author: Patterson, P. J.,

text:
    Louden et al. v. Juniata Borough.

      W. C. Fletcher, for plaintiffs; J. J. Haberstroh, for defendant.
    July 31, 1928.
   Patterson, P. J.,

On Oct. 6, 1925, the Borough of Juniata condemned certain lands situate in Logan Township for water-shed purposes and named in said proceedings W. Hays Louden, David H. Baird and Carl J. Resig owners of the land. Viewers awarded $6000. Plaintiffs appealed to the Court of Common Pleas. An issue was framed, and after a trial by jury, Jan. 28, 1926, a verdict was rendered in the sum of $10,500 against the defendant borough and in favor of the plaintiffs, W. Hays Louden, David H. Baird and Carl J. Resig. On Jan. 15, 1927, after motion for new trial had been overruled, judgment was entered upon said verdict to No. 23, January Term, 1927, with interest from Jan. 28, 1926. On May 3, 1927, the plaintiffs filed their petition for writ of mandamus execution on the defendant to enforce payment of said judgment, setting forth that said condemnation proceedings were regular and within the requirements of the law, and that no exceptions were filed thereto by any person. Defendant answered said petition and averred that W. Hays Louden, one of the plaintiffs, was the owner in fee of the lands known as the Loudon farm, which have been fully described in the proceedings, at the time of the condemnation and at the date of the passage of the ordinance of the defendant borough, to wit, Oct. 6, 1924. And that on May 12, 1924, the said W. Hays Louden conveyed, by article of agreement, all of the land described in the said condemnation proceeding to David H. Baird and Carl J. Resig, said article of agreement being recorded in the Office for the Recording of Deeds in and for Blair County in Deed Book, vol. ■ 322, page 277. And averring that, notwithstanding the condemnation proceedings and the sale by article of agreement, the said W. Hays Louden conveyed, by general warranty deeds, three several lots from said Louden farm, to wit, one lot to J. H. Dodson, by deed dated July 9, 1924, and recorded on Aug. 30, 1924, in Deed Book, vol. 324, page 470, consideration $150; one lot to T. G. Smith, by deed dated July 1, 1924, recorded on July 31, 1924, in Deed Book, vol. 324, page 290, consideration $100; and one lot to Charles J. Kauffman, by deed dated Oct. 16, 1924, recorded on Oct. 18, 1924, in Deed Book, vol. 326, page 630, consideration $600; and that the defendant believed that the said J. H. Dodson, T. G. Smith and Charles F. Kauffman would demand damages for the appropriation of their respective lots, and said borough declared its intention of instituting interpleader proceedings to compel the said parties to intervene for the purpose of having their rights and amounts of said judgment determined. And as the municipality filed no bond and did not take actual possession of said premises, no interest should be allowed until a later date, when physical possession was taken.

On May 16, 1927, upon petition of defendant borough, a rule was awarded upon W. Hays Loudon, David H. Baird, Carl J. Resig, James H. Dodson, T. G. Smith and Charles F. Kauffman “to show cause why they and each of them should not interplead as to the respective amounts, if any, they and each of them are entitled to receive from the sum of $850.00 paid into court pursuant to the stipulation and agreement by and between W. I. Woodcock, Esq., attorney for W. Hays Louden, David H. Baird and Carl J. Resig, and John J. Haberstroh, Esq., solicitor for the Borough of Juniata, a copy of said stipulation and agreement being attached to the foregoing petition and made a part of the record, and to show cause whether the Borough of Juniata is liable for the payment of interest upon the said judgment in above proceedings, and, if so, from what date.” The said rule was actually served upon all of the parties named Oct. 20, 1927. Upon these facts we have for consideration and decree: First, the mandamus execution proceedings; second, the interpleader proceedings; and, third, whether or not the defendant borough is liable for the payment of interest on said judgment, and, if so, from what date.

Interpleader proceedings.

The first question is whether an interpleader proceeding will lie to compel James H. Dodson, T. G. Smith and Charles F. Kauffman to become parties to this proceeding more than three years after the condemnation proceedings were instituted and more than nine months after final judgment. The contention of the defendant borough is that, notwithstanding these three persons were the owners of lots originally belonging to what is known as the Louden farm, the Dodson and Smith deeds were of record prior to the institution of the condemnation proceeding, to wit, Oct. 6, 1924, and the Kauffman deed of record Oct. 18, 1924, they should be compelled to come into court and claim part of the proceeds of the judgment recovered by plaintiffs. With this contention we cannot agree. Land owners of record, against whom no condemnation proceedings have been instituted, cannot be compelled by interpleader proceedings, or any other proceeding that we know of, to come into court and claim a right to participate in a judgment recovered by other owners of land.

