author: Williams, P. J.,

text:
    Zietz v. Schembs.

      Executions — Sheriff’s sale — Distribution — Objection to — Appointment of auditor — Issue framed — Trial by jury — Act of 1846.

    1. Under the Act of April 20, 1846, § 2, P. L. 411, which provides that, if the right of the purchaser of real estate as a lien creditor at sheriff’s sale to the money-mentioned in the return by the sheriff of the sale shall be questioned by an interested party, the court shall appoint an auditor to distribute the proceeds or shall direct an issue to determine the validity of the disputed lien, one who objects to the distribution of the proceeds and asks for the appointment of an auditor cannot later have an issue framed.
    2. Unless there is a statutory provision to the contrary, the right to a trial by jury must be confined to cases at common law and to disputed issues before judgment and does not extend to executions and matters growing out of executions.
    Order framing issue. C. P. Montgomery Co., June T., 1918, No. 66.

      High, Dettra & Swartz, for Rodo W. Zietz.

      Wayne P. Rambo, for Henry P. Schneider.
    Jan. 11, 1927.
   Williams, P. J.,

Henry P. Schneider and Annie E. Miller, lien claimants, having appealed from the order framing an issue of Oct. 4, 1926 — the reasons for which order do not appear of record — the court, in compliance with Rule 58 of the Supreme Court, herein files of record at least a brief statement of the reasons for such order in the form of an opinion.

Bodo W. Zietz, the plaintiff and, on the 11th day of September, 1918, the purchaser of real estate at sheriff’s sale, having produced to the sheriff a duly certified statement from the proper records, under the hand and official seal of the proper officer, showing that the plaintiff was a first lien creditor entitled to receive all of the proceeds of the sale, the sheriff received the receipt of the purchaser for the amount which, from- the record, he appeared to be entitled to receive. Only three (3) days thereafter and before the sheriff had made a return of the sale, Henry P. Schneider, who appeared from the record to be a second lien creditor, instead of waiting until the return had been made and, then, filing an affidavit which set forth the nature and character of the material facts he alleged to be in dispute and asking the court to direct an issue to determine the validity of the lien, presented a petition praying that the sheriff be directed to make no settlement, except upon the payment in cash of the amount of the bid ($10,000) and to pay the said sum into court and that an auditor be appointed to distribute said sum.

After the granting of a rule to show cause, etc., upon the plaintiff and sheriff, the acceptance by each of service of the rule, the filing of an answer by the plaintiff and the taking and filing of depositions in support of the rule, the late Honorable Aaron S. Swartz, then President Judge, being of opinion that the sheriff should be given more time in which to act, on the 17th day of December, ordered the holding, for fifteen (15) days, of the application of the petitioner and, after the filing, on the 4th day of January of the following year, by the sheriff of a special return and by Schneider of an exception to return, Judge Swartz, understanding the pending proceedings were then in such position that the Act of April 20, 1846, P. L. 411-12, relative to lien creditors becoming purchasers at judicial sales, could be applied and the parties having agreed upon an auditor to determine the rights of the lien purchaser, on the 16th day of June, appointed Franklin L. Wright, Esq., auditor to pass upon that question and upon any other matter relating to the proceedings the parties by agreement might submit to him.

When the reference thus reached the auditor, he found, however, not only that the parties would not agree to submit to him any matter relating to the proceedings other than the determination of the rights of the lien creditor by their agreement specially referred to him by Judge Swartz but, also, that, even in passing upon the question of the rights of the plaintiff, his counsel, apparently, took the position that the auditor had no power other than to make a report distributing the proceeds of the sale with the facts and reasons upon which such distribution should be made. Accordingly, at the expiration of a little more than three (3) years and four (4) months, the auditor, in a report specifically finding that the validity of the judgment duly entered in the foreclosure proceedings of the plaintiff against the defendant was not open to attack before an auditor appointed to make a report distributing the proceeds of the sheriff’s sale, that, since the Act of April 20, 1846, supra, conferred upon the auditor no power other than the determination of questions of distribution, he was without authority to decide the issue of fact involved, that the question to be determined was whether there had been a merger of the mortgage held by the plaintiff upon the premises of the defendant by the conveyance to the nominee of the plaintiff, or a neutralization of the bond of the defendant and a consequent invalidation of the mortgage lien, and that the real matter in controversy, the right of the plaintiff to give his receipt when such right was disputed by Schneider, could be adjudicated only by an issue to determine the validity of the lien under which the plaintiff claimed his right, respectfully referred the matter back to the court with the recommendation that an issue be granted.

To the filed report of the auditor — and it may be of importance — Schneider took no exception. On the contrary, he simply marked time for nearly seven months, or until the 14th day of May, 1923, when his counsel moved the grant of an issue in accordance with the findings of the auditor, the issue, if the parties could agree, to be framed by them, or, in the event they should be unable to agree, then by the court, and the late Honorable John Faber Miller, who, upon the retirement from the bench of Judge Swartz, had become President Judge, upheld the motion and granted the issue in the form moved. After another delay, this time of almost two (2) years, Schneider filed a petition for an issue and, two (2) days later, March 11, 1925, the plaintiff filed his petition praying the court to frame an issue. On the 29th day of January, 1926, as it had become evident the parties could not agree on the issue, Judge Miller, desirous of hearing argument before undertaking to frame the issue, ordered both petitions on the March Argument List. Unfortunately, in February, Judge Miller passed away, so that, by the time the case came on for argument, the action already was about eight (8) years old, the late President Judges Swartz and Miller, before whom, during all this time, every once in a while, in some form or other, the action had kept constantly reappearing, were both dead and the writer of this opinion was in densest ignorance of the many curious aspects of the intricate legal antique eventually placed on exhibition.

To make bad enough worse, Judge Knight, before his elevation to the bench, had been of counsel for Schneider and, of course, was not qualified to participate, as he sedulously avoided participating, in the argument and consequent deliberations. Happily, however, we had the help of President Judge Solly, of the Orphans’ Court — who, specially presiding, sat with us at the argument— and, so aided, on the 4th day of October, made the interlocutory order from which, within five (5) days, not only Schneider but also Annie E. Miller, who appears from the record to be a third lien creditor, took two (2) appeals apiece.

Note has been made that, before the award of the issue, Schneider made no affidavit that there were material facts in dispute but petitioned the appointment of an auditor to distribute the amount of the bid, that Schneider took no exception to the report as filed of the auditor and that Schneider, through his counsel, in the motion for the grant of an issue, was the first to suggest the issue be framed by the court. Schneider may not be, therefore, in the best of complaining positions, because he not only got everything for which he asked but, apparently, as hereinafter will more fully appear, secured a great deal more than he deserved.

It is to be observed that section 2 of the Act of April 20, 1846, supra, provides that, if the right of the purchaser of real estate at sheriff’s sale to the money mentioned in the return by the sheriff of the proceedings of the said sale be questioned by any person interested, thereupon the court shall appoint an auditor to distribute the proceeds of said sale or shall direct an issue to determine the validity of the disputed lien; that is, the power of the court is limited to the doing of one of two things, either the appointment of an auditor or the direction of an issue. If the latter be done, then the issue must be limited to a determination of the validity of the lien. In other words, when Schneider questioned the right of the plaintiff to the money mentioned in the special return of the sheriff, the court was authorized by statute to appoint an auditor or to direct an issue and, if the court directed an issue, then, by statute, such issue had to be confined to the validity of the lien. Because of the limitation imposed by law, the court, in framing the issue, specifically confined it to the inquiry, broadly speaking, Is the mortgage a valid lien? For the court to have framed a more comprehensive issue might have been a usurpation of unauthorized authority and undelegated power.

In the light of the foregoing, this opinion could properly be brought to an immediate conclusion but, since the case is to be reviewed, further discussion may not be altogether out of place.

