author: Wickersham, J.,

text:
    Black v. Woodward, Secretary of Internal Affairs of Pennsylvania, and United States Shipping Board, etc.

      Equity — Demurrer—Laches.
    1. Only gross laches can be set up in a suit in equity by way of a demurrer.

      Equity — Injunction—No threatened injury — Beal ‘property — Patent of the Commonwealth — Effect on title.

      2. A patent, of the Commonwealth of Pennsylvania conveys only such title as the Commonwealth may possess. An injunction to restrain the issuance of a patent cannot be granted at the suit of one who claims the Commonwealth has no title, for the reason that the patent, if granted, will not affect either his title or his right to purchase money, and, therefore, does not threaten to do him any injury.

      Equity — Jurisdiction — Injunction — Public officers — Discretionary acts— Patents to real property.

    3. Courts cannot interpose by injunction or mandamus to limit or direct the discretion and action of departmental officers in respect to matters .within their jurisdiction and control. The Secretary of Internal Affairs, having express statutory discretion in the granting of patents to real property, cannot be enjoined from the exercise thereof.

      Equity — Jurisdiction—Title to real property.

    4. Equity courts of Pennsylvania have no jurisdiction to try title to real property except as the question of title is incidental and subordinate to other elements which call for the exercise of equitable remedies.

      Board of Property — Findings conclusive on caveator — Act of April S, 1792.

    5. Under section 11 of the Act of April 3, 1792, 3 Sm. Laws, 70, 74, the findings of the Board of Property are binding and conclusive against parties and privies to the oameat.

    Demurrer to bill for an injunction. C. P. Dauphin Co., Equity Docket, No. 681.

      Spencer Gilbert Nawman, Jesse E. B. Cunningham and Roberts, Montgomery & McKeehan, for plaintiff.

      George E. Alter, Attorney-General, William I. Swope and Geo. Ross Hull, Deputy Attorneys-General, for Secretary of Internal Affairs.

      John Mel. Smith and Thomas Raeburn White, for United States Shipping Board Emergency Fleet Corporation.
    Oct. 20, 1921.
   Wickersham, J.,

The plaintiff complains that prior to Sept. 14, 1917, together with Francis H. Bohlen, he was the owner in fee simple of a certain tract of land, containing 54.91 acres, formerly in the bed of the Delaware River, being a part of a larger tract of land, commonly known as “Hog Island.” The said 54.91 acres were being formed by accretion, etc., over a period of years ranging from 1885 to 1917. On Sept. 14, 1917, the plaintiff and Bohlen granted and conveyed to the American International Corporation the entire “Hog Island” tract of 846 acres — which included the parcel of 54.91 acres above referred to — by deed in fee simple. The Real Estate Title Insurance and Trust Company of Philadelphia, before the conveyance was made, refused to insure the title for the said 54.91 acres tract of land above referred to, for the reasons that, it contended, there was neither a paper title of record nor a title thereto by adverse possession in the plaintiff and Bohlen, who relied upon a title acquired by accretion. They alleged that the land was added to the original shore line, of which they were the sole riparian owners, gradually and imperceptibly over a long period of years by alluvial deposit thereon. Upon the refusal of said Real Estate Title Insurance and Trust Company of Philadelphia to insure the title to said tract of land, the American International Corporation refused to pay the plaintiff and Bohlen therefor; whereupon it was agreed between them that the sum of $110,000, the purchase price of said tract of 54.91 acres, should be deposited with the Real Estate Title Insurance and Trust Company of Philadelphia by the said American International Corporation pending the perfecting of the title to said land by the plaintiff and Bohlen, and the conveyance by them of a good and marketable title thereto to the said American International Corporation, and that any expenses incurred in obtaining such title were to be charged against and deducted from said fund. The said tract, however, was included in the conveyance by plaintiff and Bohlen of the entire tract of 846 acres to the said American International Corporation.

A suit was brought by the plaintiff and Bohlen against the American international Corporation for failure to pay the purchase price therefor in the Court of Common Pleas No. 5 of the County of Philadelphia, which resulted in a verdict in favor of the plaintiff for $27,500. This verdict, on appeal, was reversed by the Supreme Court of Pennsylvania, in an opinion reported in 264 Pa. 260, upon the ground, principally, that the plaintiff had not delivered a good and marketable title to the said 54.91 acres tract of land to the defendant.

That the American International Corporation, after said decision of the Supreme Court was rendered, applied to the defendant, James F. Woodward, Secretary of Internal Affairs, for a patent to said land, to which application the plaintiff and the said Bohlen filed a caveat. Hearings were had upon said application and caveat before the Board of Property of the Commonwealth of Pennsylvania, after which a warrant was issued by the Secretary of Internal Affairs, authorizing the survey and appraisement of said land for the purpose of granting a patent therefor, and a board of three appraisers was appointed, who completed their labors and filed a report with the said James F. Woodward, Secretary of Internal Affairs, appraising said tract of 54.91 acres for the purpose of granting a patent at $82,880.

The plaintiff avers that he and Bohlen, on Sept. 14, 1917, conveyed to the American International Corporation a good and marketable title to said tract of 54.91 acres; that no title to the same reposed in or now reposes in the Commonwealth of Pennsylvania; and that James F. Woodward, Secretary of Internal Affairs, accordingly had and has no lawful right to authorize the granting of a patent therefor, or for any part thereof, nor had the Board of Property of the Commonwealth of Pennsylvania any lawful right to authorize the issuance of a warrant to survey and appraise said land as the property of the Commonwealth of Pennsylvania for the purpose of granting a patent therefor.

That the plaintiff is disqualified from taking an appeal from the said order of the said Board of Property, for the reason that he and Bohlen granted and conveyed the title to the said premises to the said American International Corporation by a fee simple deed, and there is accordingly no title remaining in the plaintiff on which to found an ejectment proceeding.

That the American International Corporation, on March 2, 1920, conveyed all its right, title and interest in said tract of 846 acres to the defendant, the United States Shipping Board Emergency Fleet Corporation; by separate instrument bearing the same date, the said American International Corporation assigned and transferred to the United States Shipping Board Emergency Fleet Corporation all its right, title and interest in and to the application for a patent to said tract of 54.91 acres filed by the American International Corporation, and also assigned to the said United States Shipping Board Emergency Fleet Corporation all its right, title and interest in said fund of $110,000 now on deposit with the Real Estate Title Insurance and Trust Company of Philadelphia.

That by assignment dated Feb. 2,1921, the said Francis H. Bohlen sold and assigned all of his interest in and to the said fund of $110,000 now on deposit as aforesaid to the plaintiff.

That the said James F. Woodward, Secretary of Internal Affairs, is ready to grant a patent for said tract of 54.91 acres to the defendant, United States Shipping Board Emergency Fleet Corporation, upon payment of the sum of $82,380, being the valuation for this purpose placed thereon by the said appraisers.

The plaintiff further alleges that the action of James F. Woodward, Secretary of Internal Affairs of the Commonwealth of Pennsylvania, in issuing a warrant to survey and appraise said land for the purpose of granting a patent therefor acted unlawfully, without authority and in violation of the rights of the plaintiff, who, alleging he is without adequate remedy at law, needs equitable relief, and prays that an injunction issue, preliminary until final hearing and perpetual thereafter:

1. Enjoining and restraining the defendant, James F. Woodward, Secretary of Internal Affairs of the Commonwealth of Pennsylvania, from executing any patent or other instrument conveying, or intended to convey, to the defendant, United States Shipping Board Emergency Fleet Corporation, its successors or assigns, or to any other persons or corporation, any title to the said tract of 54.91 acres.

2. Enjoining said secretary from accepting on behalf of the Commonwealth of Pennsylvania, and enjoining and restraining the defendant, the United States Shipping Board Emergency Fleet Corporation, from paying any sum whatsoever as consideration for the granting of said patent.

3. Enjoining and restraining the defendant, the said United States Shipping Board Emergency Fleet Corporation, from using, or attempting to use, any part of said fund of $110,000 for the payment of a patent therefor, or for any other purpose, save to recompense the plaintiff for the conveyance of the title to said land.

4. That a decree be entered ordering and directing the defendant, United States Shipping Board Emergency Fleet Corporation, to take such steps as shall be necessary to cause the said fund of $110,000 now on deposit as aforesaid to be paid and delivered to the plaintiff forthwith.

5. Such other and further relief, etc.

The defendant, the United States Shipping Board Emergency Fleet Corporation, filed its answer to the bill of complaint of the plaintiff, alleging, among other things, this suit is in substance, fact and effect against the United States of America, to the bringing and maintenance of which the United States of America has not consented; and, moreover, this suit is not one of equitable cognizance, in that it is an attempt by the plaintiff to try the title to the real estate described in his bill of complaint in equity instead of at common law, and generally denying the jurisdiction or power of this court to entertain the bill of complaint.

For the reasons hereafter given, we think the demurrer of the United States Shipping Board Emergency Fleet Corporation must be sustained.

The defendant, James F. Woodward, Secretary of Internal Affairs of the Commonwealth of Pennsylvania, filed his demurrer to the bill of the plaintiff, setting forth five reasons therefor. We filed an opinion overruling this demurrer because it failed to state the particulars and assign the reasons or grounds thereof in detail, as required by Rule No. 82 of the rules in equity as adopted by the Pennsylvania Supreme Court and revised and amended to Nov. 1, 1920. Ten days were allowed James P. Woodward, Secretary of Internal Affairs, to file an amended demurrer, with which he complied Oct. 3, 1921.

The first cause of demurrer of the said James P. Woodward, Secretary of Internal Affairs of the Commonwealth of Pennsylvania, alleges: “That upon the face of the plaintiff’s bill it appears that for a period of more than twelve months he failed and neglected to bring his action, during which time the Commonwealth of Pennsylvania and the United States Shipping Board Emergency Fleet Corporation, the defendants, expended moneys upon the faith of the adjudication theretofore made by the Board of Property, wherefore the plaintiff, by reason of his laches, is not entitled to equitable relief.”