Section 3 of chapter 6, article 17, of the Act of May 14, 1915, P. L. 312, known as the Borough Code, provides: “Any borough desiring to erect waterworks or to improve its water supply may appropriate springs, streams, rivers, creeks and rights-of-way, lands, easements, within or without its limits, etc.”

Section 5 provides: “Prior to any such appropriation, the borough shall attempt to agree with the owner as to the damage done or likely to be done, and if the parties cannot agree or the owner cannot be found or is under legal incapacity, the borough shall file its bond in the Court of Common Pleas conditioned for the payment to the owner of the property of the damages for the taking thereof when the same shall have been ascertained. Upon the approval of the bond and filing thereof, the borough may enter upon such property.”

Section 6 provides: “Upon petition of either the property owner or borough at any time thereafter, the court shall appoint three viewers from the county board of viewers, who shall assess the damages for the property or rights appropriated and shall fix a time for their meeting, of which notice shall be given to all parties interested. When the report is filed, either party may appeal and have a jury trial.”

Messrs. Dodson, Smith and Kauffman are strangers to this litigation and cannot be made parties thereto. The jury, in awarding damages against the defendant borough, were not in any way deceived or misled by the plaintiffs or any other person as to just what the appropriated tract of land included. The parties now sought to be made parties defendant were not served with notice and no attempt was made to bring them into the action at the time of the appropriation or thereafter until many months after final judgment, and, in the testimony of W. Hays Louden before the jury, we find, on page 2, the following evidence: “Q. You are the plaintiff in this suit? A. Yes, one of them. Q. This draft of Mr. Gwin’s correctly describes the farm? A. Yes, sir. AH but three lots that have been sold. Q. To whom did you sell these three lots? A. A man by the name of Dodson and Forrest Smith and Charles Kauffman. Q. When did you sell them? A. Along about July or August, 1924. Q. Do you know whether the deeds were delivered? A. Yes. Q. Were they paid for? A. Yes. There is a cottage on one. It is the first lot you come to on the left, going out. Q. Right near the upper dam? A. Yes. Q. Whose cottage is it? A. Mr. Kauffman’s. Q. Is that Mr. Charles F. Kauffman? A. Yes.” The jury, with this testimony before them, awarded damages to the named plaintiffs, to wit, W. Hays Louden, David H. Baird and Carl J. Resig, for the land, exclusive of said lots, the title to which had already become vested in James H. Dodson, T. G. Smith and Charles F. Kauffman. The defendant borough has no legal standing to compel said parties to participate in the distribution of the judgment, and Messrs. Dodson, Smith and Kauffman would have no right, upon their petition, to intervene as parties entitled to said judgment or any part thereof under the facts in this case. There is no condemnation proceeding against the lots which were expressly excepted and excluded by the testimony already referred to. These three persons have not had their day in court.

In Harris v. Brewster, 154 Pa. 22, in a proceeding very similar to the one under consideration, the Supreme Court said: “It appears that the fund in court is the proceeds of certain land condemned by the Schuylkill Railroad Company in a proceeding against Amanda G. Harris. The appellant alleges that he has recovered a judgment against Henry G. Harris, a son of Amanda G. Harris, and that the said Henry G. Harris is beneficially interested in the money paid into court for the reason that he was the real owner of the land taken by the railroad company. We do not understand how the title of Henry

G. Harris to the real estate in controversy can be settled in this proceeding. It has been condemned as the property of Amanda G. Harris, and if she was not the owner, the railroad company get no title. The latter cannot condemn the property of Henry G. Harris upon a proceeding against his mother. If the title was in him at the time of the condemnation, it is in him still, for anything that appears, and the appellant cannot proceed against it upon his judgment. As the case appears to us, he has no standing to intervene in this proceeding and the order of the court below discharging his rule to show cause is aifirmed.”

True it is that the attorney for defendant borough and one of counsel for original plaintiffs undertook by agreement noted upon the record to stipulate and set aside a certain part of said judgment, to wit, $850, representing the original consideration paid for said lots, to be paid to said lot owners. This agreement was ineffective as to Messrs. Dodson, Smith and Kauffman, as they were in no wise, directly or indirectly, parties to the same. This amount was arbitrarily set aside for them without their consent and repudiated by Messrs. Louden, Baird and Resig. Messrs. Dodson, Smith and Kauffman have made no demand upon the borough for damages by reason of said condemnation proceedings, and neither have they made demand, upon the plaintiffs in said proceedings for any part of the judgment recovered. The borough’s petition avers that there is a dispute between the parties entitled to the fund which it holds and no such proceeding will lie unless the petitioner is a mere stakeholder without any interest in the fund and without any controversy of his own to settle: Dohnert’s Appeal, 64 Pa. 311; Bridesburg Manuf. Co.’s Appeal, 106 Pa. 275; De Zouche v. Garrison, 140 Pa. 430.

