense and the amended affidavit of defense filed that it owes the plaintiff the sum of $4312, because the defendant admitted the contract price of $14,000, but averred it was entitled to a credit of $1800, which, added to the sum of $7888 already paid on account, made a total credit of $9688, leaving the sum of $4312 as a balance: Victor v. Abrams, 13 Pa. C. C. 298.

The defendant herein entered no bail but entered its appearance and filed the pleadings as aforesaid as in assumpsit and proceeded to trial upon the merits of its defense.

This was proper after an appearance, for then the action proceeds as if commenced by summons (Lindsley v. Malone, 23 Pa. 24), and the effect of an appearance was to change the nature of the proceedings from a pure proceeding “in rem” to a mixed proceeding “in rem et in personam” (Dullett v. Creighton, 4 Tr. & H. Prac. (6th ed.) 3037), and the defendant must file an affidavit of defense, which was done here (Wing v. Bradner, 162 Pa. 72), and where a judgment is formally entered upon the verdict herein it will have the same effect as if the suit had been commenced by summons: Blyler v. Kline, 64 Pa. 130. The verdict being adverse to the defendant, he filed a motion for a new trial and assigned the following reasons therefor: “ (1) The verdict of the jury was against the evidence; (2) the verdict of the jury was against the law; (3) the verdict of the jury was excessive; (4) the remarks of counsel for the plaintiff to the jury of matters not in evidence; (5) the remarks of counsel for the plaintiff in stating to the jury the date, number and term of the commencement of the attachment proceedings in the above case, which were not offered in evidence during the trial of the cause and no part thereof; (6) the learned court erred in sending out with the jury the books of accounts of the plaintiff.”

This matter came on for argument and it developed there that the real reason advanced for a new trial was the excessive verdict, particularly that the sum of $754 as interest was included in the verdict. There was no objection to the court’s charge and indeed there were no requests for instructions: Dangelo v. Lehr, 32 Dauph. Co. 297.

The defendant, therefore, should not complain of error at the trial if it did not object to any remarks of counsel as to evidence nor to the action of the court in admitting books of account: Faller v. Russ, 33 Dauph. Co. 190.

As to the first objection, there was no request for the withdrawal of a juror after objection made. This must be done: Donahue v. Borough, 298 Pa. 77.

And, as to the latter, any admission of a book of account was not as a book of original entry but rather as. corroborative of what the plaintiff and his witnesses had testified orally. This is a correct ruling of the court if that is the objection. In any event, our attention was not called to the same when we were charging the jury, and we requested further instructions or any corrections and we heard none. It would have been error not to have admitted the book account. It was undenied and the reasonableness of the prices charged is denied only: Clifford v. Hicks, 95 Pa. Superior Ct. 182; Horowitz v. Rosenzweig, 95 Pa. Superior Ct. 212.

Where the testimony is conflicting, a new trial will not be granted, as the case is for the jury: Holden v. Tollin, 20 Del. Co. 376.

Where the evidence of the parties has been fairly and adequately submitted to the jury by the trial judge, a new trial will not be granted because the court may not agree with the conclusion which the jury reached on the question of fact. If the evidence is contradictory and conflicting, the case is for the jury: Kolota v. Grushewski, 20 Del. Co. 615; Richards v. Phila. R. T. Co., 299 Pa. 163.

It was fairly submitted to the jury and their attention called to the conflict, and this being so and the evidence conflicting, a new trial will not be granted: Shockley v. Althouse, 20 Berks Co. 225.

It was purely a question of fact which the jury might have determined either way. It found the facts adversely to defendant and the verdict must stand: Loper v. Gensler, 99 Pa. Superior Ct. 44; Young & Young v. Rhoads, 42 York Co. 121.

Upon the subject of an excessive verdict, a new trial will not be granted unless the jury have capriciously disregarded the evidence and the verdict shocks the conscience of the court: Young v. Pearl, 21 North. 188.

We fail to see in the case at bar where the jury capriciously disregarded the evidence, and we are quite sure that our conscience is not a bit troubled; however, to ease up the situation for the defendant, and the credit really therefor may be attributed to the magnanimity of the plaintiff who agreed at bar to abate the interest — for it is true that the writ of foreign attachment was executed on October 29, 1928, and no settlement could be made, therefore, between the defendant and the garnishee thereafter.

Order.

And now, July 22, 1930, the above matter of a motion for a new trial coming on to be heard by the court in banc, together with oral argument, after due consideration thereof, the court doth order and decree that the said motion for a new trial be and is hereby dismissed, provided that the said motion shall become effective when the plaintiff shall have filed of record a remittitur abating from the verdict rendered herein the sum of $754 included in said verdict as interest, thus reducing the verdict of the jury to the sum of $7027.05, as to which latter sum, when said remittitur is lodged aforesaid, the prothonotary be and is hereby ordered and directed to enter judgment upon the verdict in favor of the plaintiff and against the defendant in the sum of $7027.05 sec. reg. et sec. leg.

From William B. Toal, Media, Pa.


author: Smith, P. J.,

text:
    Shaffer Building and Loan Association v. Webb.