We think this cause of demurrer cannot be sustained. The cases have consistently held that only gross laches can be set up by way of demurrer: Corbett’s Estate, 10 Dist. R. 59; Edwards v. Railway Co., 268 Pa. 228, in which it was said by the late Chief Justice Brown: “The question of laches does not depend, as does the statute of limitations, upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether, under the circumstances of the particular case, plaintiff is chargeable with want of due diligence in failing to institute or prosecute his proceeding:” Townsend v. Vanderwerker, 160 U. S. 171.

The second cause of demurrer alleged is: “That upon the face of the plaintiff’s bill it appears that the act which he seeks to restrain, to wit, the issuance of a patent for the land described in the bilí, does not threaten any injury to the plaintiff, for the reason that it will not affect either his title to said land or his right to the purchase money.”

We think this cause of demurrer must be sustained. The patent of the Commonwealth of Pennsylvania is in effect a quit-claim deed from the Commonwealth, and, therefore, conveys only what title the Commonwealth may possess; if the Commonwealth has no title, the patentee gets nothing: Act of April 9, 1781, 1 Sm. Laws, 529; Act of April 5, 1782, 2 Sm. Laws, 13; Act of June 27, 1913, P. L. 665; Sergeant’s View of the Land Laws of Pennsylvania, 72, 168, 171.

Section 3 of the Act of April 5, 1782, 2 Sm. Laws, 13, provides as follows: “Provided, that no determination of this Board of Property shall be deemed, taken or construed to extend in any manner whatever to the preventing either of the parties from bringing their action at the common law, either for the recovery of possession or determining damages for waste or trespass; but the courts of law shall remain open to the said parties in as full and ample manner, as if no determination had ever been given.”

The third, fourth and fifth causes of demurrer raise the question of jurisdiction of the court and may be considered together. It is claimed by the Commonwealth-in the third cause of demurrer that this court has no jurisdiction, for the reason that the granting of a patent in pursuance to an adjudication of the Board of Property is the exercise by a public officer of an official duty involving the exercise of judgment and discretion.

Recapitulating the salient facts stated in the bill, it appears that, prior to Sept. 14, 1917, the plaintiff entered into certain option agreements with the American International Corporation, binding himself to sell and transfer to it a tract of land containing 846 acres, which included the fifty-four acres described in his bill. After these agreements had been entered intoxand before the purchase money was paid and the title transferred, the title of the property was submitted for examination to the Real Estate Title Insurance and Trust Company of Philadelphia, a corporation engaged in the business of examining titles to real estate and insuring the same. This corporation reported, prior to the transfer, that the plaintiff could not give clear and undisputable title to the fifty-four acres. The plaintiff then knew, or should have known, that the Commonwealth had title, or at least color of title, to this land; he was thus put upon notice that his title was defective and that some steps would have to be taken to divest the Commonwealth, of whatever right it might have and to secure for himself a perfect title. Notwithstanding this notice, he voluntarily executed a deed for the entire 846 acres, which included the fifty-four acres, and by delivery of this conveyance to the American International Corporation divested himself of whatever title he might have had. He thereupon brought suit against the American International Corporation for failure to pay the purchase price therefor, in the Court of Common Pleas No. 5 of the County of Philadelphia, and obtained a judgment in his favor. This judgment was reversed by the Supreme Court, in an opinion reported in 264 Pa. 260. It was there held that: “An action for the purchase money of land is in legal effect a petition or bill for specific performance of the contract of purchase and is governed by the same equitable principles; hence, whether the proceeding be by petition, bill or action of assumpsit to recover the purchase money, the vendee is not obliged to take a doubtful title; and every title is doubtful which invites or exposes the party holding it to litigation. ... If there be a color of an outstanding title which may prove substantial, though there is not enough evidence to enable the chancellor to say that it is so, a purchaser will not be held to take it and encounter the hazard of litigation with an adverse claimant.”

After stating this principle, Mr. Justice Simpson, writing the opinion of the Supreme Court, concludes:

“To now compel defendant to take title would subject it to that hazard. If the Commonwealth ever contests plaintiff's title, she may be able to show such a state of facts as would prevent the doctrine of accretion from applying. In any event, there is at least ‘color of an outstanding title’ in her, and though there may be ‘nothing in evidence to enable the chancellor to say’ she has the better title, defendant is not required to ‘encounter the hazard of litigation’ with her.

“The judgment of the court below is reversed without prejudice to plaintiffs’ right to hereafter demand the purchase money of said land whenever they can give this defendant a marketable title thereto.”

After this decision was handed down, the American International Corporation made application to James P. Woodward, Secretary of Internal Affairs, for a patent to said land, to which application the plaintiff and his former partner, Francis H. Bohlen, filed a caveat, and hearings were had upon said application and caveat before the Board of Property of the Commonwealth of Pennsylvania. The conclusion of the said board is found in Exhibit “A” of the plaintiff’s bill of complaint, and is as follows: “It appearing that the requirements of the Act of 1913 have been complied with by the said applicant, the application is allowed and the caveats against the same dismissed.”

The granting of the patent follows, as a matter of course, the adjudication in favor of the application, as it is only a certified record of the adjudication. A court of equity would have no jurisdiction to interfere with the adjudication of the Board of Property, and it would seem to us to naturally follow that it would now have no right to interfere with the issuing of a patent in pursuance of the said adjudication. This procedure is under the Act of May 3, 1909, P. L. 413, which gives to the Secretary of Internal Affairs discretion as to surveys and finding the land vacant. While it is true that the application in this case was made under the provision of the Act of June 27, 1913, P. L. 665, in reference to patenting lands in the beds of navigable rivers, yet section 2 of said act provides: “Any such land shall thereafter, upon application, be surveyed, appraised and patented in the same manner as other vacant or other unappropriated land may now be surveyed, appraised and patented,” which proceeding, as we have stated, is authorized by the Act of May 3,-1909, P. L. 413.

The plaintiff, in support of his contention that the court has jurisdiction to hear and determine this case, directs our attention to the Act of March 19, 1903, P. L. 32, being an act amending section 1 of an act entitled “An act relating to mandamus,” approved June 8, 1893, which provides, inter alia, that the several Courts of Common Pleas within the respective counties shall have power to issue writs of mandamus to all officers and magistrates elected or appointed in or for the respective county, ... or having their chief place of business within such county; . . . and the Court of Common Pleas of the county in which the seat of government is or may be located shall have power, and it shall be required, to issue the writ of mandamus to the . . . Secretary of Internal Affairs, . . . etc. The plaintiff also, in support thereof, directs our attention to the Act of June 26, 1895, P. L. 315, providing for a separate appearance docket for all cases in which the Attorney-General appears officially for the Commonwealth in the courts of the county in which the seat of government is situated; also to United States v. Lee et al., 106 U. S. 196, and Louisville & N. R. R. Co. v. Bosworth, 209 Fed. Repr. 380, in support of his contention that this court, sitting in equity, has authority to control the discretion of the Secretary of Internal Affairs. We quite agree that if the act of the Secretary of Internal Affairs in this proceeding was entirely ministerial, the authorities cited would be controlling. We think, however, that the cases cited are clearly distinguishable. Louisville & N. R. R. Co. v. Bosworth, 209 Fed. Repr. 380, holds that such action is maintainable “if for any reason the officer has no right to take such action, and it will be a wrong to plaintiff which equity will enjoin.” How can it be said with any reason that the act of the Secretary of Internal Affairs in issuing a patent to the American International Corporation, after such patent has been authorized by the Board of Property in a proceeding in which the plaintiff was an active and interested party, is “an act contra/ry to law,” we fail to comprehend. The Lee case, reported in 106 U. S. 196, holds that the United States cannot be sued as a party defendant in any court whatever, except where Congress has provided for such suit, but it was expressly held “this exemption is, however, limited to suits against the United States directly and by name, and cannot be successfully pleaded in favor of officers and agents of the United States when sued by private persons for property in their possession as such officers and agents.” It is not contended in the case at bar that the Secretary of Internal Affairs is in possession of land belonging to the plaintiff. Whether title to the land in dispute is in the Commonwealth raises another question of jurisdiction which we will discuss hereafter.

The general rule is that the courts cannot interpose by injunction or mandamus to limit or direct the discretion and action of departmental officers in respect of pending matters within their jurisdiction and control. It has been decided that the action of the Secretary of the Interior, directing the commissioner of the land office to cancel an entry of land, is within the exclusive control of the department and cannot be interfered with by injunction while the matter is pending, and the United States Circuit Court has no power to stay the Land Department in the discharge of a duty which is not ministerial, but involves the exercise of judgment and discretion: Joyce on Injunctions, § 54; City of New Orleans v. Paine, 51 Fed. Repr. 833, affirmed in 147 U. S. 261.

In Pennsylvania it has been held that a bill filed to restrain public officers from proceeding in official acts, but without any averment that they are proceeding without lawful authority, is demurrable: Delaware County’s Appeal, 119 Pa. 159.

In the case at bar the Secretary of Internal Affairs is given by act of assembly discretionary power as to the survey, and to him and to the other State officials as to the appointment of appraisers, and he is also clothed with' power to collect for the State the amount of the appraisement and to withhold the patent until the money is paid; furthermore, he has express statutory authority to grant the patent to the applicant therefor. We think this cause of demurrer should be sustained.

The Commonwealth further contends that this court, sitting in equity, has no jurisdiction to grant the relief prayed for because the ownership of land is involved, and this is the vital question in the case — the question which settles and determines the issue between the plaintiff and the demurrant.