Mandamus execution.

Either mandamus or fi. fa. execution is a proper remedy for the enforcement of payment of the judgment, and the plaintiffs, W. Hays Louden, David H. Baird and Carl J. Resig, are entitled, under the law, to proceed with the writ of mandamus for the collection of the amount of the judgment, with interest.

Date of interest, if any.

The Act of Assembly of April 6, 1859, P. L. 381, provides as follows: “It shall be lawful for any party or parties in whose favor any verdict may be rendered for a specific sum of money to collect and receive interest upon such sum from the date of the verdict, and every general judgment entered upon such verdict, whether by a court of original jurisdiction or by the Supreme Court, shall be deemed and held to be a judgment for the sum found by the verdict, with interest thereon from the date of such finding.”

The market value of plaintiff's property was the only question before the court and jury. The jury found the market value of the plaintiff’s property to be $10,500. Thereafter, the plaintiff’s claim ceased to be in unliquidated damages, but became a debt due the plaintiff, drawing interest at the legal rate from the date of the verdict, to wit, Jan. 28, 1926: Whitcomb v. Philadelphia, 264 Pa. 277; Wayne v. Pennsylvania R. R. Co., 231 Pa. 512; Hoffman v. Philadelphia, 261 Pa. 473.

Decree.

Now, July 31, 1928, rule for interpleader discharged and rule for mandamus execution for the collection of the verdict of $10,500, with interest thereon from Jan. 28, 1926, to date of payment at the rate of 6 per cent, per annum, with Costs, is made absolute. From Robert W. Smith, Hollidaysburg, Pa.


source: Caselaw Access Project

author: Culver, P. J.,

license: Public Domain

text:
    Wyalusing Township School District v. Babcock et al.

      John C. Ingham, for plaintiff; W. M. Bosenfield, for defendants.
    April 2, 1928.
   Culver, P. J.,

This equitable proceeding is to restrain the defendants from entering upon a certain school property known as the “Lyon School,” in the School District of Wyalusing Township, and from doing any damage thereto, or removing any materials taken out of or from said buildings, and from in any manner interfering with plaintiff's occupancy and use of the said buildings, and from such further relief in the premises as the court shall find to be proper and necessary to preserve the rights of the plaintiff.

An answer was filed by defendants after the plaintiff and defendants agreed upon the facts in order that there might be no dispute as to any material fact for the determination of the case. These facts, briefly stated, are as follows:

“1. That the School District of the Township of Wyalusing, the plaintiff, is a legally-constituted school district of the Commonwealth of Pennsylvania created and existing under the laws of said State, and situate in the Township of Wyalusing, County of Bradford, and State of Pennsylvania.

“2. That the said school district, the plaintiff herein, succeeded to the title and all the rights in and to the property of a former school district created by the said State under the same name and at the same place as a part of the common school system of the said State, and which said former school district had been in existence for upwards of seventy-five years.

“8. That upwards of seventy-five years ago the said former school district acquired land in what was known as the Lyon Sub-District in said township and built thereon a school-house and outbuildings and used the same for the school purposes of the said school district, and so used the same continuously, exclusively and adversely until the creation as aforesaid of the plaintiff school district.

“4. That the plaintiff herein, from the time of its creation as aforesaid, has used said land for the purposes of the said school district, at first by continuing and maintaining a regular school at said place and later by transporting the school children of said sub-school district to other schools and using this land as a waiting-station for such school children to take the transporting vehicle.”

That the said school was not used for school purposes during the school year 1923-1924 and has not been used as such since then, except that the coal-house has been fitted up as a waiting-room for students being transported by said School District of Wyalusing Township. That on May 16, 1924, the plaintiff school district legally adopted the following resolution: “Moved by Brown, seconded by Tyler, that the Lyons and Browntown Schools be permanently closed.”

“5. That the plaintiff and its predecessor have been in the continuous, exclusive and adverse possession of the said land for upwards of seventy-five years last past.

“But for school purposes only.

“6. That the above-named defendant, Clinton Johnson, without any authority from the plaintiff, has gone upon the said premises and commenced tearing down the school-house on the said land, has tom up the floor and done other damages to the said building and threatens to tear down the whole building and take away the material.”

And it is further admitted by the parties that part of the floor of said school-house and the two outside toilets have been taken away by other persons by permission of the plaintiff.

“7. That the said Clinton Johnson claims to have purchased the said building from the said A. M. Babcock. The said A. M. Babcock claims to have sold the said building to the said Clinton Johnson, and encourages him in said demolition and has agreed to indemnify him against action for damage for so doing.