As already observed, the remedies section 2, supra, affords an interested person to dispute the right of the purchaser to the money mentioned in the return, while two-fold, are not cumulative but alternative. The disputing person interested may have either an auditor or an issue. Both, however, he may not have: Second Nat. Bank v. Penna., etc., Coal Co., 140 Pa. 628, 631-2 (1891), and Peoples’ Savings Bank v. Mosier, 199 Pa. 375, 376-7 (1901). Schneider, if he wished to question the right of the plaintiff to the money mentioned in the return, had an election between the two remedies given by the act of assembly. If he wanted the validity of the mortgage determined, he should have asked for the direction of an issue. To the contrary, being desirous of having the proceeds of the sale distributed, he requested the appointment of an auditor. The selection of the mode of procedure was his. He made the choice by praying for the appointment of an auditor. Having so exercised his right of selection, he should have exhausted the remedy of his own choice instead of later repudiating it by seeking the direction of an issue. It may be, therefore, that Schneider, having once secured the appointment of an auditor, by such act for all time barred himself from the procurement of an issue and, if so, any complaint from him as to the form of a subsequently granted issue he moved the court to frame may not come with especially good grace. In fact, such fault-finding may serve only to bring to the foreground the question, Can any final judgment in his favor ever be entered on an issue?

It is settled law in many states and commonwealths, including Pennsylvania, that a party who voluntarily chooses, or even acquiesces in, the determination of a controversy by some tribunal other than a jury, ©r in some manner other than by jury trial, will not be heard afterwards to object that the controversy should have been tried by jury but, on the contrary, will be held to have waived his right to that mode of trial. Such a free-will chooser cannot be permitted to take the chance of a favorable decision in a tribunal of his selection and then to be heard to question the authority of that tribunal: 24 Cyc., 149, 160, Juries. IV. Loss And Waiver of Right, C. How Jury May Be Waived. 9. Choice Of Remedies. Certainly, if Schneider was never entitled to an issue, he is in no position to censure the form of the one gratuitously given him. Ordinarily, people are not expected to look gift horses in the mouth.

Schneider made no demand for an issue until between six (6) and seven (7) years after, at his request, the court had appointed an auditor, until the case had been over three (3) years before the auditor, during which time he held numerous hearings and thereat took a large amount of testimony and until nearly two (2) years after all exceptions to the report of the auditor following notice of the intended filing of the report had been withdrawn and no exception had been taken to the report as filed. Subsequent to all this delay and the expense necessarily involved, only an unusually strong case would have justified the Supreme Court in reversing for the refusal to award an issue, Second Nat. Bank v. Penna. etc., Coal Co., supra, and it would seem that a case equally as strong would be required to justify a reversal because of the grant of an issue in a form not pleasing to the fancy of an always delaying and ever expense increasing lien claimant.

There is still another reason why Schneider was not entitled to the issue allowed. The second proviso of section 2, supra, declares that, before an issue shall be directed upon the distribution of money arising from sales under execution, the applicant for such issue shall make affidavit that there are material facts in dispute and shall set forth the nature and character of the disputed facts and that, upon this affidavit, the court shall determine whether an issue shall be granted. Schneider made no such affidavit. A complaining creditor wishing to obtain an issue, Schneider, without requesting the appointment of an auditor and not until after the sheriff had made his return, should have filed an affidavit that the judgment sought to be attacked was fraudulent and intended to hinder and delay creditors. The averments of this affidavit could have been denied by the plaintiff, depositions could have been taken and on them the court could have determined the necessity for the grant of an issue: Moore v. Dunn and Fell, 147 Pa. 359, 367 (1892). As it was, however, Schneider, making no attempt to comply with the necessary statutory prerequisite for an issue and after he had waived all right to such issue, through the indulgence of the plaintiff’s counsel — who agreed in writing to the grant of an issue — and by the grace of the court, secured an issue to which he was not entitled. In what shape, then, is he to express resentment at the form of the issue directed. That any issue whatsoever was granted constituted his great good fortune.

Instead of excepting to the findings of the auditor to the effect that the application for his appointment had been erroneous, Schneider practically conceded the fatality of his election of remedy by moving for the grant of an issue. In so doing, however, he cut the ground right out from under his feet, for, as already seen, by obtaining the appointment of an auditor, Schneider had.waived his right to an issue and was bound to go on to a finish before the auditor. Consequently, either Schneider should have filed exceptions to the report of the auditor because of his failure as directed to determine the rights of the lien purchaser or else Schneider should have been prepared to accept with gratitude any issue subsequently bestowed as a favor.

The fundamental weakness in the approach of counsel for the lien creditors to the legal question presented seems to be that he assumes his clients have some inherent right to a jury trial. In so approaching the controversy,' he takes entirely too much for granted. If there be any right to demand an issue in a case like the one at bar, it exists alone by statute. Only in cases at common law is the right to a trial by jury constitutionally secured and, even in them, the right pertains solely to the mainly disputed issue before judgment. Such right cannot arise on a collateral issue or after judgment. The right to jury trial does not pertain to any matter of execution or to any matter growing out of execution. It is true the legislature may extend trial by jury to execution matters, but, if the legislature does so extend the right, the legislature may, as it did in the Act of April 20, 1846, supra, prescribe the terms on which the right may be secured: Moore v. Dunn and Fell, supra, 366. With the condition precedent to a jury trial imposed on lien creditors by section 2, supra, both complaining claimants failed to comply. If neither ever had a right to the submission of an issue to a jury, surely, neither has a right to any particular form of such an issue.

From Aaron S. Swartz, Jr., Norristown, Pa.

NOTE. — Appeal quashed by the Supreme Court.


source: Caselaw Access Project

author: Hassler, J.,

license: Public Domain

text:
    Wenger v. Dull.

      Automobile collision — Damages—Justice of the peace — Jurisdiction of — • Acts of July 7, 1879, June 30,1919, and June U, 1923.

    Neither the Act of June 14, 1923, P. L. 718, nor the Act of June 30, 1919, P. Li. 678, which it amended, repealed the Act of July 7, 1879, P. L. 194, giving a justice of the peace jurisdiction up to $300. The $100 limitation in the Act of 1923 applies only to suits against non-resident defendants. A justice of the peace has jurisdiction, therefore, in a suit to recover $150 damages for injury to the plaintiH’s automobile by collision.
    Statutory demurrer. C. P. Lancaster Co., Feb. T., 1927, No. 84.

      W. Hensel Brown, for plaintiff; Charles W. Baby, for defendant.
    July 2, 1927.
   Hassler, J.,

On Jan. 19, 1927, the plaintiff brought a suit in trespass against the defendant before J. C. Baker, a justice of the peace. A hearing was duly had on Jan. 26, 1927, and, the defendant not appearing, evidence was presented to the effect that Dull had negligently run into the automobile of the plaintiff and damaged it to the extent of $150. Judgment was entered in favor of the plaintiff for the damages claimed by the plaintiff, and the defendant thereupon appealed from the said judgment, and this appeal was entered to the above number and term. The plaintiff filed his statement, in which he claimed to recover the sum of $150 for the injuries occasioned to the automobile, and the defendant raises the point of law that the justice had no jurisdiction of the case.

Section 30 of the Act of June 14, 1923, P. L. 718, which amends section 36 of the Act of June 30, 1919, P. L. 678, reads that “all civil actions for damages arising from the use and operation of any motor-vehicle may, at the discretion of the plaintiff, be brought before any alderman, magistrate or justice of the peace in the county where the alleged damages were sustained, if the plaintiff has had such damages repaired and shall produce a receipted bill for the same properly sworn to by the party making such repairs, or his agent, or said action may be brought in the Court of Common Pleas of said county, and service of process in either case may be made by the sheriff of the county where the suit is brought, deputizing the sheriff of the county wherein the defendant or his registered agent resides, or where service may be had upon him under the existing laws of this Commonwealth . . . provided, that no action involving more than $100 shall be brought before any alderman, magistrate or justice of the peace.”