The equity powers of this court are conferred by art. v, § 20, of the Constitution of Pennsylvania, which provides: “The several Courts of Common Pleas, besides the powers herein conferred, shall have and exercise within their respective districts, subject to such changes as may be made by law, such chancery powers as are now vested by law in the several Courts of Common Pleas of this Commonwealth, or as may hereafter be conferred upon them by law.”

“The powers conferred upon them by law” were determined and limited by section 13 of the Act of June 16, 1836, P. L. 784, as amended and extended by section 1 of the Act of Feb. 14, 1857, P. L. 39.

That the owners of property may not be deprived thereof except by trial by a jury according to the course of the common law is fundamental, and the rights of the Commonwealth and its citizens in the enjoyment of the rights of property are protected by the 14th Amendment to the Constitution of the United States, which provides: “Nor shall any state deprive any person of life, liberty or property without due process of law;” and by art. I, § 6, of the Constitution of Pennsylvania, which provides: “Trial by jury shall be as heretofore, and the right thereof remain inviolate.”

The title to the fifty-four acres of land mentioned in the bill filed in this case is involved. The plaintiff claims he has an absolute title to the land which he has conveyed to the American International Corporation, and that this proceeding is instituted for the purpose of collecting the purchase money; but the Commonwealth of Pennsylvania also claims title to this land, and to grant the equitable relief claimed by the plaintiff and direct that the $110,000 now held by the Real Estate Title Insurance and Trust Company of Philadelphia be paid to the plaintiff would result in depriving the Commonwealth of Pennsylvania of the title which it claims it has and which appraisers have valued at $82,380. We do not think we have the power to grant the relief claimed by the plaintiff. The Supreme Court of Pennsylvania, when this case was before it, closed its opinion with the significant words, that while the judgment for a part of the purchase money claimed in the suit by the defendant against the American International Corporation was reversed, this reversal was “without prejudice to the plaintiffs’ right to hereafter demand the purchase money of said land whenever they can give to defendant a marketable title thereto.” Our attention has not been directed to anything upon the record in this case which shows, or even suggests, that the plaintiff has complied with this very reasonable direction of the Supreme Court of Pennsylvania that he furnish and supply to the defendant a good and marketable title to the real estate; and until he has so complied, he cannot successfully set up in this court of equity a claim to all of the said purchase money so placed in escrow. To permit him to so do might result in a serious loss to the Commonwealth of Pennsylvania if it can show a title to said tract. Furthermore, the defendant, the United States Shipping Board Emergency Fleet Corporation would thus be compelled to pay for a title which is doubtful; this, the Supreme Court holds, they cannot be required to do: Black et al. v. American International Corporation, 264 Pa. 260.

In Pennsylvania Canal Co. v. Middletown and Harrisburg Turnpike Co., 1 Dist. R. 663, in which the title to a narrow strip of land in the Borough of Steelton was in dispute, and was claimed by plaintiff and defendant, this court held that a court of equity has no jurisdiction to determine the legal title to real estate and the right of possession thereunder. President Judge Simonton, in a very able and convincing opinion, has collected the authorities upon the subject, and concludes as follows: “In accordance, therefore, with the doctrine recognized and enforced in the cases above cited, and without any expression of opinion on the merits of the case, we must decide that we have no jurisdiction to continue the preliminary injunction, and that it must be, and it is, therefore, hereby decreed to be dissolved.”

The reasoning of Judge Simonton is so convincing that we have no hesitancy in adopting it as our own, and reach the same conclusion with regard to the rights of the plaintiff in this case which he reached in the case above quoted. We think the Commonwealth is entitled to have its title to the land in dispute submitted to and passed upon by a jury: Norris’s Appeal, 64 Pa. 276, where it was said by Mr. Justice Strong, in construing the Acts of 1858 and 1859, purporting to confer upon the Courts of Common Pleas jurisdiction in cases of disputed boundaries: “It cannot mean that the legislature may confer upon the Supreme Court and the Courts of Common Pleas the power of trying according to the course of chancery any question which has always been triable according to the course of law by a jury. If it can, then an ejectment founded solely on legal title, and action of debt on a bond, or a replevin, or an action of trespass, may be sent into chancery, all contested facts in it to be decided by the judge, and the intervention of a jury be unknown. Then, what has become of the constitutional right of the citizen? Such a doctrine would startle the people of this Commonwealth, and justly, for it would deprive them of one of their most valuable privileges. No power in our government can take from the litigant the right to have his case tried by a jury, substantially in the mode and with the same effect as that which belonged to jury trials in similar cases when the Constitution of 1776 was adopted.” See, also, Washburn’s Appeal, 105 Pa. 480; O’Neil v. McKeesport, 201 Pa. 386; Scanlin v. Conshohocken Borough, 209 Pa. 48, and Pennsylvania Coal and Coke Co. v. Jones, 30 Pa. Superior Ct. 358; Nanheim v. Smith, 253 Pa. 380.

It is quite true that the plaintiff in his brief, and his counsel in their oral argument, contended that the court has jurisdiction by stating that the plaintiff does not seek to recover any land, but is mainly seeking to recover the purchase money for land; that the action is not an action to establish his title to land, because he expressly admits that he does not have the title, and avers that he has conveyed his title to the American International Corporation; but this contention seems to overlook the first prayer of his bill, which is a prayer “enjoining and restraining the defendant, James F. Woodward, Secretary of Internal Affairs of the Commonwealth of Pennsylvania, from executing any patent or other instrument conveying, or intended to convey, to the defendant, United States Shipping Board Emergency Fleet Corporation, its successors or assigns, or to any other person or corporation, any title to the said tract of 54.91 acres.”

We think, therefore, that the bill presents a clear case of an attempt, by proceeding in equity without the intervention of a jury and contrary to the course of common law, to deprive the Commonwealth of Pennsylvania of its property and to divest its title. This result cannot be accomplished in a court of equity. If we were to proceed to a final hearing, the result would probably be that the plaintiff would proceed to prove title to the land on Sept. 14, 1917, and he would also endeavor to prove that the Commonwealth did not at that time, or any other time, have any title to the land in question. Without this proof he could not recover the purchase money: Black v. American International Corporation, 264 Pa. 260. The Commonwealth, on the other hand, would be required to defend by showing what title it had, after which the court would be obliged to find the facts — whether the plaintiff had any title prior to Sept. 14, 1917, and whether the Commonwealth had any title, either then or now — and the finding of these facts adversely to the Commonwealth, and an injunction granted thereon, would have precisely the same force and effect as a verdict in an action of ejectment against the Commonwealth.

A “court of equity,” in the absence of fraud, has no jurisdiction to deprive a party of his legal title to land by a decree; that is solely within the jurisdiction of a “court of law:” North Shore R. R. Co. v. Pennsylvania Co., 193 Pa. 641.

The plaintiff in his brief suggests this is a bill to remove a cloud from a title, and in support of his contention cites Heppenstall v. Leng, 217 Pa. 491; Gray v. Citizens’ Gas Co., 206 Pa. 303, and City Ice Co. v. Merchants’ Ice Co., 48 Pa. C. C. Reps. 1. The last two of these cases were bills for specific performance, and throw no light upon the question of jurisdiction raised in this case.

In Heppenstall v. Leng, 217 Pa. 491, it was held that a court of equity has jurisdiction to remove clouds from a title whenever a deed or other instrument exists which may be vexatiously or injuriously used against a party, if the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect or maintain his right by any course of proceeding. When these facts appear in the case, a court of equity will afford relief by directing the instrument to be delivered up and canceled or by making any other decree which justice or the rights of the parties may require. A careful reading of the opinion of Mr. Justice Mestrezat clearly shows that this was a bill to remove a cloud from the title of the plaintiff. It appears from the pleadings in the case that the plaintiff purchased a tract of land which had been subject to a mortgage; that, at the time of the purchase, the mortgagees released the land from the lien of the mortgage; subsequently, the mortgagees were paid the mortgage money; later, they instituted a foreclosure proceeding and sold the land to the defendant’s predecessor in title. It thus appeared that the plaintiff in the bill had secured a title free of the lien of the mortgage, that the mortgage had been paid, and that the supposed title of the defendant was founded upon what purported to be a valid foreclosure proceeding under the mortgage. The purpose of the bill was to move the court to declare a mortgage satisfied which had in fact been paid, and which in equity and good conscience should have been satisfied.

The case is clearly distinguishable from the case at bar which we are now considering. The plaintiff in this case, with a full knowledge of the outstanding title of the Commonwealth, conveyed whatever title he had to the American International Corporation. He made this conveyance, notwithstanding the fact that at the time he was in possession of the property and should have delayed said conveyance until his title thereto was established. After the Board of Property of the Commonwealth of Pennsylvania had reached its conclusion and filed its written findings with the Secretary of Internal Affairs, he would have had his remedy by action of ejectment under the Act of 1792.

Under the decision of the Supreme Court in Black et al. v. American International Corporation, 264 Pa. 260, and after the decision of the Board of Property was rendered, it became the duty of the plaintiff, if he wished to press his claim for the purchase money so left in escrow, to bring an action to recover the same within the six months allowed him by the Act of 1792. Such action being equitable in its nature, the rights of the plaintiff to a portion of the purchase money, and the rights of the Commonwealth of Pennsylvania and of the United States Shipping Board Emergency Fleet Corporation, the applicant for the patent and the person now in possession of the land in controversy, could all have been adjusted, particularly as it appears the plaintiff and his vendees had entered into a contract as to the purchase money left in escrow, by which the plaintiff was to recover whatever was left of said money after deducting the cost and expenses of perfecting the title. (See paragraphs 8 and 9 of plaintiff’s bill.)

This case must also be distinguished from the case of Heppenstall v. Leng, 217 Pa. 491, in that: (1) The State was not a party to the bill, and both the plaintiff and defendant were private citizens. The State had no claim to the land. (2) Both parties were out of possession.