“8. That the said school lot is included within the line describing the farm of Mary and A. M. Babcock, as referred to and within the lines of the deeds of their predecessors in title from 1847 to the present date.

“9. That the school-house in question was a one-room school-house, and since the closing thereof, the pupils have been transported to a two-room school-house in Tuscarora Township.”

With these facts agreed upon, we are called upon to determine whether or not the plaintiff is entitled to the relief sought. We will first set forth the legal position contended for by defendants as justification for their acts and conduct. Defendants contend that all rights of the plaintiff in the school property in question have terminated and ended, and that because the school lot is surrounded by the farm of the defendants, Mary Babcock and A. M. Babcock, and has been so surrounded, as shown by the record titles agreed upon, since 1847, the lot and the buildings in question have reverted to the present owners of the property, Mary Babcock and A. M. Babcock, two of the defendants above named, and argue, in support of this contention, that the school district, by the resolution mentioned, has permanently closed the school and transported the pupils to a school in the School District of Tuscarora Township. Defendants further contend that these facts amount to a consolidation of the Lyon School in Wyalusing Township School District with the school in Tuscarora School District within the meaning of section 3701 of the School Code, which reads as follows: “That whenever graded schools can be made to accommodate the pupils of one or more ungraded' schools, by consolidating said ungraded school or schools with another school, either graded or ungraded, it shall be the duty of the board of school directors to abandon the one-room school or schools, and, instead of repairing or rebuilding the one-room school-house or school-houses, they shall erect a suitable modern building for the purpose of consolidating and properly grading all of the said schools;” and, therefore, amount to abandonment of the school premises in question.

The second contention made by defendants is as follows: They claim that a school district could hold land, either by possessing the title or by condemning the same, the same as could a railroad company. In other words, that a school district can obtain title by agreement or by the right of eminent domain or by adverse possession. With this contention there is no dispute, but they further contend: “There is a presumption that any such corporation that takes land for its corporate possession does so under its high right of eminent domain and not as a wilful trespasser whose trespass may grow into a title.” Citing Covert v. Pittsburgh Ry. Co., 204 Pa. 341, and other cases in support thereof.

Basing their argument upon this contention, they further claim that, previous to the School Code of 1911, when land was condemned for school purposes, the title acquired was not an estate in fee simple, but simply a right to use and occupy the land for school purposes, and when this use and occupancy ceased, the title automatically reverted to the original owner or those holding under him, upon the assumption that when land was so taken by the right of eminent domain for school purposes, the damages assessed by viewers and paid by a school district were based, not on the valuation of the absolute fee in the land but on the right to use and occupy it for school purposes, alleging that the rights acquired by a school district in such condemnation proceedings were in the nature of an easement or a license, which terminated whenever it ceased to be used for such purposes, and, therefore, it must be presumed plaintiff’s title was acquired by right of eminent domain and terminated when the property ceased to be used for school purposes. We believe, under the law, these contentions of defendants cannot be sustained. As to the first, we are not convinced the plaintiff school district has ever, by its action, “abandoned” the school property. Nor has there been a “consolidation” of the Lyon School with any other school.

Section 3702 of the School Code declares the definition of a “consolidated school” to be “a school formed by uniting two or more elementary schools or two or more public elementary schools with the grades of other public schools which, prior to such union, were maintained in separate buildings, and, after such union, are maintained in one school organization taught by two or more teachers.”

And, again, the same section further defines a “joint consolidated school” as “a consolidated school organized, maintained and controlled by the joint action of two or more school districts.”

The facts agreed upon do not show that the Lyon School has ever become part of a consolidated school or a joint consolidated school. The facts agreed upon do show that the scholars from the Lyon School are being transported to a two-room school in the Tuscarora Township School District, but there is no agreement that the Wyalusing School District has anything to do with, or any control over, the Tuscarora School District schools, and, as a matter of fact, it is not, because it was conceded at the argument by counsel for ■ defendants that the scholars being transported from the Lyon School to the Tuscarora School District are being there schooled by some arrangement between tbe two school districts, and the Wyalusing School District is paying their tuition to the Tuscarora School District. We think it cannot, therefore, be held that this school has been consolidated with any other school, and certainly there is no joint consolidated school, so as to make it the duty of the Wyalusing School District to abandon the school property in question, as provided in the above-mentioned section 3701 of the School Code. Moreover, if defendants’ contention in this regard is valid, we think a serious question would arise as to the constitutionality of that part of the School Code which requires school districts, under certain conditions, to consolidate and, under other conditions, over which the school board has no control, to close certain schools, as, for instance, under section 1406 of the School Code: “Whenever the average attendance of pupils regularly enrolled at any one-room school in any school district of the fourth class is ten or less than ten, the Board of Directors shall close such school.”