The plaintiff claims that this act only applies to suits against non-resident defendants, and that, 'as the defendant lives within the county, it is not applicable to this case; whereas, the defendant asserts that it applies to all actions for damages caused by automobiles, and, as the amount of the damages exceeded $100, no jurisdiction was vested in the justice to entertain the suit.

In Sharp v. Boyer, 6 D. & C. 597, this same question came before Judge Stotz, of Northampton County: He held that neither the Act of 1923 nor the Act of 1919, which it amended, repealed the Act of July 7, 1879, P. L. 194. Section 1 of the Act of 1879 provides “that the aldermen, magistrates and justices of the peace in this Commonwealth shall have concurrent jurisdiction with the Courts of Common Pleas of all actions arising from contract, either express or implied, and of all actions of trespass and of trover and conversion wherein the sum demanded does not exceed $300, except in cases of real contract, where the title to lands or tenements may come in question, or action upon promise of marriage.” He, therefore, decided that “a justice of the peace has jurisdiction in trespass where the injury is by the direct act of the party, whether done wilfully or negligently,” and that “his jurisdiction extends to injuries due to the negligent operation of an automobile where the force which caused the injuries was directly applied.” In Petros v. Crawl, 74 Pitts. L. J. 55, Judge Jones decided the same question in the same way, and in Smith v. Algeo, 74 Pitts. L. J. 224, Judge Rowand held that a judgment for $190, entered by a magistrate against a defendant for damages due to a collision between automobiles, was correctly entered and that the Act of 1923 was not intended to modify the jurisdiction of a justice of the peace generally in trespass cases. The contrary doctrine was held by Judge Lloyd in Felmly v. Michael, 6 D. & C. 52, but, upon carefully examining all the cases, we are of the opinion that the former is the sounder of the two propositions.

In Gingrich v. Sheaffer, 16 Pa. Superior Ct. 299, it was held that “the damages for which a plaintiff may sue before a justice” of the peace .“in this form of action are such as arise where the injury is immediate and would be recoverable in the common-law action of trespass vi et a/nnis, and not such as are consequential and would be recoverable, if at all, only in an action of trespass on the case,” and that “it is the nature of the demand, not merely the form of action in which the summons issues, that determines the justice’s jurisdiction.” In the recent case of Sprout v. Kirk, 80 Pa. Superior Ct. 514, the court reiterated the same principles and held that, where, in an action of trespass originating before a justice of the peace, the damages were alleged to have been caused by a collision between an automobile and a farm wagon, and the evidence was conflicting, the question of negligence should have been submitted to a jury.

In this case, the plaintiff’s statement avers that, on Oct. 18, 1926, the plaintiff was driving an Essex automobile at a legal rate of speed on the Black Horse Road towards the Lincoln Highway, and while driving on the extreme right-hand side of said road, the defendant, who was also driving a car, turned off from the said Lincoln Highway on to his left-hand side of the Black Horse Road and struck the automobile of the plaintiff and damaged it to the amount of $150; that the injuries sustained by the machine of the plaintiff were caused wholly and exclusively by the careless, reckless and negligent manner in which the defendant operated his car. If on the trial the plaintiff by due proof can sustain these allegations, he can recover the damages claimed.

We are of the opinion that the point of law raised by the defendant should be decided in favor of the plaintiff.

Question of law raised decided in favor of plaintiff.

From George Ross Eshleman, Lancaster, Pa.


author: Stock, J.,

text:
    Paris v. Reichard.

      Equity — Preliminary objections — Pwrties—Jurisdiction.
    1. A bill in equity to restrain the use of a registered trade-mark is not defective on preliminary objections, because a former owner of the trade-mark, who, the bill averred, had assigned the same to the plaintiff, was not made a party to the bill.
    2. Preliminary objections to a bill in equity cannot be based on matters extraneous to the averments contained in the bill.
    3. A preliminary objection to a bill in equity which alleges that certain persons have an interest in the matter in litigation, when there is nothing in the bill to support this allegation, cannot be sustained.
    4. The Act of March 5, 1925, P. L. 23, relating to the procedure in certain cases in which the jurisdiction of a court of first instance is questioned, is not applicable to preliminary objections to a bill in equity where no question of the jurisdiction of either the defendant or of the cause of action is involved.
    Preliminary objections to bill. C. P. York Co., Aug. T., 1924, No. 2, in Equity.

      M. S. Niles, for plaintiff; Stewart & Gerber, for defendant.
    Dec. 27, 1926.
   Stock, J.,

Defendant filed an answer, preliminarily objecting to the bill for the reason that it is defective for want of specifically named parties who should be joined as plaintiffs. This objection is raised under Rule 8 of the Rules of Equity Practice, and comes within the first reason therein defined. The practice in such matters is regulated by the provisions of Rule 49.

The objection to the non-joinder of Raphael N. Paris as a party plaintiff is not sustained by an examination of the bill. In paragraph 8 of the bill it is averred that the trade-mark “Cadet,” which had been registered in the United States Patent Office, was assigned by Raphael N. Paris to plaintiff. In paragraph 16 it is averred that “Raphael N. Paris . . . transferred to the plaintiff all of his right, title and interest in and to said label and trade-mark, ‘Havana Cadet.’ ” It, therefore, does not appear that Raphael N. Paris had any interest in either of these trade-marks which are the basis of this suit.

The objections further allege that certain persons, complete strangers to the record, have an interest in the said labels and an interest in the subject-matter of this suit. There is nothing in the bill to sustain this.

The final clause of Rule 48 provides that objection may be made to the bill “ (7) for any other reason which does not require the production of evidence to sustain it.” These objections are formal preliminary objections, similar in character to the common law demurrer. To base objections on matters extraneous to the averments contained in the bill would be to have a “speaking demurrer,” as Judge Shafer held in a very similar case: Wettengel v. Robinson et al., 74 Pitts. L. J. 325.

Rule 17 permits the court to direct the joinder of additional parties at any stage of the suit.

Defendant further bases his motion upon the authority of the act of assembly approved March 5, 1925, P. L. 23, which is entitled “An act in relation to the procedure in certain classes of cases in which there is raised a question as to the jurisdiction of a court of first instance over the defendant or the cause of action for which suit is brought, and authorizing appeals from the preliminary decision of such questions.” This act is not applicable to the instant case. No question of jurisdiction, either of the defendant or of the cause of action, is involved.

And now, to wit, Dec. 27, 1926, the objections raised to the bill by the answer are overruled, and the defendant is directed to answer the bill within fifteen days after notice hereof, under penalty of having the bill taken pro confesso. From Richard E. Cochran, York, Pa.


author: Moyer, Dep. Att’y-Gen.,

text:
    Capital Stock Reports.

      Corporations — First class — Reports to Auditor General — Acts of 1889 and 1927.

    Under the Act of May 4, 1927, P. L. 742, amending sections 20 and 21 of the Act of June 1, 1889', P. L. 420, corporations of the first class are not required to file capital stock reports with the Auditor General and pay a tax thereon, even though they have capital stock and are conducted for profit.
    Department of Justice. Opinion to Hon. J. Lord Rigby, Revenue Deputy, Auditor General’s Department.
    July 14, 1927.
   Moyer, Dep. Att’y-Gen.,

You have recently inquired of this department by letter whether, under Act No. 386, approved by the Governor on May 4, 1927, which amends sections 20 and 21 of the Act of June 1, 1889, P. L. 420, as amended, first class corporations are relieved from filing capital stock reports and paying a capital stock tax, even though they may have issued capital stock and are conducted for profit.

The question which you have asked requires this department to determine whether or not the expression used in the amendments in said act, “not having capital stock and not conducted for profit,” modifies not only its imme-dite antecedent “co-operative agricultural associations,” but also modifies the expression “corporations of the first class.”