In the case at bar, one of the defendants, the United States Shipping Board Emergency Fleet Corporation, being the successor to the American International Corporation, which was the successful party before the Board of Property, is considered to be in possession of the land in controversy: Burford v. McCue, 53 Pa. 427.

“If the defendant, or any one claiming under him, or any one claiming adversely to the plaintiff’s title, was in possession of the premises, the plaintiff would be put to his ejectment:” Heppenstall v. Leng, 217 Pa. 491-494.

Nor can the bill filed in this case be held to be a bill of peace, for, “to entitle the plaintiff to relief in such cases, the concurrence of three particulars was essential. He must have been in possession of the property; he must have been disturbed in its possession by repeated actions at law, and he must have established his right by successive judgments in his favor:” Holland v. Challen, 110 U. S. 15, 19.

In the present case the bill is not a bill to quiet title, because it is not brought to prevent a multiplicity of suits against the plaintiff by a successful litigant in ejectment cases; nor is it a bill to remove a cloud from a title, because it is apparent from the facts in the bill and in the adjudication of the Board of Property, which is attached to it, that the right of the Commonwealth is not a mere “cloud,” but is so substantial that if evidence of it were offered in an action at law, the case would go to the jury.

The plaintiff cited the following cases to demonstrate that equity will sometimes assume jurisdiction in cases involving title to land, to wit: Sears v. Scranton Trust Co., 228 Pa. 126; Pennsylvania Co. v. Railroad Co., 204 Pa. 356, and Wilhelm’s Appeal, 79 Pa. 120. These cases are all based upon the principle decided by the Supreme Court in Sears v. Scranton Trust Co., 228 Pa. 127, in these words: “The fact that ejectment might lie will not necessarily oust the jurisdiction of equity. . . . Whatever may be the prayer of a bill, if the kernel of the controversy is the legal title to land, then equity cannot be invoked; but where the question of legal title is incidental and subordinate to other elements which call for the exercise of equitable remedies, equity will take and retain jurisdiction.”

We have already held that the kernel of the controversy in this case is the legal title to the 54.91 acres tract. Having conveyed whatever title he had in the 54.91 acres tract to the American International Corporation, the plaintiff divested himself thereof, and he cannot now be heard to complain because, having divested himself of his title, he cannot maintain an action of ejectment, and, therefore, cannot establish his title.

It appears from the pleadings that the plaintiff filed a caveat before the Board of Property, and appeared and presented evidence before that body. Section 11 of the Act of April 3, 1792, 3 Sm. Laws, 70, applies to the leading question in this proceeding. The issuance of a patent under this section is binding and conclusive against “all parties and privies to the said caveat or suit,” and is not binding or conclusive upon other parties. The patent issued by the Commonwealth is nothing more than its quit-claim deed, evidencing the transfer from the Commonwealth to the patentee of whatever right, title or interest the Commonwealth may have in the lands patented. It follows, therefore, that the plaintiff, by filing of his caveat, made the finding of the Board of Property binding and conclusive against him.

The sixth cause of demurrer alleges: “That upon the face of the plaintiff's bill it appears that the plaintiff has an adequate remedy at law;” and the seventh clause alleges: “That upon the face of the plaintiff’s bill it appears that the plaintiff does not now have, and never did have, an undisputed legal title to the land in controversy, nor to all of the purchase money in escrow, wherefore he is not entitled to the relief prayed for.”

We consider our conclusions relating to the third, fourth and fifth causes of demurrer to be conclusive, and, therefore, we only say, in disposing of the sixth and seventh causes of demurrer, that they are sustained. We think the plaintiff in this case had an adequate remedy at law: Black v. American International Corporation, 264 Pa. 260; Mercantile Library Co. v. University of Pennsylvania, 220 Pa. 328.

It appears from the record in this case that the plaintiff does not have an undisputed legal title to the land in controversy, nor to all of the purchase money in escrow, and, therefore, an injunction ought not to issue: Hicks v. Gas Co., 207 Pa. 570; Nanheim v. Smith, 253 Pa. 380.

In accordance, therefore, with the doctrine recognized and enforced in the cases above cited, and without expression of opinion on the merits of the case, we must decide that we have no jurisdiction to grant the relief prayed for, and that the demurrer of the United States Shipping Board Emergency Fleet Corporation, and all the causes of demurrer but the first of James F. Woodward, Secretary of Internal Affairs of the Commonwealth of Pennsylvania, are sustained and the bill dismissed.

From William Jenkins Wilcox, Harrisburg, Pa.


source: Caselaw Access Project

author: Langham, P. J.,

license: Public Domain

text:
    Italo-French Produce Co. v. Dellapa, and Zeno, terre-tenant.

      Judgment — Lien—Revival—Five years’ limit — Deed—Recording—Acts of April 16, 1849, and June 1, 1887.

    1. Where judgment is entered against a defendant and becomes a lien on his land, and within five years thereafter the owner conveys the land to another, who immediately places his deed on record, the plaintiff in the judgment loses his lien on the land if he does not issue a scire facias to revive within five years from the date of the judgment.
    2. The Act of April 10, 1849, P. L. 663, does not apply to such a case.
    3. The Act of April 16, 1849, P. L. 663, is not repealed by the Act of June 1, 1887, P. L. 289.
    4. Under the Act of June 1, 1887, if a deed to a terre-tenant is on record, the scire facias to revive the judgment and continue the lien must name the terre-tenant. If the deed is not on record or the terre-tenant is not in possession of the land, the Act of April 16, 1849, applies; that is, the judgment must be regularly revived against the defendant, and, if so, the lien of the original judgment will continue for a period of five years from the date of the recording of the deed.
    5. The word “regularly,” as used in the Act of April 16, 1849, can only mean revival within the time prescribed by law; that is, five years.

      Scire facias to revive judgment. Affidavit of defence raising questions of law. C. P. Indiana Co., Sept. T., 1921, No. 219.

      S. J. Telford, for plaintiff; E. E. Crops, for terre-tenant.
    Dec. 3, 1921.
   Langham, P. J.,

This case came on to be heard by argument of counsel on an affidavit of defence on the part of Frank Zeno, terre-tenant, raising questions of law.

The pertinent facts, which are admitted, in so far as Frank Zeno, the terre-tenant, is concerned, are as follows:

(a) April 21, 1916, original judgment entered by Italo-French Produce Company v. Vito Dellapa, trading as Vito Dellapa & Bro., to No. 215, June Term, 1916.

(b) Jan. 28, 1919, Vito Dellapa and wife conveyed a lot of ground to Eugenio Trimarchi et al., deed therefor being recorded on Jan. 28, 1919, in Deed Book, vol. 170, page 226.

(c) Sept. 29, 1919, Eugenio Trimarchi et ux. et al. conveyed the same lot of ground to Frank Zeno and Joe Martinelli, deed therefor being recorded on Sept. 29, 1919, in Deed Book, vol. 176, page 183.

(d) March 23, 1920, Joe Martinelli conveyed his undivided one-half interest in above lot of ground to Frank Zeno, deed therefor being recorded on March 23, 1920, in Deed Book, vol. 179, page 164.

(e) Aug. 6, 1921, sci. fa. was issued upon judgment No. 215, June Term, 1916, entered as above set out on April 21, 1916.

It will be observed that (a) all of the deeds covering the three transfers were placed on record on the respective dates of delivery, and all were of record prior to the issuing of the sci. fa. and prior to the expiration of the judgment sought to be revived; and (b) that the sci. fa. was issued on Aug. 6, 1921, almost four months after the lien of the judgment had expired, said original judgment having been entered on April 21, 1916. Under such circumstances, the law is well settled that the judgment had lost its lien as to land aliened during the five-year period.

“If a judgment be not revived within five years from its entry, either by amicable scire facias or by writ of scire facias issued adversely, the lien expires as to other creditors who have a lien at the time or procure one subsequently; or, as against purchasers, whether or not the deed is recorded. It remains a lien against the defendant, however, without revival. After five years it loses its lien as to one who bought the land whilst it was a lien:” 2 Johnson’s Pennsylvania Practice (Ed. of 1911), page 239, par. 44, wherein are cited a number of cases in the foot-notes, among them the case of Pipher v. Duke, 13 Pa. Superior Ct. 279.

In the case of Pipher v. Duke, 13 Pa. Superior Ct. 279, in a per curiam opinion, the court said: “Unfortunately for the plaintiff, on the date of the amicable revival, the lien of the judgment had expired, and no action of the parties to it could restore it to life as against the land that had been aliened in the meantime, whether the deed to the alienee was on record or not. This seems too plain to require discussion.”

In the case above cited an amicable revival was signed by the defendant, and at a later date a scire facias was issued adversely against the terre-tenant, whilst in the case at bar the scire facias issued was against both the defendant and the terre-tenant; but the cases are parallel in the controlling fact, namely, in both the attempt at revival was after the expiration of the five-year period in which the original judgment sought to be revived continued to be a lien. In other words, the case of Pipher v. Duke (which was decided in 1900 and has not been overruled) lays down the rule that where a judgment is not revived within the five-year period, its lien is lost as to land aliened in the meantime. That being the situation in the case at bar, it is ruled by that decision.

Some question has arisen as to the effect upon the ease at bar of the Act of April 16, 1849, P. L. 663, but a close examination of that act will show that a case such as the one at bar is not within its contemplation. It provides: “In all cases when a judgment has been or shall be regularly revived between the original parties, the period of five years during which the lien of the original judgment continues shall only commence to run in favor of the terre-tenant from the time that he or she has placed their deed on record: Provided, that this act shall not apply to any cases which have been finally adjudicated, or where the terre-tenant is in actual possession of the land bound by such judgment by himself or tenant.”