If, under certain conditions, over which the school district has no control, it is obliged to close certain one-room schools and consolidate them with other districts, and if such action automatically amounts to an abandonment of their school property, is it not taking their school property from them without compensation? It is not necessary to decide this question in this case, but it is well worth careful consideration should the case arise where the question must be decided.

We are not satisfied that the resolution of the Wyalusing Township School District hereinbefore mentioned, as follows: “Moved by Brown, seconded by Tyler, that the Lyons and Browntown Schools be permanently closed,” is an abandonment of this school property. We are satisfied that, notwithstanding this resolution, this school board or any subsequent school board of this district might by proper action reopen or re-establish the school. In other words, the said resolution of the school board is of a legislative or governmental character and is not binding on subsequent boards if, in the judgment of a subsequent board, conditions had so changed as to make it advisable to reopen the school, such board might revoke the above resolution. “One school board cannot bind or exercise power and discretion over subsequent boards:” Unity Township School District v. Hempfield Township District, 7 Westmoreland L. J. 138; McCormick v. Hanover Township, 246 Pa. 16&; Moore v. Luzerne County, 262 Pa. 216.

The School Code recognizes a clear distinction between closing a school and abandoning school property, as section 603 thereof provides: “No property that has heretofore been acquired by, conveyed or granted to, any school district in this Commonwealth for school purposes, or which may hereafter be acquired by any school district for school purposes, shall be considered as abandoned until the board of school directors of such districts shall pass, by a vote of the majority of the members of the board, a resolution declaring it to be the intention of such district to vacate and abandon the same, whereupon all right, title and interest of such district in such premises shall be fully terminated.”

We are, therefore, of opinion that the facts agreed upon do not show an abandonment of this school property by the plaintiff, and this is our conclusion, irrespective of the further agreed fact that the plaintiff, since closing the Lyon School, has used, and is still using, the school lot and one of the buildings thereon as a waiting-station for the purpils who are being transported to the school in Tuscarora Township School District, and when we consider this fact, we feel confident that defendants’ contention that this school property has been abandoned cannot be sustained. The other contention of the defendants that it must be presumed plaintiff’s title to the property in question was acquired by eminent domain and not by express grant or adverse possession and user certainly cannot be maintained if we are correct in our understanding of the law that the first act of assembly in Pennsylvania authorizing the acquisition of property for school purposes by eminent domain was enacted April 9, 1867, P. L. 51, and this is the first legislation in this State we find giving any right of the power of eminent domain to a school district. If the school district possessed no power more than seventy-five years ago, when it acquired this property and took possession, to acquire it by right of eminent domain, there surely can be no presumption that it did so acquire it. It, therefore, seems to us an established fact that the land in question was not acquired under condemnation proceedings. If this be correct, then it must have been acquired either by a grant or by the adverse possession, which it is admitted plaintiff had of this particular lot.

“A school district is a quasi-corporation or municipality,” is held in Com. v. Wilkins, 75 Pa. Superior Ct. 305; Lyon v. Strock, 274 Pa. 541; Dover School District v. Lauer, 22 Dist. R. 102.

It is laid down in 2 Corpus Juris, 228, “A municipal corporation may acquire title to land by adverse possession for corporate purposes, and even for other than corporate purposes.”

That a school district, as a municipal corporation, may acquire title to land by adverse possession is held in Dover School District v. Lauer, 22 Dist. R. 102, and also in Lee v. County School Board, 132 S. E. Repr. (W. Va.) 863.

The acquisition of title by the plaintiff school district to the lot in question, whatever the method, was so long ago that it is now impossible to ascertain its method. The only fact we can definitely determine is that it did not asquire the land by right of eminent domain, and the fact that it acquired this land long before the legislature vested in school districts the power of eminent domain, and without evidence to explain how its long, continuous, open and notorious possession was acquired, [shows that] it must be presumed to be in pursuance of a full and unqualified grant: Garrett v. Jackson, 20 Pa. 331; Carter v. Ridge Turnpike Co., 22 Pa. Superior Ct. 162.

A brief history of the law governing these questions is found in Dover School District v. Lauer, 22 Dist. R. 102, which is a case very similar to the one at bar. In that case, Judge Ross (page 103) said:

“Under those facts, it will be observed that the land in question has been used for the same purposes continuously since 1834, and that use has been an ‘open and notorious one to the entire exclusion of all other purposes.’

“As early as the Act of Assembly of June 13, 1836, § 14, P. L. 525, a board of school directors could, at its discretion, acquire and hold or dispose of real estate for school purposes: McCullough v. School Directors, 11 Pa. 476; and the Act of May 8, 1854, § 18, P. L. 617, expressly gave school districts the right to purchase and sell real estate for their purposes.