The amendments in this act are in exactly the same words as the amendment in Act No. 385, approved by the Governor May 4, 1927. The same question of construction arises in this case as arose with respect to said Act No. 385, concerning which we rendered you an opinion of even date. The reasons therein given for our conclusion are applicable to this case, and for these reason we conclude, and you are advised, that the words “not having capital stock and not conducted for profit” do not modify and qualify the expression “corporations of the first class” as the same are found in said Act No. 386, approved May 4, 1927, and, therefore, corporations of the first class are not required to file capital stock reports with the Auditor General and pay a capital stock tax, even though they may have capital stock and be conducted for profit. From C. P. Addams, Harrisburg, Pa.


author: Van Dusen, J.,

text:
    Maron’s Estate.

      Wills —■ Powers of appointment — Gift over in default of appointment — Words of exclusion — Accrued shares.

    1. The testator left three equal fourth parts of his residuary estate in trust for each of three of his children, A, B and C, for life, with limited power in each such child dying without issue to appoint the remainder of his or her share, or any part thereof, to a certain named grandchild E, or her issue, and in default of appointment the share of each child was to be held upon the same terms of trust as provided for the other children and their issue, excepting therefrom the said grandchild E and her issue. A one-eighth share was left in trust for a son D for his life, with limited power of appointment in favor of said grandchild E (a daughter of D) and her issue, in case of D’s death without other issue than E and her issue, and in default of appointment said share was to be held upon the same terms of trust as provided for the shares of the other children, A, B and C, and their issue. The other one-eighth share was left in trust for the children and issue of D (including E), and if at any time there should cease to be any children or issue of D, then the said share was to be held upon the same terms of trust as provided for the one-eighth share held in trust for D. B died in 1917 without issue, having by will appointed three-fourths of her share to E. D died in 1926 without children or issue, other than E and her issue, having by will exercised his power of appointment in favor of E: Meld, The increments to the trusts for D and for the children and issue of D which came from the unappointed portion of B’s share should be held in trust for A and C.
    2. In such case, the exception of E adheres to the increments, or accrued shares, which came from the unappointed portion of B’s share. This exception overrides a direct gift, as in the case of the trust , for the children and issue of D, and an indirect gift through the exercise of D’s power of appointment over his share.
    3. Gifts over in default of appointment are vested subject to being divested by the exercise of the power of appointment. When the exercise of a limited power of appointment is impossible as to accrued shares by reason of the exclusion of the only possible appointee, there is no power to appoint such accrued shares and no divestiture of the estates created by the gift over in default of appointment.
    Exceptions to adjudications. O. C. Phila. Co., July T., 1916, No. 312.
    Conrad Marón died in 1914. By his -will he divided his residuary estate (after providing for his widow, who took against the will) into four equal parts. The income from each of three of said equal parts was to be paid to each of his three children, Alfred C. Marón, Emily Marón and Laura Marón, for life. The provisions of the will relating to the trust for his daughter, Emily Marón, were as follows:
    “(3) And to pay the income of another of said equal parts to my daughter Emily Marón for the term of her natural life and upon the death of the said Emily Marón then to assign, transfer and pay over the principal of the said estate held in trust for her to such of her children and the issue of any of her deceased children as may be living at the time or times of the distribution of the said share, equally absolutely per stirpes. And if there should be none of her children or the issue of any of her deceased children living at the times of distribution as aforesaid, then my said daughter shall have a limited right of disposition thereof and may by last Will and Testament, or any writing in the nature thereof signed by her, direct, limit and appoint that the whole or any part of the said share of the said residuary estate held in trust for her shall be paid to Mareelle Marón or her issue living at the death of the said Emily Marón in such parts or shares as she may provide; and in default of such appointment then the said share of the said residuary estate shall be held upon the same terms of trust as are hereinafter provided for my other children and their issue, excepting therefrom the said Mareelle Marón and her children and issue.”

      The fourth equal part of the residuary estate was provided for as follows:
    “(5) To divide the remaining one-fourth of said two-thirds part of my residuary estate into two equal shares. And in trust to pay the income of one of said shares to my son Conrad Marón for the term of his natural life, and upon the death of the said Conrad Marón then to transfer, assign and pay over the principal of the said share to and among such of his children and the issue of any of his deceased children as may be living at the time or times of distribution of the said share equally absolutely per stirpes, excepting therefrom his daughter Marcelle Marón and her issue. And if there should be none of the children or issue óf deceased children of my said son Conrad Marón, living at the times of said distribution, other than the said Marcelle Marón and her issue, then my said son Conrad Marón shall have a limited power of disposition over the said one-eighth paid; of said two-thirds of my residuary estate, that is to say my said son Conrad Marón may by his last Will and Testament, or any writing in the nature thereof signed by him, direct, limit and appoint that all or any part of the said one-eighth part of two-thirds of my said residuary estate shall be paid to the said Marcelle Marón and her issue living at his death in such proportion as he may provide, and in default of such appointment then the said one-eighth part of said two-thirds of my said residuary estate shall be held upon the same terms of trust as are above provided for the shares limited in trust for my other children, Alfred C. Marón, Emily Marón, and Laura Marón and their issue.
    “And in trust to hold the other one-eighth of said two-thirds part of my said residuary estate until the death of the survivor of my said four children and my grand-child Marcelle, Marón, and to pay the net income thereof in equal quarterly payments during the period of the said trust to such of the children and the issue of any deceased children of my said son Conrad Marón as may be living at the respective quarterly periods of distribution, including therein the said Marcelle Marón or her issue, and if at any time during the period of the said trust there should cease to be any children of my said son Conrad Marón or the issue of any of his deceased children, then the said trust estate shall cease and determine and the said one-eighth part of two-thirds of my residuary estate shall be held upon the same terms of trust as are next hereinbefore provided for the other one-eighth part of two-thirds of my residuary estate held in trust for my said son Conrad Marón for his life with remainder as above provided.
    “Upon the death of the survivor of my said four children and grand-child Marcelle Marón, the principal of the said one-eighth of two-thirds of my residuary estate shall be distributed to such of the issue of my said son Conrad Marón as may be living at the time or times of distribution equally absolutely per stirpes, including in said distribution the issue, if any, of said Marcelle Marón.”
    He further provided:
    “(6) If at the time of distribution of any of the various trust estates above provided there should be none of my grand-children or issue of any of my deceased grand-children living at the time of distribution so as to take thereunder, then I direct that the income of my entire residuary estate shall be paid to my said wife Anna Marón, if she should be then living, for the term of her natural life and after her death my said Executor and Trustee shall convert the whole of the said estate into cash and transfer, assign and pay over the whole of the said estate to the following named charities in fee and absolutely, namely,” (Various charities were mentioned, the names of which are omitted for the sake of brevity.)

      Emily Marón died Aug. 12, 1917, without issue. In her will she appointed the principal of one-fourth of her share to Marcelle Marón (Marcelle Marón McVeigh), and declared it to be her intention not to exercise the power as to the remaining three-fourths of the share.
    Conrad Y. Marón, referred to in testator’s will as Conrad Marón, a son of testator, died Dec. 14, 1926, without other issue than his daughter, Marcelle Marón McVeigh, and her issue, having by will exercised his power of appointment in her favor.
    The question before the court concerned the disposition of the increments to the trust for Conrad Y. Marón and to the trust for the children and issue of Conrad Y. Mahon. These increments or accrued shares came from the unappointed portion of the share originally held in trust for Emily Marón.
    There were two adjudications relating respectively to these two accrued shares, which awarded both accrued shares to the charities mentioned in the provisions of testator’s will last quoted above. The adjudications decided that the increment to the trust for the children and issue of Conrad Y. Marón which came from Emily Maron’s unappointed share became subject to the same terms as the increment to the trust for Conrad Y. Marón; that Marcelle Marón McVeigh was excluded in the distribution of both increments; that they would not pass under the limitation over in default of appointment in the provisions of testator’s will setting up the trust for Conrad Y. Marón; and that they should be awarded to the charities under • the provisions of testator’s will last above quoted.
    Exceptions were filed to both adjudications on behalf of Alfred C. Marón, Laura Marón and Mae Vanderslice, guardian ad litem for Don Edward Marón, son of Alfred C. Marón; and separate exceptions were filed on behalf of Marcelle Marón McVeigh, and W. Le Roy McKinley, guardian ad litem for the children of Marcelle Marón McVeigh.