The purpose and effect of this act were passed upon in the case of Wetmore v. Wetmore, 155 Pa. 607 (1893), in which Mr. Justice Dean said, inter alia: “Unquestionably, the obvious intent of this act was to continue the lien of the original judgment against the land of the debtor by a revival against him alone, unless the purchaser or terre-tenant put his deed upon record or was in actual possession, in which cases the five years commenced to run in his favor from the date of recording the deed, or from the date he took possession of the land, personally or by his tenant. We so held in Porter v. Hitchcock, 98 Pa. 625. ... It recognizes two, and only two, kinds of notice to the judgment creditor that the land bound by the lien of his judgment has passed to another than his debtor. Both notices are constructive; the one, the public record which he is presumed to know; the other, the occupancy of the land which he is presumed to see; from the date of the existence of either fact, the five years commence to run in favor of the terre-tenant.” The contention in that case was that actual knowledge on the part of the plaintiff in a judgment of an unrecorded conveyance of land bound by it brought the plaintiff within the provisions of that act and the benefits of the five-year period inured to the terre-tenant. The lower court adopted this view and rendered judgment in favor of the terre-tenant; but the Supreme Court refused to so hold, affirming the case, however, for the reason that the terre-tenant had been in possession of the land, and that, therefore, one of the two kinds of notice was present which were contemplated by the act. In view of the discussion to follow, it is important to observe that in that case the judgment against the defendant had been regularly revived before the expiration of each five-year period.

At this point reference is made to the Act of June 1,1887, P. L. 289, which provides: “And no proceeding shall be available to continue the lien of said judgment against a terre-tenant, whose deed for the. land bound by said judgment has been recorded, except by agreement in writing, signed by the terre-tenant and entered on the proper docket, or the terre-tenant, or terre-tenants, be named as such in the original scire facias.”

In the case of Uhler v. Moses, 200 Pa. 498, it was decided, in an opinion by Mr. Justice Dean, that the Act of 1887, above quoted, did not repeal the Act of April 16, 1849, P. L. 663. The result is that both acts are in effect, and it is interesting to contemplate the status of the law as to revival of judgments, particularly as regards terre-tenants.

Under the Act of 1887, if a deed to a terre-tenant is on record, the scire facias to revive the judgment and continue the lien must name the terre-tenant. If (1) the deed is not on record, or (2) the terre-tenant is not in possession of the land, then the Act of 1849 applies; that is, the judgment must be regularly revived against the defendant; and, if so, the lien of the original judgment will continue for a period of five years from the date of the recording of the deed. The purpose of the Act of 1849 is apparent, namely, to protect the plaintiff’s judgment, regularly revived against the defendant, by giving him five years after knowledge of the sale of land bound by it to another to revive the judgment against the land so aliened. The words of the Act of 1849 are: “When a judgment has been or shall be regularly revived between the original parties, . . . etc.” The word “regularly,” as applied to revival of a judgment, could only mean revival within the time prescribed by law; that is, five years. . It was designed, partly, to give added protection to a plaintiff who was diligent in preserving the lien of his judgment against the defendant by reviving it “regularly,” by providing that, as to such a judgment, he had the right to revive it as to land aliened within five years from the date of recording of the deed therefor; but it was not designed to give a plaintiff any further extension of time to revive against a terre-tenant, where such plaintiff was lax in failing to revive his original judgment against the defendant “regularly;” that is, within five years from its entry. If the facts in the present case were that plaintiff had “regularly,” that is, within five years from April 21, 1916, the date of entry, revived his original judgment against the defendant, and at that time no deed was on record to a terre-tenant, or no terre-tenant was in actual possession, then we concede that he would have had five years from the date of recording such deed to the terre-tenant to revive and continue the lien against the land owned by the terre-tenant. But the last deed for the land aliened being on record on March 23, 1920, more than a year prior to the expiration of the original judgment (it being entered April 21, 1916), the only manner in which the plaintiff could preserve his lien against the land sold to and owned by the terre-tenant was by issuing his scire facias within said five-year period and naming the terre-tenant, as provided by the Act of 1887. Having failed to issue his scire facias to revive the original judgment within said five-year period, the lien is lost as to the land of the terre-tenant, as decided in Pipher v. Duke, 13 Pa. Superior Ct. 279.

If a judgment creditor could secure a lien against a terre-tenant four months after the expiration of the lien against a defendant, as in this case, we can see no reason why a lien could not be secured against a terre-tenant fourteen years after the expiration of the lien against the original defendant, and by the same line of reasoning, no purchaser would be safe in purchasing real estate where there were judgments of record against the grantor that had lost their liens and the record remained unsatisfied. In the case at bar it is true that the lien of plaintiff was in force when this particular terre-tenant purchased, but the plaintiff lost his right to continue said lien against the lands of the terre-tenant by his failure to “regularly” revive his judgment within the period of five years from the date of its entry.

And now, Dec. 3, 1921, the facts involved in this matter being admitted, and a question of law being raised by the affidavit of defence to the sci. fa. affecting the terre-tenant, Prank Zeno, after argument, and upon due consideration, it is ordered and decreed that the scire facias issued in the above stated case, in so far as it affects Prank Zeno, the terre-tenant, and the lands aliened to him, be discharged and set aside.

From James L. Jack, Indiana, Pa.


author: Reader, J.,

text:
    Menich v. Bizic. Ootracic v. Bizic & Bizic.

      Uniform Partnership Act — Sale of partnership property on execution against member of firm — Marshaling assets between creditors of a partner and of the firm, — Distribution of proceeds of sheriff’s sale.

    1. The Uniform Partnership Act of March 26, 1915, §25 (c), P. Ti. 18, 24, provides: “A partner’s right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership.” Therefore, a sale of the interest of a partner in partnership property on a writ of execution against him individually passes only his interest in the partnership.
    2. The sheriff, having in his possession executions against a partnership and other executions against one of the partners individually, sold some of the partnership property on one of the executions against the individual partner, and then sold the remaining assets on an execution against the, firm; HeW, that the principle of the marshaling of assets did not apply, and that the partnership writs should first be paid out of the fund and the residue should be divided between the two partners individually, or applied on the individual writs against them.
    Distribution of fieri facias No. 20, June Term, 1921, and fieri facias No. 23, June Term, 1921. C. P. Beaver Co.

      Reed & Reed, for Steve Ootracic; Moorhead & Marshall, for R. D. Deutsch.
    Aug. 11, 1921.
   Reader, J.,

The question involved in this case is the distribution of a fund in the hands of the Sheriff of Beaver County. The fund in his hands amounts to $1380.60, realized by him out of the sale of personal property on two writs of fieri facias; one writ of Rade Menich v. Mike Bizic, at No. 20, June Term, 1921; the other writ that of Steve Ootracic v. Pete Bizic and Mike Bizic, at No. 23, June Term, 1921.

It seems that Mike Bizic and Pete Bizic were partners, carrying on business in the Borough of Midland, in Beaver County. Part of the partners’ property was a motor-truck, owned by them and used in their business. On the writ at No. 20, June Term, 1921, against Mike Bizic, the sheriff attempted to sell the half interest of Mike Bizic in this truck. On the other writ, at No. 23, June Term, 1921, the sheriff sold the undivided one-half interest of Pete Bizic in the truck and all the remaining partnership personal property. Prom the sale of the half interest of Mike Bizic in the truck the sheriff realized $450; from the sale of the half interest of Pete Bizie in the truck he realized $250, and from the sale of the remainder of the partnership property he realized $680.60.

At the time of the sale there were in the sheriff’s hands six executions, as follows:

Rade Menich v. Mike Bizic, fieri facias No. 20, June Term, 1921.

Steve Ootracic v. Pete Bizic and Mike Bizic, fieri facias No. 23, June Term, 1921.

B. Silverman v. Mike Bizic, fieri facias No. 28, June Term, 1921.

Steve Ootracic v. Pete Bizic and Mike Bizic, fieri facias No. 30, June Term, 1921.

R. D. Deutsch v. Mike Bizic, fieri facias No. 32, June Term, 1921.

Cairnes & Co. v. Mike Bizic, fieri facias No. 35, June Term, 1921.

Subsequent to the sale on the writs above mentioned, from which the fund for distribution is derived, there came into the hands of the sheriff on May 19, 1921, a writ of Steve Ootracic v. Mike Bizic and Pete Bizic, being fieri facias No. 67, June Term, 1921. There were no writs against Pete Bizic individually.

Certain preferred claims exist for rent and wages, which all parties in interest concede are to be first paid out of the proceeds of sale, namely: Mike Keasor, rent, $80; Frank Damico, rent, $129; John Domski, wages, $200.

On behalf of the execution creditors of the two partners it is contended that the partnership writs should be first paid in full out of the proceeds of sale and the balance divided equally between the individual partners, Pete Bizic and Mike Bizic. It is conceded that, upon making distribution in this manner, the share awarded to Mike Bizic should be applied on account first of the writ of Rade Menich against Mike Bizic, at No. 20, June Term, 1921. It is contended that the one-half of the fund remaining after the payment of partnership writs should be paid to Pete Bizic, against whom there are no individual executions.

On the other hand, individual execution creditors of Mike Bizic, particularly R. D. Deutsch, plaintiff in the writ at No. 32, June Term, 1921, contend that the proceeds of the sale of the half interest of Mike Bizic in the motor-truck, amounting to $450, constitutes a fund separate from the proceeds of the sale of the other property sold upon the partnership writ. They also contend that the individual creditors of Mike Bizic, under fieri facias, Nos. 20, 28 and 32, June Term, 1921, had a lien only on Mike Bizic’s interest in the firm property after the payment of the firm debts, while the firm creditors had a lien on both funds. They, therefore, ask the the court to apply the doctrine of the marshaling of assets and apply the sum of $930.60 realized on the sale under fieri facias No. 23, June Term, 1921, to the payment of the partnership writs, leaving the fund of $450 realized on the sale on the writ of Rade Menich, at No. 20, June Term, 1921, to be applied to the executions against Mike Bizic alone.