“It has been ruled by the Supreme Court in Com. v. Morrisey, 86 Pa. 416; Philadelphia v. Fox, 64 Pa. 169; Darby v. Sharon Hill, 112 Pa. 66, and Com. v. Moir, 199 Pa. 534, that a school district is ‘a municipality of specific statutory creation.’ It is a well established principle of law that a municipal corporation and even a private corporation may acquire title to land by adverse possession: 2 Abbott on Municipal Corporations, § 739.

“It is true that there is no evidence to show that the plaintiff ever paid for the land or entered security therefor, or to show by what proceedings or under what circumstances it entered- into possession of the land, but it is plain that it did not take said land by condemnation proceedings, for the act of assembly giving school districts this right was not passed until the year 1867, long after its possession and use of the land for its purposes, and the very use of the land continuously, openly and notoriously, without evidence to explain how it began, is presumed to be in pursuance of a full and unqualified grant: Garrett v. Jackson, 20 Pa. 331; Carter v. Ridge Turnpike Co., 22 Pa. Superior Ct. 162; so that the possession adversely of the land in question by the plaintiff for so long a period being established by the facts, the law presumes that the entry was of right, and that the evidence of title has been lost. It has been held that such title is marketable: Pratt v. Eby, 67 Pa. 396.

“Mr. Justice Lewis, in Heckerman v. Hummel, 19 Pa. 64, treats of this law as follows: ‘After the lapse of three score years and ten, the memory fails, witnesses die and documents are lost or mislaid. It is, therefore, difficult and frequently impossible to establish by positive evidence the facts of an ancient transaction. The law, in furtherance of justice, and for the protection of society, has, in such cases, substituted for positive evidence the doctrine of presumptions. A possession of twenty-one years is not only a sufficient defense to an ejectment, but is a title on which a plaintiff may support such an action against another.’

“Thus, as ‘the scythe of time destroys the evidence of title, the hour-glass measures out the period when those evidences are no longer necessary.’ ”

Defendants raise the further contention that as one of the facts agreed upon in this case is “that the plaintiff and its predecessors have been in the continuous, exclusive and adverse possession of the said lands for upwards of seventy-five years last past for school purposes only,” [that fact] necessarily shows that plaintiff has not acquired fee simple title to the land. We think this contention is not well founded. There is a difference in the quality of the estate acquired by a grant for so long a period, or such time only as the property shall be used for a specific purpose, and an absolute grant limiting the purposes for which the property may be used.

“Qualification for school purposes only.”

The facts agreed upon show that it was held for a lawful purpose; that is, a purpose for which the school district had authority to acquire and hold land, but, in our opinion, that does not change the character of the title acquired by the school district.

“Where the owner of 176 acres of land conveys, by deed to the directors of a school district and their successors, one-half acre of the same ‘for school purposes only,’ without any condition, restraint upon alienation, or clause of forfeiture, the school district takes an estate in fee simple in the one-half acre, including the oil and gas therein, under power granted by the Act of May 8, 1854, P. L. 617, the quoted words being surplusage:” Philips Gas and Oil Co. v. Lingenfelter, 262 Pa. 500; Sapper v. Mathers, 286 Pa. 364.

In Carter v. Ridge Turnpike Co., 22 Pa. Superior Ct. 162, Judge Rice, on page 168, quotes with approval from Hudson v. Watson, 11 Pa. Superior Ct. 266, the following: “When one uses an easement whenever he sees fit and without direct leave and without objection, it is adverse; uninterrupted adverse enjoyment for twenty-one years is a title which cannot afterwards be successfully disputed. Such enjoyment without evidence to explain how it began is presumed to have been in pursuance of a full and unqualified grant. The owner of the land has the burden of proof that the use of the easement was under some license, indulgence or special contract inconsistent with a claim of right by the other party.”

We are, therefore, convinced that the plaintiff in this case must be presumed to have acquired title in fee simple to the lands in question in pursuance to a full and unqualified grant.

“So that the possession adversely of the land in question by the plaintiff for so long a period being established by the facts, the law presumes that the entry was right, and that the evidence of title has been lost:” Pratt v. Eby, 67 Pa. 396.

That a fee simple title in the lands in question for school purposes could be acquired seventy-five years or more ago is provided by the original Common School Act of this State, passed April 1, 1834, P. L. 170; section 237 provides: .“The supervisors of every township, and the town council of every borough forming a school district, shall have power to purchase, hold and receive real and personal property of all descriptions that may be necessary for the establishment and support of schools, and the same to sell, alien and dispose of whenever it shall be no longer required for the uses aforesaid.”