      John B. Gest, for Alfred C. Marón, Laura Marón, and Mae Vanderslice, guardian ad litem of the estate of Don Edward Marón, exceptants.

      Frederick J. Knaus, for Marcelle Marón McVeigh, exceptant.

      W. Le Boy McKinley, guardian ad litem of the estates of Desiree Marthe Couser, Leona Mary McVeigh and Joan Laura McVeigh, exceptant.

      Theodore Paul, I. Hazleton Mirkil, John Hempill, Spencer Ervin, Bartram A. Owen, C. S. Wesley, Williams & Sinkler, John Sinclair, John Arthur Brown, Joseph H. Gru-bb, Biddle, Paul, Dawson & Yocum, Frank B. Rhodes, John C. Hinckley, J. Claude Bedford, Franklin Spencer Edmonds, J. Warren Brock, Rodney Bonsall, Carroll R. Williams and James M. West, contra.
    Feb. 17, 1928.
   Van Dusen, J.,

-When testator gave to Emily a power to appoint her share to Marcelle, he took care that her decision should be final and that Marcelle should not take through the gift over in default of appointment. To the latter, therefore, he added the prohibition “excepting therefrom the said Marcelle Marón and her children and issue.” It was argued that this was intended only to prevent any part of Emily’s share from falling into the trust for Conrad’s children, of whom Marcelle was one. But we notice that in the case of Conrad’s share the gift over in default of appointment is not to the other trusts generally, but to the trusts for Alfred, Emily and Laura by name, excluding the share of his own children by failure to name it. If that was all he wanted to accomplish as to Emily’s share, he could have done it in the same way. The exception is so expressed as to admit of no further exception, and must adhere to Emily’s share to the end as it finds its way through the other trusts. It must, therefore, override both a direct gift to Marcelle and her issue such as is found in the trust for Conrad’s children and an indirect gift through Conrad’s power of appointment. The exceptions of Marcelle Marón McVeigh and W. Le Roy McKinley, guardian ad litem for her children to both adjudications, are dismissed.

For this reason, Conrad had no power to appoint to Marcelle the share which accrued from Emily to his trust, as he attempted to do. Testator gave Conrad’s share “in default of appointment” to the shares of Alfred, Emily and Laura. In my adjudication, I concluded that this clause did not apply to Conrad’s share accrued from Emily, because there was no default or failure of appointment. There was no power to appoint at all; and the contingency did not, and never could, affect this share.

' But the court in bane are convinced that this is too literal a reading. In Evans’s Estate, 10 Dist. R. 261; Freeman’s Estate, 15 Dist. R. 928, 85 Pa. Superior Ct. 185, and Ritchie’s Estate, 24 Dist. R. 510, the view is expressed that gifts over in default of appointment are the primary dispositions of the testator and are vested, subject only to be divested by the exercise of the power. If there is no power to appoint at all, there can be no divestiture. When we read the further gift of the testator of his entire estate to charities in the event that there is no grandchild entitled to take under the will, we see that he thought he had so provided that if there were grandchildren (excluding Marcelle and her issue), they would take the whole, and that the charities would take — -not piecemeal, as portions which he had otherwise omitted to provide for fell out, but the whole when the lines of the blood were extinct. From these considerations, we conclude that the shares accrued from Emily to Conrad and to Conrad’s children fall into the shares of Alfred and Laura and do not go to the charities.

The exceptions of Alfred C. Marón, Laura Marón and Mae Vanderslice, guardian ad litem of Don Edward Marón, to both adjudications are sustained, and distribution is directed in accordance with this opinion.


author: Henry, P. J.

text:
    Shirk’s Estate.

      Wills — Construction—Devise to wife during widowhood.

    Where an experienced member of the bar died without descendants while the Intestate Act of April 8, 1833, P. L. 315, was in force, and by his will gave certain real estate to his wife for life or during widowhood, and then directed that all the residue of his estate “shall descend” as though he had made no will, and the widow elects to take under the will, and then remarries, the widow on remarriage forfeits the estate devised to her, but becomes, under the Act of 1833, entitled to one-half of such real estate for life.
    Petition for declaratory judgment. O. C. Lebanon Co., July T., 1926, No. 7.

      L. Saylor Zimmerman, for petitioners.

      Boy M. Bowman, for Harriet C. Shirk; Hwrry A. Honker, for the estate.
   Henry, P. J.

The surviving widow (since remarried) and all the other next of kin of said Howard C. Shirk, deceased, have petitioned this court for a decree to determine the interest the surviving widow took in certain specified real estate of which the said Howard C. Shirk died seized.

By his last will and testament, the said testator, after giving to his wife absolutely all his silverware, bric-a-brac and household goods and furniture, provided as follows:

“Third. I give and devise to my beloved wife Matilda J. K. Shirk, for and during her natural life only, or so long as she shall remain unmarried, my house and lot of ground situate at the Southwest corner of Cumberland Street and Peach Alley in the City of Lebanon, Pennsylvania, bounded on the north by said Cumberland Street, on the east by Peach Alley, on the south by Walnut Alley and on the west by lot of John Weiss.
“Fourth. I order and direct that all the rest, residue and remainder of my estate, real and personal whatsoever and wheresoever situate, shall descend and be divided as though I had made no will.”

The said testator left to survive him as next of kin his wife, the said Matilda J. K. Shirk, and two sisters, namely, Helen R. Baker and Harriet Cassidy Shirk; and the said Matilda J. K. Shirk has since been married to T. V. McGeehan.

The controversy is only respecting the real estate mentioned and described in the third clause of the will, the effect of the remarriage of the surviving wife, and her interest, if any, in said real estate under the fourth clause of the will.

In reaching a conclusion, we cannot he governed by a thought of what Howard C. Shirk might direct under existing conditions, but we can only consider the language he used in making his will and his condition and surroundings at that time, including, of course, his profession and standing as a lawyer. The said third and fourth clauses of this will are plain and unambiguous. The testator gives the house and lot of ground in question to his wife for and during her natural lifetime only or so long as she remains unmarried, and her marriage consequently ends her interest in this house and lot of ground under the third clause of the will. The fourth clause, however, is a sweeping residuary provision which shows an evident intention not to die intestate as to any portion of his property, and directs that this residuary estate shall descend and be divided as though he had no will, that is, according to the intestate laws then in force in this State. The intestate law then in force was the Act of April 8, 1833, P. L. 315, in section 1, article II, of which it is provided that “where such intestate shall leave a widow and collateral heirs or other kindred, but no issue, the widow shall be entitled to one-half part of the real estate, including the mansion-house and buildings appurtenant thereto, for the term of her life.” The language of the fourth clause itself leaves no room for doubt as to what the testator intended, and this conclusion is strengthened when we consider that Howard C. Shirk was a leader at this bar, where he enjoyed a large and extensive practice, especially in the Orphans’ Court. He knew the commonly accepted, as well as the technical legal meaning of the words he used and, this being so, he must be deemed to have intended that all the residue of his estate, which included the remainder interest in the house and lot in question, was to be distributed as though he had made no will, that is, to the widow who survived him and his collateral heirs, that is, his sisters, under the quoted provisions of the Intestate Act of 1833. It is strongly urged by counsel for the surviving sisters that a construction permitting the surviving wife to participate in this real estate under the fourth clause of the will is inconsistent with the language used by testator in the third clause of the will, where he gave her this real estate for life only or so long as she remained unmarried, and that her interest under the intestate law is a dower interest which she waived when she accepted the terms of the will. The answer to this is that her waiver was of her common-law dower rights and not of any rights under the will, and she is here claiming not against but under the express provisions of the will. While the provisions of the third clause very evidently intended to restrict the surviving wife to an estate during her lifetime or until she remarried, yet there is nothing inconsistent in holding that she could still he a participant under the fourth clause of the will, for this fourth clause, under the conclusion we reach, gives her quite a different estate from that mentioned in the third clause. Under the third clause she had an estate in the whole of this property during lifetime or until she remarried. Under the fourth clause she has a life estate in only one-half of this property during her lifetime.