The court is of opinion that there is but one fund for distribution in this case, and that it represents partnership property.

The attempt of the sheriff to sell the undivided interest of Mike Bizic in the motor-truck on the writ at No. 20, June Term, 1921, passed no title to an interest in said truck as such. The only effect of a sale of the interest of a partner in the partnership on a writ of execution against the partner individually is to sell simply the interest of the partner in the partnership as such and not in any specific articles of property belonging to the partnership. This principle is stated in the Uniform Partnership Act of March 26, 1915, § 25 (c), P. L. 18, in the following manner: “A partner’s right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership.”

In view of the fact that no attempt was made to prevent or to set aside the sale of the interest of the partner Mike Bizic in the truck on this writ, and as the sheriff was permitted to consummate the sale and receive the proceeds thereof, the court is of opinion that this part of the fund in the sheriff’s hands, as well as that realized in the sale under the writ at No. 23, June Term, 1921, against the partnership, should be treated as partnership property. The act of the sheriff in attempting to sell the interest of the individual partner in this specific article of partnership property could not change its character and make it the property of the individual partner. Neither could his act change the rule which makes partnership property first of all subject to the payment of partnership debts. This long established rule of law relating to partnership property is restated in the Uniform Partnership Act, above cited, in section 40 (h), as follows: “When partnership property and the individual properties of the partners are in the possession of a court for distribution, partnership creditors shall have priority on partnership property, and separate creditors on individual property, saving the rights of lien or secured creditors as heretofore.”

The court is of opinion that, under the facts of this case, the principle of marshaling assets has no application. If the fund be treated as but one fund, representing partnership property, the creditors of an individual partner can have no claim upon this fund until partnership liabilities are paid and the individual share of each partner in the residue, if any, is ascertained. Even if there were two funds in the hands of the sheriff, one representing the property of the partnership, the other the property of Mike Bizic, as contended by his creditors, the rule would not apply. In order that the principle of marshaling may apply, there must he two funds belonging to a common debtor of the several creditors claiming, upon both of which funds certain creditors have a lien, while the creditor seeking to apply the principle has a lien upon only one of such funds. Manifestly this is not the situation before the court in this case, for, upon the basis of the contention of R. D. Deutsch, execution creditor of Mike Bizic, there are two funds not of a common debtor, but of two distinct debtors — the partnership and the individual partner, Mike Bizic.

The rule, as above stated, is settled in Pennsylvania by numerous cases: Gearhart v. Jordan, 11 Pa. 325; Lloyd et al. v. Galbraith et al., 32 Pa. 103; Fessler v. Hickernell, 82 Pa. 150; Knouf’s Appeal, 91 Pa. 78; Huston’s Appeal, 69 Pa. 485; Datesman’s Appeal, 77 Pa. 243.

The foregoing cases recognize an apparent exception to the rule as above stated to this extent: that if the funds belong to different persons, and the fund not taken on the execution of one creditor is the one which in equity is primarily liable, the principle may be applied so as to enable another creditor who will otherwise lose his remedy to have applied on account of his claim the fund which was primarily liable and which should have been first seized and applied on the execution of the other creditor. An illustration of this exception is found in Huston’s Appeal, above cited, where it was held: “Where one creditor has a judgment against principal and surety, and another has a judgment against the surety alone; if in such a case the creditor of the two collect his debt from the surety, the other creditor is entitled to the use of his judgment.”

No such equity is shown to exist in the case now before the court as would bring it within this exception. If, upon a settlement of the partnership assets and liabilities, it were apparent that Pete Bizic were indebted to Mike Bizic in the partnership account, such an equity might arise. But no Such equity can be ascertained prior to a settlement of the partnership affairs. No such settlement appears to have been made in the case before the court. It has been held in the cases of Fessler v. Hickernell and Knouf’s Appeal, above cited, that no such settlement of partnership affairs can be made by the court in a proceeding for subrogation or marshaling of assets.

The court is, therefore, of opinion that the principle of the marshaling of assets cannot be applied in this case. It follows that the partnership writs should first be paid out of the fund in the hands of the sheriff, and the residue remaining after their payment be divided between the two partners individually, the share of each individual partner being applied to the individual writs, if any, against each partner in the hands of the sheriff.

The court is also of opinion that the writ of Steve Ootracic against the two partners, at No. 67, June Term, 1921, is entitled to be paid out of the fund in the hands of the sheriff. While this writ came into the hands of the sheriff subsequent to the sale, the fund realized from the sale of the partnership property was still in the hands of the sheriff, and this execution became a lien upon the fund: Sullivan v. Tinker, 140 Pa. 35; Young, Smyth, Field & Co. v. Levy, 6 Pa. Superior Ct. 23.

In accordance with the conclusions stated in the foregoing opinion, distribution of the fund in the sheriff’s hands will be made in accordance with the folio-wing

Schedule of distribution.

Fund in hands of sheriff. $1380.60

Mike Keasor, rent. $80.00

Frank Damico, rent. 129.00

John Domski, wages. 200.00

Steve Ootracic, fieri facias No. 23, June Term,

1921 — debt, interest and costs... 226.75

Steve Ootracic, fieri facias No. 30, June Term,

1921 — debt, interest and costs. 174.25

Steve Ootracic, fieri facias No. 67, June Term,

1921 — debt, interest, costs and attorney’s commission . 190.74

- 1000-74

Fund belonging to individual partners. $379.86

Pete Bizic, one-half. $189.93

One-half of Mike Bizic applied on fieri facias of Rade Menich at No. 20, June Term, 1921:

Costs . 52.25

Debt and interest. 137.68

- $379.86

Order.

Now, Aug. 11, 1921, it is ordered, adjudged and decreed that the sheriff pay out the fund in his hands in accordance with the foregoing schedule of distribution, unless exceptions be filed to the same within ten days from this date.

From F. H. Laird, Beaver, Fa.


author: Lindsey, P. J.,

text:
    Letchock’s Adoption.

      Parent and child — Adoption—Act of May 19, 1887.

    1. Under the Pennsylvania statutes relating to adoption, the essentials are (1) the agreement of the adoptor to perform the duties of parent; (2) the satisfaction of the court that the welfare of the child will he promoted by the adoption; and (3) the consent of the parents, if living.
    2. The only case in which the consent of a living parent may be dispensed with is when the parent has neglected or refused to provide for the child for one year or more, proven to the court.
    3. A parent who has placed a child with a charitable society which has agreed to support it cannot be said to have neglected or refused to provide for the child.
    4. The consent of parents requisite is the present consent to the particular adoption prayed for by the petitioner at the time of presentation of the petition, the parties being presumed to be present in court; a paper signed by the mother of a child consenting that “said child may be legally adopted by such person or persons as may be chosen” by a third party, is not a consent to the particular adoption required by the act.
    5. A parent cannot divest himself of his status and rights as a parent, and a contract purporting so to do is void as against public policy; he may transfer to a third party the custody of his child, but such transfer is revocable by the parent at any time.
    6. The only circumstances in which the consent to an adoption of a “charitable institution,” under the Act of 1887, can take the place of consent of the parents, is where such “charitable institution” shall have supported such child for at least one year, and where there are no parents surviving, or, if surviving, they "shall have neglected or refused to provide for his or her child or children for the period of one year or upwards, proven to the court.”
    Petition for adoption. C. P. Warren Co., Sept. T., 1921.

      D. U. Arird, for petitioners.
    Oct. 24, 1921.
   Lindsey, P. J.,

The petition of George Bruce Young and Ivah May Young prays for a decree for the adoption by them of Florence Letchock, a minor child of Margaret Letchock, as one of their heirs.

Adoption is the accepting of the child of another as one’s own child and heir. It constitutes between the adoptor and adopted the legal relation of parent and child as well as heir. The relation of parent and child is, of course, a natural one. In our system of social organization the law recognizes this natural relation and annexes to it certain legal attributes or clothes the parties being in this relation with certain rights and duties to each other and to others which they are conceived of as having by reason of sustaining that relation to each other. In other words, it is a status carrying with it certain legal consequences and the rights and duties of the parties exist as such, not by reason of any contract or act of theirs, but solely by reason of this position or relation in which they stand. The extent to which such rights and duties may be affected by contract is, therefore, limited. Adoption is the constituting of this legal relation where it does not exist naturally, but more especially with respect to the inheritance of property. Adoption usually carries with it the right of the custody of the adopted (if a minor), but its primary object is to constitute a succession in the inheritance of property. In general, parents have the duties of protecting, educating and maintaining their children. Correlative to these duties and mainly for the purpose of enabling their fulfillment, parents have the rights of authority over, the custody of and the labor and services of their children. These rights and duties of natural parents are in general and for the same reason extended to adopting parents, and, indeed, to all persons de facto standing in the place of parents to minors; but this does not involve the idea of adoption as an heir, and is solely for the benefit of the minor. When, for instance, the natural parents, through poverty, are unable to fulfill their duties to their children of support, maintenance and education, their rights as parents must give way, so far as is necessary for appropriate provision for the child, In general, however, the suspension of the rights of natural parents is only countenanced by the law so far as it is necessary for the benefit of the child. The family relation being the foundation of our system of social organization, its preservation, so far as possible, is recognized by the law as a principle of public policy, and interference with it in any particular case is limited by actual necessity. Thus, where a natural parent, incapable of performing his or her parental duties to a child, transfers the right of custody to a third person (individual or society), capable of and willing to perform such duties, such transfer is always revocable by the parent, and he may resume the custody if his incapacity be removed, provided only that the welfare of the child will not be prejudiced. Contracts absolutely relinquishing parental rights are void as against public policy. The parent may not divest himself of his duties as parent (or of his status as parent), and for this reason cannot irrevocably transfer his rights. He may lawfully procure the performance of these duties by others if unable himself to perform them, and, so far as is necessary for this purpose, confer his rights upon the foster parent; but this is the extent to which he can go, for the reason that these reciprocal rights and duties are not matters of contract, but integral essentials of the very organization of society. These are principles of our fundamental law whieh must be kept in mind in considering all questions relating to the status of parent and child.