This act was followed by the Act of June 13, 1836, P. L. 525, enlarging powers of school districts; and the Act of April 7, 1849, § 16, P. L. 441, provides that boards of directors “shall cause suitable lots of ground to be purchased or rented and suitable buildings to be erected, purchased or rented for school-houses, and shall supply the same, etc.,” and the Act of May 8, 1854, P. L. 620, in force at the adoption of the School Code of 1911, provides, in section 18, that the school directors shall have capacity as bodies corporate “to purchase and hold such real and personal property as may be necessary for the establishment and support of the schools, and the same to sell, alien and dispose of when it shall no longer be necessary for the purposes aforesaid, and, also, whenever the board of directors or controllers, in cases where school property has been conveyed to them, shall deem it expedient to make sale of the said real estate for the purpose of reinvesting the proceeds therof for school purposes, etc.,” and the School Code of 1911 gives school districts very full and complete power for purchasing and acquiring in other ways real estate for school purposes and for selling and disposing of the same, and section 607 provides: “The title to all real estate acquired by any school district in this Commonwealth by condemnation proceedings, as hereinafter provided for, shall be vested in such school district in fee simple.”

We are of opinion that, even though the legislature granted power to school districts to take land by eminent domain in 1867, and before the plaintiff in this case had been in adverse possession for twenty-one years, it would not in any wise affect plaintiff’s right by such continued possession to acquire a fee simple title.

“Where a railroad company having a right of eminent domain takes land, not in the exercise of such right, but as a purchaser for railroad purposes, from one holding adverse possession, its title to the land will become good when the combined adverse possession of its vendor and itself comes to exceed twenty-one years:” Covert v. Pittsburgh & Western R. R. Co., 204 Pa. 341.

Plaintiff’s counsel in his brief has well stated this conclusion as follows: “The logical sequence of this principle is that it depends upon the character of the commencement of the title. In the above case, the individual who sold to the railroad had certain rights under his possession, that is, inchoate rights that would come to actuality after twenty-one years. The railroad by its purchase acquired those rights, and such rights thus acquired were not affected by the circumstance that the railroad had the right of eminent domain. Applying the same principle to the present case, whether the origin of the plaintiff’s title was by grant or by adverse possession, such origin was long prior to the Act of 1867, and that act could in no manner derogate from the title or take away any of the rights, whether matured or inchoate, that it then had. If only inchoate, they would continue to progress to maturity just the same as in the case of the railroad above cited.”

Plaintiff’s counsel further contends that, even though plaintiff had but a conditional fee which would fail on ceasing to use the land for school purposes, the title to the building would be personalty and still belong to the school district: Young v. Oviatt, 35 Pa. Superior Ct. 603.

As we view this case, it is not necessary to pass upon this question.

We are of opinion that the plaintiff by its long adverse user and possession must be presumed to have acquired by a full grant a fee simple estate in the lot in question, and that, independent of the fact that it still is using the said lot as a waiting-station for scholars in transportation, it still possesses in the fullest extent the title thus acquired; that it has taken no action which can be interpreted an abandonment of its property and that it is entitled to the relief sought in this bill.

Decree.

And now, April 2, 1928, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows:

1. That the defendants, Mary Babcock, A. M. Babcock and Clinton Johnson, and each one of them jointly and severally, are hereby restrained from in any way interfering with the plaintiff’s occupancy and use of the lot of land and school buildings thereon described in plaintiff’s bill.

2. That the defendants, Mary Babcock,. A. M. Babcock and Clinton Johnson, shall pay the costs in this equitable proceeding.

Upon filing this decree, the prothonotary is directed to notify counsel for defendants in accordance with Equity Rule No. 77, and if no exceptions be filed within ten days therefrom, this decree shall become final.

From Rodney A. Mercur, Towanda, Pa.


author: Schaeffer, P. J.

text:
    Commonwealth v. Forker.

      David F. Mauger, District Attorney, for Commonwealth.

      George Eves, for defendant and exceptions.
   Schaeffer, P. J.

The defendant, Horace M. Porker, Jr., was jointly indicted with Jack Stanley and John Martin for unlawfully attempting to break and enter the gas station of the Pennsylvania Independent Oil Company in the Borough of Boyertown, this county. Stanley and Martin have not been apprehended. Porker was called for trial and, after the Commonwealth had rested, demurred to the testimony. We thereupon gave judgment for the Commonwealth upon the demurrer and adjudged the defendant guilty. This action is now before us for review.