McGovran’s Estate, 190 Pa. 375, and Everitt’s Estate, 195 Pa. 450, cited by counsel, were cases in which there was express exclusion of certain heirs. The express restricted participation of certain heirs can hardly be authority for the determination of this case, where the testator might have but did not exclude any one from participation under the fourth clause of his will.

It is to be noted that the will describes the western boundary of the house and lot in question as being the lot of John Weiss, while the petition of the parties submitting this matter to the court describes the western boundary as the lot now or late of Ella Miller. The decision in this case will only affect the property as described in the said will of Howard C. Shirk, deceased.

And now, to wit, Feb. 5, 1927, it is adjudged and decreed that Matilda J. K. McGeehan is entitled to one-half part of the real estate mentioned and described in the third clause of the will of Howard C. Shirk, deceased, for the term of her life. From Dawson W. Light, Lebanon, Pa.


author: Stevens, J.

text:
    Bordner v. Houck, County Controller.

      Practice, C. P. — Mandamus—Imposition of costs where the writ is not prosecuted to judgment — Section 19 of the Aet of June 8, 1898.

    In the absence of a judgment for plaintiff upon a demurrer to a writ of alternative mandamus, in which event section 16 of the Act of June 8, 1893, P. L. 348, controls, the disposition of costs is controlled by section 19 of that act, which provides that “the costs of the application for a writ of mandamus, whether such writ is granted or not, also the costs of the writ, if issued and obeyed, or not prosecuted to judgment as aforesaid, may be given or refused according to the discretion of the court.”
    Writ of alternative mandamus. C. P. Berks Co., March T., 1926, No. 134.

      Leonard G. Yoder, for plaintiff; F. A. Marx, for defendant.
   Stevens, J.

When this case was called for argument, it was stated by counsel for the defendant that the warrant in controversy would be approved without the necessity of further proceeding; argument upon the demurrer was not insisted upon, and it was agreed that the costs should be disposed . of by the court.

In the absence of a judgment for the plaintiff upon the demurrer, in which event section 16 of the Act of June 8, 1893, P. L. 348, controls, the disposition of costs is controlled by section 19, which provides that “the costs of the application for a writ of mandamus, whether such writ is granted or not, also the 'Costs of the writ, if issued and obeyed, or not prosecuted to judgment as aforesaid, may be given or refused according to the discretion of the court.” Plaintiff should not be denied his costs. The defendant appears to have acted-in good faith and upon the advice of competent counsel, and for that reason contends that he should not be required to pay the costs when he was conscientiously endeavoring to protect the interests of the county. The County of Berks contends that, in view of the decision of this court by Judge Endlieh in the ease of Dundore v. County Controller, 4 Berks Co. L. J. 390, that prison inspectors are not county officials in the proper sense, and that they receive no salary but only an allowance to defray the necessary expenses of attendance on the duties of their office, the refusal of the controller to approve the warrant on the ground that the plaintiff, as a prison inspector, received his compensation and salary as such in full of all his services rendered to the County of Berks, was entirely without justification.

The position of the county is not without force, but, save where the controller acts capriciously, arbitrarily or otherwise than in good faith, he should not be met with the imposition of costs where, in the performance of his duties, his action has been the result of a mistaken view of the law. In Dundore v. County Controller, 4 Berks Co. L. J. 390, this court gave judgment for the plaintiff without costs, because the case showed questions of a character justifying the controller’s refusal to countersign until judicially overruled. Even though that is not the case here, yet, in view of all the circumstances, we are disposed to follow our action in Com. ex rel. Dickinson v. Wanner, 13 Berks Co. L. J. 112, in directing that the costs be paid by the County of Berks.

And now, April 12, 1926, it is ordered that the costs in this case be paid by the County of Berks.

From Wellington M. Bertolet, Beading, Pa.


author: Cummins, J.,

text:
    Morelli State Bank v. Deolio.

      Sheriff’s sale — Inadequacy of price — Misunderstanding of facts — Resale.
    1. Mere inadequacy of price, without more, is insufficient ground for setting aside a sheriff’s sale, but where such inadequacy is the result of irregularities, misunderstanding or misapprehension, then, in such case, the court, in its discretion, ordinarily ought to set aside the sale and order a resale.
    2. Where it appears that there is a bona fide misunderstanding as to the amount of a bid, resulting in a sale at an inadequate price, the court, in the exercise of its discretion, ought to order a resale.
    Rule to show cause why sheriff’s sale should not be set aside. C. P. Washington Co., Nov. T., 1926, No. 3.

      Myer Goldfarb and A. L. Zeman, for petitioner.

      J. R. Irwin Knox, for respondent; Hapvilton & Pipes, for sheriff.
    May 9, 1927.
   Cummins, J.,

The petitioner, Morelli State Bank of Steuben-ville, on Aug. 24, 1926, pursuant to a power of attorney contained in a certain mortgage bond, caused to be entered against defendants, Mary Deolio, a judgment for $1639.50, with interest from Aug. 24, 1926, with costs, attorney’s commission of 5 per cent., waiving inquisition, exemption and stay of execution; and on the same date caused to be issued on said judgment a writ of execution, a writ of ft. fa., whereunder the real estate described in the mortgage accompanying the aforesaid bond was levied upon, duly advertised and, on Nov. 16, 1926, sold at public outcry to one Joseph Brown at and for the sum of $915. The case is before the court on the execution plaintiff’s rule upon the purchaser, Joseph Brown, and the Sheriff of Washington County to show cause why said sale should not be set aside.

From the facts admitted in the pleadings and the evidence taken on the issue raised by the execution plaintiff’s petition for rule and the respondents’ answers thereto, the court finds the following facts: The amount of the execution plaintiff’s claim, including debt and taxes, was $1894.35; the property sold has a market value of $3000; the price at which the property sold, to wit, $915, was grossly inadequate; the execution plaintiff had instructed its attorney that “if there will be no other buyers ... to bid for same to justify our claim, plus costs;” W. R. Dennison, Esq., attorney for the execution plaintiff, attended the sale, and had with him his client’s letter instructing him to bid to the amount of its claim and costs, as well as a calculation showing the total amount of his client’s claim, costs and taxes; the execution plaintiff’s attorney knew that the lien of his client’s claim would be divested by the sale; at the sale, execution plaintiff’s attorney, W. R. Dennison, Esq., intended to bid “debt and taxes,” and did either bid “debt and taxes,” or, through a slip of the tongue, said “costs and taxes;” the execution plaintiff has agreed to bid the sum of $1894.35 for the premises in question, and has given its bond in the sum of $3800, conditioned on its bidding such bid in case of a resale. The sale has not been confirmed; no sheriff’s deed has been acknowledged or delivered.

Mere inadequacy of price, without more, is insufficient ground for setting aside a sheriff’s sale (Weitzell’s Lessee v. Fry, 4 Dallas, 218; Trust Co. v. Kelly, 185 Pa. 131; Stroup v. Raymond, 183 Pa. 279), but where such inadequacy is the result of irregularities, misunderstanding or misapprehension, then in such case the court, in its discretion, ordinarily ought to set aside a sale and order a resale: Ritter v. Getz, 161 Pa. 648; Phillips v. Wilson, 164 Pa. 350; Cummings’s Appeal, 23 Pa. 509, 513; Myers’s Appeal, 192 Pa. 458, 460-461.