      Louis Goodfriend, for plaintiff; Charles I. Thompson, for defendant.
    February 20, 1931.
   Smith, P. J.,

The plaintiff having purchased at sheriff’s sale real estate to which defendant held the legal title, paid certain taxes assessed against the properties while the title was in defendant and brought suit for these taxes, as well as for interest accrued on mortgages prior to the sheriff’s sale.

The court directed the jury to find for the defendant with respect to the interest, and left to the jury to determine whether the plaintiff had knowledge of the character in which the defendant held the title. The verdict of the jury was in favor of the defendant, and the plaintiff now moves for judgment non obstante veredicto in its favor and has taken a rule for a new trial.

Charles A. Mahon was the owner of the real estate in question, and, desiring to erect houses thereon, entered into an arrangement by which the Land Title and Trust Company of Philadelphia gave certain insurance for the benefit of subcontractors, and the title to the real estate was transferred to H. Leroy Webb, the defendant, an employee of the Land Title and Trust Company, for the purpose of protecting the Land Title and Trust Company, as well as the subcontractors. At the time of the transfer of title to Webb in 1925, he executed a declaration of trust showing the rights of the respective parties and that he, Webb, held a mere naked title in trust for the different parties interested. This declaration of trust, however, was not recorded.

On January 15, 1926, Webb transferred the title to Claude Ruby, and the latter executed four bonds and mortgages of $3200 each upon the houses erected on the said real estate, and on the same day re-transferred the title back to Webb, so that Webb was the legal owner during the year 1926, excepting the period on January 15th of that year, when the title was in Ruby.

The Philadelphia city taxes for the year 1926 were assessed against Webb.

The plaintiff held said mortgages, and no interest having been paid thereon, on June 7, 1926, judgment was entered on the bonds accompanying the mortgages and the properties sold on July 6th of the same year by the sheriff and purchased by plaintiff, the sheriff's deed being delivered on August 10, 1926.

The applications made to plaintiff for the loans were signed by Ruby, but the building and loan association books were sent to Mahon by the treasurer. The president of the association was one of the committee that inspected the premises preparatory to making the loans, and upon these premises was a large sign upon which was painted: “Builder and Owner, Charles A. Mahcn. Homes for Sale.”

The president admitted that he knew Mahon had been the owner of the premises, but thought they had been sold to the man Ruby, who applied for the loans.

The conveyancer of the association, who also examined and passed upon titles in connection with applications for loans, wrote a letter to Mahon, after default in the payment of interest, suggesting that Mahon should transfer title to the properties to plaintiff and avoid the necessity of a sheriff’s sale.

There was evidence that both this conveyancer and the treasurer of the plaintiff made demands upon Mahon for payment of interest upon said loans.

While it is true, as plaintiff contends, that a purchaser at sheriff’s sale who pays accrued taxes is subrogated to the right of the taxing municipality as against the late owner, on the other hand, where the holder of the legal title is a mere naked trustee, and this is known to the purchaser at sheriff’s sale, such purchaser must look to the real owner for reimbursement for taxes paid: Rawle v. Renshaw, 15 Pa. Superior Ct. 488; Dillwyn Apartment Realty Co. v. First Mortgage Guaranty and Trust Co., 63 Pa. Superior Ct. 450.

While there is no direct evidence of notice to, or knowledge upon the part of plaintiff corporation of, the character in which this title was held, yet there was evidence from which the inference might fairly be drawn that the association knew of this fact.

In addition to the custom prevailing in building operations, which presumably must be known to building and loan associations in the same locality, we have the fact that the building and loan association books were sent to the real owner, that notice was given by the treasurer and conveyancer to the real owner of the nonpayment of interest, that the executive head of the plaintiff association inspected the properties at the time of the placing of the mortgages, and that on those premises there was a large sign calling attention to the fact that Mahon was the owner; and the added fact that this executive officer knew that up to the time of the placing of the mortgages Mahon was the owner, although the title was in the name of Webb. This evidence warranted the submission to the jury of the question whether the plaintiff had knowledge of the true character of the title held by Webb. If it had such knowledge, then it should look to the real owner for the payment of the taxes; and in the absence of such knowledge only should the defendant be required to pay them. This question was left to the jury under proper instructions, and the motion of plaintiff for judgment non obstante veredicto must be overruled.

The same questions are controlling as- bearing upon the rule for a new trial. It may be noted, in addition, that the trial judge properly directed the jury to find in favor of the defendant upon the claim for unpaid interest upon either the mortgages held by plaintiff or any prior mortgages.

The Act of June 12, 1878, P. L. 205, expressly relieves a grantee of real estate from personal liability for mortgages existing at the time of the grant, unless there is a personal assumption of payment in writing; and we agree with the trial judge in his conclusion that this applies to the interest as well as to the principal of the mortgage; so that the instruction to the jury was proper. -

And now, February 20, 1931, the motion of plaintiff for judgment non obstante veredicto is overruled. An exception to this action of the court is hereby noted for the plaintiff. The rule for a new trial is discharged, a new trial is refused, and judgment is directed to be entered on the verdict upon payment of the jury fee.