Adoption, which was recognized in the civil law, was unknown to the common law of England. The law of adoption, therefore, in America in general and in Pennsylvania in particular, is entirely statutory: Ballard v. Ward, 89 Pa. 358.

“The only methods of adoption of children known to the law of Pennsylvania are those prescribed by Act of May 4, 1855, § 7, P. L. 430, as re-enacted by the Act of May 19, 1887, § 1, P. L. 125, and the Act of April 2, 1872, P. L. 31. The former provides for adoption by petition to, and decree of, the Court of Common Pleas, and the latter for adoption by deed duly executed and recorded:” Carroll’s Estate, 219 Pa. 440; Keeler’s Adoption, 52 Pa. Superior Ct. 516.

To the acts above referred to must now be added that of May 28, 1915, P. L. 580, which, however, merely re-enacts the Act of 1887 in the same language, with an addition to be referred to later.

The proceeding being purely statutory, the statute must be strictly followed in order to give the court jurisdiction: Carroll’s Estate, 219 Pa. 440; Keeler’s Adoption, 52 Pa. Superior Ct. 516; Luccareni’s Adoption, 13 Dist. R. 782.

The Act of 1887 provides: “It shall be lawful for any person desirous of adopting any child as his or her heir, or as one of his or her heirs, to present his or her petition to such court in the county where he or she may be resident, declaring such desire and that he or she will perform all the duties of a parent to such child; and such court, if satisfied that the welfare of such child will be promoted by such adoption, may, with the consent of the parents or surviving parent of such child, or if the father or mother, from drunkenness, profligacy or other cause, shall have neglected or refused to provide for his or her child or children for the period of one year or upwards, proven to the court, with the consent of the non-neglecting father or mother alone, or, if none, of the next friend of such child, or of the guardians or overseers of the poor, or of such charitable institution as shall have supported such child for at least one year, decree that such child shall assume the name of the adopting parent and have all the rights of a child and heir of such adopting parent, and be subject to the duties of such child,” etc.

The essentials are, therefore, first, the agreement of the adoptor to perform the duties of parent; second, the satisfaction of-the court that the welfare of the child will he promoted by the adoption; and, third, the consent of the parents.

In the case at bar 'we have the first of the above three essentials; as to the second, we have the affidavits of two persons that they are acquainted with the petitioners and that they are persons of respectability and property, and that affiants believe that the welfare of the child will be promoted by the adoption prayed for, which is in accordance with the practice which has become current under the act of assembly. The third essential to give the court jurisdiction, however, the consent of the parents of the child, is entirely lacking.

The effect of an adoption on the natural parents is not entirely clear, but it would seem that, between them and the child, the legal incidents of the relation of parent and child were taken from them and transferred to the adopting parents, so far at least as necessary for the performance of the parental duties assumed by the adoptor. It would seem clear, for instance, that, as to a minor, the right of custody would belong to the adopting parent as against the natural parent, and that the latter was deprived of the same. To give the court jurisdiction to so adjudicate the rights of the natural parent, he must be in court, either actually or constructively, by having appeared voluntarily or had notice served upon him. The act only gives the court jurisdiction to enter a decree “with the consent” of the natural parent, and a decree cannot be made without such consent: Luccareni’s Adoption, 13 Dist. R. 782; Sleep’s Adoption, 6 Dist. R. 256; Booth v. Van Allen, 7 Phila. 401.

The consent of the parents must be their consent to the particular adoption prayed for, and must be presently, given at the time of hearing the petition by the court. “The act contemplates a proceeding in court between parties who are to satisfy the court ‘that the welfare of such child will be promoted by such adoption.’ Although the proceeding is by petition, the facts stated in it must be supposed to be made as of the date when the petition is presented:” Vendermis v. Gilbert, 10 Pa. Superior Ct. 570.

In that case the father of the child had signed a written consent to the adoption, but died the day before the petition was presented to the court. The Superior Court held that there was no present consent of the parent as required by the act, and, hence, the-court below had no jurisdiction to enter the decree.

“The act contemplates a proceeding in court after all parties interested have had due notice, and who are to satisfy the court that the welfare of the child will be promoted by such adoption. The assent of the parties mentioned in the act in giving or waiving a right should affirmatively appear: ” Keeler’s Adoption 52 Pa. Superior Ct. 516.

The petition in this case avers “that on or about the 26th day of May, A. D, 1920, Margaret Letchock, of Stockton, Pa., being the mother of Florence Letchoek, who at that time was at the age of three weeks old, and was born on May 5, 1920, relinquished all the right of said child and committed said child to the care and custody of the Children’s Home Society of Pennsylvania, and also consented that the same child be legally adopted by such person or persons as might be chosen by the Children’s Home Society of Pennsylvania without further notice, etc.” Attached to the petition as “Exhibit A” is a paper purporting to bear the signature of Margaret Letchock and reading as follows: “Know all men by these presents, that Margaret Letchock, of Stockton, Pa., being the mother of Florence Letchock, a child aged three weeks, born May 5, 1920, do hereby relinquish all my right to the said child, and do hereby commit said child to the care and custody of the Children’s Home Society of Pennsylvania, and do hereby consent that the said child may be legally adopted by such person or persons as may be chosen by the said Children’s Home Society of Pennsylvania without any further notice to the undersigned. Done at Hazelton, Pa., this 26th day of May, 1920.” There is also attached a paper headed “Agreement of placement, dated June 8, 1920,” and signed by “C. W. Karns, State Superintendent,” and by Geo. B. Young and Ivah Mae Young, and a paper headed “Children’s Home Society of Pennsylvania,” which recites the giving of the “release” by the mother, the placing of the child with the petitioners and giving consent of said society to the adoption prayed for. It seems too clear for any argument that the paper purporting to be signed by Margaret Letchock, if designed to divest her of her status or rights as a parent, is illegal and void for such purpose as against public policy. It is legal and valid as a transfer to the said society of the care and custody of the said child as against all others than the parent, but as such is revocable by the parent at any time, and we are furnished with no evidence, and it is not averred, that it has not been revoked. So far as adoption is concerned, it is a mere expression of willingness to have the child adopted, and is not, and does not purport to be, a consent to the adoption prayed for. So far as waiving by the parent of notice of an adoption is concerned, manifestly the parent cannot waive the jurisdictional requirement of the act of assembly.

Under the act, the only circumstances under which the consent of a “charitable institution” can replace that of the parents is where such “charitable institution” shall have supported such child for at least one year, and where there are no parents surviving, or if both parents “shall have neglected or refused to provide for his or her child or children for the period of one year or upwards, proven to the court.”

In order to enable the court to make a decree of adoption where both parents are living, the consent of both must appear, or one or both of them must be shown to have wilfully neglected the child for a period of one year or upward: Com. v. Beears, 1 Berks Co. L. J. 361.

In the case at bar we have no evidence or allegation of any neglect or abandonment by the mother; indeed, the facts show the exact opposite; that she provided for said child by the arrangement she made with the Children’s Home Society. If it be argued that to turn it over to the society constituted an abandonment, it is sufficient to say that such an argument is an absolute contradiction of the essential fact. As was said by Judge Allison in Booth v. Van Allen, 7 Phila. 401: “In what proper sense can a mother be charged with having entirely abandoned her child, who has made careful provision for it, secured for it a home and caretaker — one who has agreed to stand in the relation of parent to the infant and perform for it the duties of a mother.”

In Keeler’s Adoption, 62 Pa. Superior Ct. 616, the mother signed the following paper: “Finding my situation in life wholly unfitted for the proper bringing up and education of my infant child, and considering its future welfare, I hereby give and surrender the same to the future care and keeping of the Sisters of Charity, Seventeenth Street and Woodland Avenue, and I hereby promise and agree not to interfere with it or them in the proper care and education of the said infant, nor with any one to whom the Sisters may hereafter confide the said child for adoption and faithfully carries out my intention of having it brought up in a good Christian family.” The court held that this paper was not an abandonment or neglect of the child or consent to its adoption under the Act of 1887, but quite the reverse, and set aside a decree obtained without notice to the mother, and this was sustained by the Superior Court.

This same scheme of this same Children’s Home Society was before the Common Pleas of Allegheny County in the case of Sleep’s Adoption, 6 Dist. R. 256, and based on practically the same papers, as set forth in the report of that case. In that case the Rev. William Henry Thompson, alleged to be State Superintendent of the Children’s Home Society, testified. The opinion in that case by Judge Ewing is so clear and convincing, in our judgment, that we quote from it at some length, as follows:

“It appears from the evidence that the Children’s Home Society was incorporated in the State of Illinois, and, according to Mr. Thompson’s testimony, he was appointed as agent of this society for Pennsylvania, and he, as such agent, selects advisory boards in different places. Their business is to get children from parents or others in charge of them, and find places for them, where the people to whom they are given in charge will have them legally adopted. Whether the home society in Chicago has any actual home or asylum for children or not does not appear from the testimony. The society here — if there be a society — has no home; simply has its agent to collect money to pay expenses and salaries, and to get children and to find them homes, or to find people who want children and then find the children to take.

“We are of the opinion that such a society, with such a superintendency and association, is not the next friend of a child, nor is it such a ‘charitable institution’ as is provided for in the Act of May 19, 1887, P. L. 125-6, authorizing them to agree to the adoption of a child; and it has not supported the child for a year, and, therefore, on that account alone, there being no consent of the mother to the adoption, this order allowing the adoption should be revoked.