In Media Title and Trust Co., 185 Pa. 133, Justice Green says: “In a clear case of inadequacy of price, the court will seize hold of a slight irregularity to set aside the sale.” In Ritter v. Getz, 161 Pa. 650, the Supreme Court says : “The price is grossly inadequate, and the court was at liberty to seize upon any other circumstances in order to grant relief.” And in Fidelity B. & L. Ass’n of Lebanon v. Uhler, 199 Pa. 417, 419, the misapprehension of counsel as to what liens were discharged by the sale was recognized by the Supreme Court as a proper matter to be considered in setting aside the sale.

In the instant case, we are satisfied that the execution plaintiff’s attorney knew that the lien of his judgment would be divested, and that having received instructions from his client to bid sufficient to protect his client, and having made a calculation of the amount of his client’s claim, including costs and taxes, we believe it was his intention to bid the amount of the same. Attorney Dennison says that he bid “debt and taxes;” the sheriff says that he bid “costs and taxes.” It might be difficult to determine who is correct in this dispute, but one thing is clear to the court, and that is that there was a misunderstanding or misapprehension between the deputy sheriff who conducted the sale and the execution plaintiff’s attorney as to the latter’s bid; and that this misunderstanding, regardless of who was responsible for it, resulted in the property in question selling at a grossly inadequate price. The court might here remark that the misunderstanding which arose in this case was probably the result of a bad custom prevailing of bidding “costs,” “taxes,” “costs and taxes,” “debt and costs,” &c., at sheriff’s sales, instead of making certain definite money bids. Under all the circumstances of the ease, it would appear to be unjust and inequitable not to order a resale.

And now, May 9, 1927, plaintiff’s rule to show cause made absolute; the sale to Joseph Brown of the land in question at and for the price of $915 is set aside and a resale ordered.

From I-Iarry D. Hamilton, Washington, Pa.


author: Whitten, J.,

text:
    Marx et al. v. Perrus et al.

      Replevin — Conditional sales — Bailment lease — Chattels real — Fixtures— Affidavit of defense — Practice—Acts of April 19, 1901, May 14, 1915, and May 14,1925.

    1. The Act of May 14, 1925, P. L. 722, applies only to a conditional sale of a chattel attached, or to be attached, to realty and does not apply to a chattel delivered under a bailment lease.
    2. Replevin will not lie for the recovery of personal property which has become a permanent and necessary part of realty.
    ■ 3. On the other hand, if the chattels are not a constituent part of the 'realty and may be removed without material damage to such realty, other than the loss of the chattels, or if such chattels are trade fixtures, plaintiff may be entitled to recover possession thereof in replevin.
    4. In the absence of an express contract concerning trade fixtures, there is an implied contract permitting a tenant to remove them at the proper time and in a proper manner.
    5. In an action of replevin, the sufficiency of an affidavit of defense is governed by the Act of April 19, 1901, P. L. 88, and not by the Practice Act of May 14, 1915, P. L. 483.
    Replevin for goods delivered under bailment lease and used as trade fixtures. Motion' for judgment for want of a sufficient affidavit of defense. C. P. Westmoreland Co., May T., 1926, No. 867.

      S. W. Bierer, for plaintiffs.

      J. Hilary Keenan and William M. Kahanotoitz, for defendants.
    April 18, 1927.
   Whitten, J.,

April 3, 1926, the plaintiffs caused to be issued a writ of replevin against John L. Perrus, trading as Forum Café, tft recover one No. 4 Instantaneous Troop Heater, Type A; one 5-foot Essex bath-tub, P-2500-D; one 20x30 Roll-rim sink, P-6800; two low tank syphonic closets complete, A-180-R, and two lavatories, P-4205-R and P-4605-R, and alleging that the articles above mentioned were of the value of $457.

In their statement of claim, plaintiffs aver that by virtue of a writing thereto attached, dated June 25, 1925, they leased to said Perrus the above articles for a term not exceeding twelve months; that said articles were to be returned to the plaintiffs at the end of the term, or sooner in case of default in the payment of the rentals reserved. At the end of said term, the lessee was required to surrender said goods to the plaintiffs, and at that time the lessee had the option to purchase the said articles — provided the rentals reserved had been paid — for the sum of $1.

The plaintiffs aver that the defendant, Perrus, had made default in the payment of certain rentals when due, whereby the plaintiffs had the right to immediate possession of the said goods.

April 3, 1926, the sheriff made return that he had served the writ upon Perrus, and also upon one Ben Harris, whom he found in possession of the goods.

April 6, 1926, Ben Harris filed a counter-bond in replevin and thereby retained possession of the said goods. The defendant, Perrus, filed no affidavit of defense. As against him, the plaintiffs may enter judgment by filing a prsecipe in the office of the prothonotary for that purpose.

The said Ben Harris filed an affidavit of defense — and later an amendment thereto — averring that:

a. He is the owner of the house wherein the property replevied is located, and that said Perrus was tenant thereof under a lease dated March 4, 1925;

6. That said tenant, having defaulted in the terms of/said lease, he (Harris), on Feb. 10, 1926, obtained judgment against said tenant, whereby he recovered .possession of said leased premises;

c. That he has not now, and never had, any knowledge of the said lease between the plaintiffs and Perrus or of the delivery by the plaintiffs of the said goods to Perrus; and

d. That the said articles of merchandise so, as aforesaid, claimed by the plaintiffs, prior to his (Harris’s) recovery of the possession of said premises, “were and are affixed to the said realty” in such a'manner as to become a part thereof, and are not severable therefrom without material injury to said realty, and that said chattels were so affixed without the knowledge or consent of the said defendant, Ben Harris.

The defendant contends that (a) the plaintiff did not comply with the provisions of the Act of May 14, 1925, P. L. 722; and (b) the said chattels were and are so affixed to the realty as to become a constituent part thereof, and are, therefore, not recoverable in an action of replevin.

1. Is the Act of May 14, 1925, P. L. 722, applicable to the instant case?

The statute is entitled “An act concerning sales of chattels attached or to be attached to realty, and regulating the filing and effect thereof, and providing remedies and penalties.”

In the body of the act its scope is restricted to “a conditional sale contract in writing reserving to the seller the property in chattels attached or to be attached to the realty.”

“A conditional sale is one which depends for its validity upon the fulfillment of some condition. The term is usually confined to sales in which the seller retains the title until the payment of the price:” Bouvier’s Law Dictionary, 2984.

“A bailment is a delivery of goods upon condition, expressed or implied, that they shall be restored by the bailee to the bailor, or according to his directions, as soon as the purpose for which they are bailed shall be answered:” Bou-vier’s Law Dictionary, 313. See, also, Lippincott v. Scott, 198 Pa. 283.

“An express stipulation to return the bailed property is not an essential requisite to a bailment contract:” Willey Motor Co. v. Ervin & Son, 86 Pa. Superior Ct. 505.

“The general rule is that when goods are delivered under a contract of bailment, the owner is entitled to recover them, not only from the bailee, but from purchasers from such bailee:” Krause v. Com., 93 Pa. 418; Leitch v. Motor Truck Co., 279 Pa. 160.

The contract between the plaintiff and the defendant, John L. Perrus, a copy of which is attached to the plaintiff’s statement of claim, is a bailment and not a conditional sale, and, therefore, the Act of May 14, 1925, P. L. 722, is not applicable thereto.

2. In the circumstances, are the chattels in question recoverable in an action of replevin?

In Bullock E. M. Co. v. Traction Co., 231 Pa. 129, the court (opinion, page 138) says: “A writ of replevin is effectual for the delivery of personal property only: Roberts v. Dauphin Deposit Bank, 19 Pa. 71. If the article or thing, the possession of which is sought to be recovered in such an action, has been so changed in character as to be no longer in the category of personal property, but has become a component, permanent and necessary part of the realty, this form of action will not lie. This rule is subject to some modification as between a vendor and vendee who covenant otherwise in a case where the rights of creditors are not involved.”

“The character of the connection with the realty does not determine the matter of annexation. Since the decision in Voorhis v. Freeman, 2 W. & S. 116, the common-law doctrine of physical attachment has not been in force in this State: Hill v. Sewald, 53 Pa. 271; Coleman v. Lewis, 27 Pa. 291. The intention of the parties as derived from the lease and the circumstances surrounding the transaction determine the question:” McKim v. Burke, 57 Pa. Superior Ct. 530, 534.

“It is not the character of the physical connection with the realty which is the criterion of annexation. The intention to annex, whether rightfully or wrongfully, is the legal criterion. When one fixes his own chattels on another’s land, it is in legal effect a gift of them to the owner of the land. Where the owner of land wrongfully fixes the chattels of another, it is a conversion of them into realty, and the remedy of their owner is only in damages. When a tenant attaches to the land fixtures for his business, the law, in favor of trade, presumes that he meant to remove them before the end of his term; it is only on leaving them that the intention to make a gift to the landlord is imputed to him:” Hill v. Sewald, 53 Pa. 271.

“No intention is to be imputed to a tenant to make a gift to the landlord of fixtures which he has attached to the premises for the use of his business. When, therefore, such fixtures are placed on the premises,* the presumption is that at the expiration of the lease the tenant will remove them:” McKim v. Burke, supra. See, also, Donnelly v. Frick & Lindsay Co., 207 Pa. 597.

Neither the lease nor a copy thereof between Ben Harris, landlord, and John L. Perrus, tenant, is attached to the pleadings. Nor was such lease or a copy thereof submitted to the court. At the argument it was stated by counsel that the lease was for the term of five years from April, 1925.

The tenant having made default in the payment of rent in February, 1926, the landlord caused judgment in ejectment to be entered against the tenant, and in March, 1926, issued a writ of hab. fa., whereby the sheriff delivered the possession of the leased premises to the defendant, Harris, the owner of the premises.

In an action of replevin, plaintiff’s declaration shall consist of a concise statement of his demand, setting forth the facts on which his title to the goods and chattels is based. This has reference to the facts relating to his acquisition of the property and the conditions which entitle him to possession: Drumgoole v. Lyle, 30 Pa. Superior Ct. 463.

The defendant in his affidavit of defense must set up the facts denying the plaintiff’s title and showing his own title to said goods and chattels: Act of April 19, 1901, § 5, P. L. 88.

In the instant case, the defendant, Ben Harris, in his affidavit of defense avers no facts showing his own title to the chattels in question, except the averment that said chattels were attached to, and became a constituent part of, certain realty owned by him while said realty was occupied by his tenant; that he had no knowledge of the reception of the said chattels by his tenant, or who affixed the same to such realty, or who was the owner thereof. Nor does it appear that he (Harris) paid for or purchased said chattels at private or judicial sale. He only avers that when he evicted his tenant for non-payment of rent, he found said chattels so affixed to his realty.

Indeed, the defendant’s only defense is that, without his knowledge or consent, the said chattels were so affixed to his realty as to become a part thereof, and that by reason of the character of such attachment thereto, the severance thereof would work material damage and injury to said realty.

The plaintiffs have neither offered to repair the damage or injury which would result from the severance of said chattels from the realty nor tendered the defendant security conditioned for the repair of such damage.

In other words, the defendant (Harris) denies the plaintiff’s right to materially damage his (defendant’s) house by severing and removing therefrom chattels which some one — without his consent and without his knowledge — so affixed thereto as to become a component part of such realty. The defendant’s real contention is that, in the circumstances, he should not be required to pay for the chattels which he did not agree to purchase merely to prevent material damage to his realty by the severance and removal thereof.

“Replevin is a mixed action, in rem and personal. The defendant has his election to deliver the property on the writ or to give security and keep it. If the property be delivered to the plaintiff, the defendant is answerable in damages only for the taking and detention. If it be retained, he is answerable for the full value:” Collins v. Bellefonte C. R. R. Co., 171 Pa. 243, 258.

“In an action of replevin where the defendant has entered a claim-property bond and retained possession of the property, a general verdict for plaintiff and judgment thereon entitles the plaintiff, since the Act of April 19, 1901, P. L. 88, to a writ of retorno habendo, and this is the case although the jury fail to find the value of the property and damages for its detention:” Reber v. Schroeder, 221 Pa. 152.

“Since the Act of April 19, 1901, P. L. 88, the plaintiff may ‘at his option issue a writ in the nature of a writ retorno habendo’ requiring the delivery to him of the property replevied:” Duroth v. Cauffiel, 243 Pa. 24.

“The effect of a judgment for want of a sufficient affidavit of defense in an action of replevin under section 5 of the Act of April 19, 1901, P. L. 88, is to determine the title to the property in dispute. The plaintiff must resort to a writ of inquiry for the assessment of damages:” Westinghouse Co. v. Harris, 237 Pa. 203.

The court is of the opinion that if the defendant's contention should be sustained by proofs, the plaintiffs ought not to recover under the pleadings in this action.

On the other hand, if said chattels are not a constituent part of the realty and may be removed without material damage to such realty — other than the loss of such chattels — or if such chattels are trade fixtures, the plaintiff may be entitled to recover possession thereof.

In the absence of an express contract concerning trade fixtures, there is an implied contract permitting a tenant to remove them at the proper time and in a proper manner: McClintock and I. Co. v. Ætna E. Co., 260 Pa. 191; Robinson v. Harrison, 237 Pa. 613.

“What are fixtures” is always a mixed question of law and fact: Campbell v. O’Neill, 64 Pa. 290. See, also, Wick v. Bredin, 189 Pa. 83.

Trade fixtures are regarded as personal property during the continuance of the term of the tenant: Coyle v. Giebner, 114 Pa. 341.

However, in the instant case, the court cannot determine, by an inspection of the pleadings, whether or not the chattels in question here are or are not trade fixtures.

The affidavit of a plaintiff to fix bail in replevin is not admissible as prima facie proof of the value of the article replevied: Guinn v. Vitte, 63 Pa. Superior Ct. 611.

By filing a counter-bond in the same amount as plaintiff’s bond, the defendant does not thereby assent to the plaintiff’s valuation: Auto Finance Co. v. Reese, 73 Pa. Superior Ct. 550.

In an action of replevin, the sufficiency of an affidavit of defense is governed by the Act of April 19, 1901, P. L. 88, and not by the Practice Act of May 14, 1915, P. L. 483: Willys-Overland, Inc., v. Stry, 76 Pa. Superior Ct. 315. Commonwealth Finance Corp. v. Kramer, 273 Pa. 528.

Where it is apparent that a proper judicial determination of the controversy between the parties would be facilitated by an opportunity for a broader inquiry into the facts than is presented by a plaintiff, summary judgment should not be entered: Moy v. Colonial Finance Corp., 279 Pa. 123; County Savings Bank v. Gillette, 273 Pa. 262; Mancia v. Marquette National Fire Ins. Co., 280 Pa. 174.

“Judgment for want of a sufficient affidavit of defense should not be entered except in clear cases. Doubtful cases should go to trial, especially those involving intricate relations demanding an inquiry into the facts of the controversy:” Helfenstein v. Line Mountain Coal Co., 284 Pa. 78.

Decree.

And now, April 18, 1927, after argument by counsel and upon due consideration, the plaintiff’s motion for judgment for want of a sufficient affidavit of defense is overruled.

From William S. Rial, Greensburg, Pa.