“It seems from the testimony of Mr. Thompson, the agent, that a part of the plan of the association, or of his work, is in finding a home for a child, and to give the child, in the end, wholly in charge of the parties with whom it is left, under the supervision of himself or other agents of the society, for a probationary period, and then, if satisfactory to him, under an agreement with them that they shall legally adopt the child. And it would seem from his testimony and from the facts in this case that it is considered a part of the humanitarian and philanthropic business of the society, for the alleged good of the child, and especially for the satisfaction of the adopting parents, that the actual parent shall not have intercourse with the child, and, in fact, shall not know where the child is; and a part of the plan shown by the adoption papers in this case is to destroy the identity of the child, so that the mother shall not know where the child is or the child shall not know who the mother is, and the adopting parents shall not know the parents of the child.

“This plan of undertaking to destroy the identity of the child, to hide it from its mother, and hide its mother and parentage from it, is, in our judgment, contrary to sound public policy, directly tending to encourage illegitimacy; is a wrong to the child itself, because those who have the education and training of the child should know its parentage and the peculiarities it inherited. It seems to us that it is so contrary to public policy as to make the alleged contract entered into in this case between the mother and Mr. Thompson void. It ignores her affection for her child, the respect that a child should have for the parent. It is so contrary to all our preconceived notions of a true public policy, of morality, of humanity, and of Christianity, that it is shocking to us that any persons who believe in the Bible, or who have any regard for parental affection, should adopt such a plan. No doubt there are many cases where it is well, and where it is a good, and where it is a philanthropic, act to procure a good home for a homeless child, or for a child whose parents may be unable to maintain it, and that the bosom of a family is a better place for the rearing of a child into a good citizen than an orphan asylum or other kindred institution, and we do not doubt the good motives of the worthy gentleman in charge of the work of this society in this State, but we do doubt his judgment in the matter, and the work could be done without disregarding the rights of parents and the affections of a mother for a child. To take a child from its parent, and to consign it entirely to the care of another, is a very serious thing for any one to do, whether it be a private citizen or a court. It is to us, when it has to be done, a matter of as serious consideration as the sentencing of a convicted criminal, and it should never be done except on careful consideration and for clearly good reasons.”

In this case the title of the society in question is given as “The Children’s Home Society of Pennsylvania.” The word “incorporated” is placed after the name in the heading of the three papers attached to the petition, but it is nowhere stated or indicated where or how or when it was incorporated or that it is a corporation of any state. The agreement of placement is signed “C. W. Karns, State Superintendent,” and the consent to adoption by “Thomas S. Wilcox, President; Thomas Charlesworth, Secretary, and C. W. Karns, State Superintendent,” and in neither is there recited any action of a board of directors. Whether the society is organized the same as it was at the time of Sleep’s Adoption or not, it does not appear here that it is such a “charitable institution” as is contemplated in the act of assembly.

It does affirmatively appear, however, that the Children’s Home Society had not supported the child in question for a year, and for this reason is not such an institution as is authorized by the act to consent to adoptions in certain circumstances. The society received the child from the mother May 26, 1920, and placed it with the petitioners June 8, 1920, since which time it has been supported by the petitioners. If it be argued that the support by petitioners is support by the society because under authority derived from it, by the same reasoning the support is that of the mother because the authority of the society to place the child with petitioners is derived from her.

Finally, there is no consent of the father of the child; it is not alleged that he abandoned it; it is not stated who the father is; he is not mentioned at all in the petition or accompanying papers. It nowhere appears or is alleged that the child is illegitimate. However, even if that were the case, it is not clear that his existence can safely be ignored in all cases. It is implied in Booth v. Van Allen, 7 Phila. 401, that the consent of the father of an illegitimate child is not necessary to an adoption; but that was where the mother consented, and it has been held by Judge Terry in the Common Pleas of Wyoming County, in a carefully considered opinion in Swartwood’s Adoption, 19 Dist. R. 819, that “it is evident that the putative father has a right to be heard before his offspring can be surrendered by the mother to a stranger; and this opportunity should be afforded him, not after, but before a decree is made.”

The only change made by the Act of 1915 in the Act of 1887 is to dispense with the requirement of the consent of the parents in two other sets of circumstances, which, however, have no relation to the facts in the case at bar, and, hence, need not be considered here.

NOTE. — Syllabus by the court.

To sum up the discussion. There is no jurisdiction in the court to decree the adoption prayed for, because:

(a) There is no consent of either father or mother of the child to the adoption prayed for.

(b) There is no explanation whatever of the absence of the consent of the father; no allegation that he abandoned the child, and no allegation that the child is not legitimate.

(c) The paper purporting to have been signed by the mother of the child May 26, 1920, is not a consent to the adoption prayed for, and can in no way abridge the requirement of the act of assembly for such consent in order to give the court jurisdiction to decree an adoption.

(d) It affirmatively appears that the mother did not abandon -the child, and, therefore, the contingency provided for in the act, in which a “charitable institution’’ might consent in place of the parents, is not present in this case.

(e) The ^Children's Home Society of Pennsylvania is not shown to be a “charitable institution” within the meaning of the act of assembly authorizing such institutions to consent to adoptions in certain contingencies.

(f) The Children’s Home Society of Pennsylvania did not support the child in this case for a year, as affirmatively appears, and, therefore, is in that respect not within the charitable institution authorized by the act of assembly to consent to adoptions in certain contingencies.

And now, Oct. 24, 1921, the petition is dismissed, at the costs of the petitioners.

From W. S. Clark, Warren, Fa.


author: McIlvaine, P. J.,

text:
    North Strabane Township’s Tax Collector.

      Public officers — Tax collector — Appointment—Statutes—Repeal—Repeal by implication — Acts of May 17,1917, and July H, 1917.

      1. Under the General Township Act of July 14, 1917, § 183, P. L. 840, 861, the Court of Quarter Sessions has the power to fill a vacancy in the office of tax collector.
    2. The Act of May 17, 1917, P. L. 221, which vested the power in the county commissioners, is repealed by implication by the Act of July 14, 1917, F. L. 840, 861, inasmuch as the two acts are wholly inconsistent.
    3. The legislature had no power to provide, as it did in section 1501 of the Act of July 14, 1917, P. L. 840, 998, that “this act shall not repeal” any other act then in force, if the act was wholly inconsistent with an earlier act.
    Rule to set aside and vacate an appointment to fill the office of tax collector. Q. S. Washington Co., Peb. T., 1921, No. 228.

      Howard W. Hughes, County Solicitor, for rule; Erwin Cummins, contra.
    April 22, 1921.
   McIlvaine, P. J.,

An Act of Assembly approved May 17, 1917, P. L. 221, provides as follows: “If any vacancy shall occur in the office of tax collector ... of any township . . .; or if any other vacancy shall occur by death, resignation or otherwise, . . . the county commissioners of the county in which such vacancy exists shall fill such office by appointing a suitable person resident of the district in which such vacancy exists. . . .”

An Act of Assembly approved July 14, 1917, § 183, P. L. 840, provides: “If the electors of any township of the second class shall fail to choose a tax collector, ... or if a vacancy shall occur in the office by death, . . . the Court of Quarter Sessions shall, upon presentation of a petition of any citizen who is a resident of the township, setting forth the facts, appoint a person to fill the vacancy for the unexpired term of the person whose place he is appointed to fill.”

The court, acting under the provisions of the last named act, appointed W. P. McConnell tax collector for North Strabane Township to fill an existing vacancy. The county commissioners, acting under the first named act, appointed D. W. Templeton to fill the same vacancy. The solicitor for the county commissioners now asks the court, upon the rule herein granted, to vacate the appointment that it made, to the end that the appointment made by the county commissioners may stand as the valid and legal appointment.

Section 183 of the Act approved July 14, 1917, P. L. 840, is part of “An act concerning townships, and revising, amending and consolidating the law relating thereto;” which act is generally known and cited as “The General Township Act.” That township code thus enacted has twenty-two chapters. The last chapter is designated “Acts of the General Assembly Repealed.” After specifically repealing a great number of acts specifically designated, section 1501 provides: “All other acts and parts of acts inconsistent with this act are repealed.” And then provides: “This act shall not repeal or modify any of the provisions of any act of assembly amendatory of law in force at the time of the passage of this act, or otherwise adopted at the session of the General Assembly of 1917, whether such acts were adopted prior to the passage of this act or shall be adopted subsequent to the passage of this act.”

What effect, if any, does section 1501 of the General Township Act have upon the Act of Assembly approved May 17, 1917, and upon the 183rd section of the Act approved July 14, 1917? Or, to state the question in another way, does section 1501 repeal section 183 of the act of which it is a part? In other words, must this court so construe this act of assembly as to put the legislature in the position of making a law and repealing it in the same act of assembly? We think not. And, therefore, such interpretation of section 1501 must be sought as not to involve the legislature in such a glaring inconsistency. We must remember that the last chapter of the code act was devoted to specific repeals of specific acts of assembly, and all that that part of section 1501 is intended to assert is that the legislature in that chapter did not intend to specifically repeal any act that had previously been passed by that same legislature, or that might be passed after the General Township Act was passed. That, therefore, would leave both the Act of May 17, 1917, P. L. 221, and the 183rd section of the Act of Assembly approved July 14, 1917, P. L. 840, on the statute book, and the question which one should prevail would be a matter for the courts of the State to determine. This being the case, we are of opinion, and were at the time we made the appointment that is now sought to be annulled, that the act of assembly last passed is the one that should be observed in making appointments to vacancies in the office of township tax collector, and not the former act. The same power in these two acts is given to different bodies, and they are wholly inconsistent, and being wholly inconsistent, we think that the former act, although it is not expressly repealed by section 1501, yet it is repealed by implication, and that it was not in the power of the Legislature of 1917 to say that the courts should not find that the former act was so repealed by implication.

And now, April 22, 1921, this rule came on to be heard, and was argued by counsel; whereupon it is ordered, adjudged and decreed that the same be discharged, at the cost of Washington County.

From Harry D. Hamilton, Washington, Pa.