It appears from the testimony that about 1 A. M., on July 15, 1927, three citizens of Boyertown noticed two automobiles stop in said borough and three men emerge and walk away. The witnesses, suspecting these men of intending to steal some other automobile, watched them and saw this defendant, Forker, come across the private graveled driveway of the gas company to one of the automobiles parked nearby. In reply to the witness’s inquiry, Forker said he had engine trouble and denied knowledge of the other two men. Police officers were then called, and two pinch bars, which the Commonwealth contends were burglar tools, were found under the mat on the floor before the front seat of defendant’s car. Forker was taken into custody and made a statement, under oath, to the officers, setting forth that he had left Philadelphia that night in company with the other two- defendants to go to Boyertown for the purpose of robbing a gas station, which turned out to be a station of the Pennsylvania Independent Oil Company; that the defendant used his Dodge car and the other two a Packard car; that they stopped near the gas station, but were disturbed before being able to execute their plan, and that the other two escaped.

There is evidence that Forker was upon the land of the oil company before he was accosted by the witnesses; but there is no evidence that he or either of the other defendants had actually touched or came into physical contact with the building of the oil company that they intended to enter, or that any door, window, lock or other part of said building had been opened or broken or tampered with in any way whatsoever, or anything disturbed in any manner whatsoever.

The unlawful intent to enter and to steal is admitted. But a mere intent is insufficient, under our law, to constitute an offense. There must be an act in furtherance of the intent before a person becomes amenable to the criminal law. There must be at least an attempt to do the unlawful act. An attempt is defined in Com. v. Eagan, 190 Pa. 10, 21, as “an overt act done in pursuance of an intent to do a specific thing, tending to the end but falling short of complete accomplishment of it.” And it is there also said: “In law, the definition must have this further qualification, that the overt act must be sufficiently proximate to the intended crime to form one of the natural series of acts which the intent requires for its full execution. So long as the acts are confined to preparation only and can be abandoned before any transgression of the law or of others’ rights, they are within the sphere of intent and do not amount to attempts. Thus the acts of the prisoner in going to Pepper’s place and watching his house, and even of preparing the rope to tie him, while undoubtedly done in pursuance of the intent, did not go beyond mere preparation, and had the intent been abandoned at this point, an indictment for an attempt to commit robbery or burglary could not have been sustained.” See, also, Com. v. Puretta, 74 Pa. Superior Ct. 463; Com. v. Stefanczyk, 77 Pa. Superior Ct. 27. In the case before us, the intent had not been translated into any unlawful act; the defendant’s acts had not gone beyond preparation, if indeed preparation was complete. In the absence of any evidence that the defendant or his accomplices had in fact done something which actually amounted to an attempt to gain entrance to the building which it is alleged and admitted they intended to rob, no indictable offense had been committed.

And now, to wit, Dec. 5, 1927, the defendant’s exceptions are sustained and judgment upon the demurrer is directed to be entered against the Commonwealth and in favor of this defendant.

From Charles K, Derr. Reading, Pa.


author: Smith, J.,

text:
    The Curran Foundation Charter.

      G. W. Pepper, for petitioner; O. J. Roberts, contra.
    Dec. 10, 1928.
   Smith, J.,

On March 6, 1928, a petition was presented to this court for a certificate of incorporation for a corporation of the first class, to be known as The Curran Foundation. A copy of the proposed charter was duly filed in the office of the Prothonotary of the” Courts of Common Pleas of this county and proper advertising was done by the petitioners as provided by law. On March 13,1928, Ira Jewell Williams, Esquire, was appointed master to consider and report upon the application for a charter for the proposed corporation. On April 13th, a remonstrance was filed to the granting of the certificate of incorporation. The argument on the remonstrance developed a number of facts, (a) The purpose of the proposed corporation as stated in the application:

“2. The purpose of this corporation shall be the promotion of the cause of the higher Christian education of women, in conformity with the principles declared in the will of William Curran, deceased, probated before the Register of Wills at Philadelphia and recorded in Will Book 120, page 399.”

This purpose was somewhat amplified by articles vil and VIII of the tentatively-proposed by-laws of the corporation, which by-laws have been approved by all of the incorporators. Said articles read as follows:

“Article vii — Application of Funds.

“The available funds of the corporation, after the deduction of operating expenses, may be applied as follows:

“(1) To the creation of Curran Scholarships for (or to the payment of tuition fees of) selected students in such institution or institutions of learning in Philadelphia and vicinity or other place, permitted by the will as the Board of Trustees may from time to time approve, the selection of students to be made by the Board of Trustees and the test of the approval of the institution to be a reasonable conformity to the principles announced in William Curran’s Will.

“ (2) To the payment of all or part of the salary in any such institution or institutions of one or more professors giving instruction in Greek or Latin or Hebrew, each professor whose salary is thus paid or supplemented to be styled a Wiltberger Professorship of the language or languages in question.

“Article viii — Selection of Students.

“1. In selecting students under the Curran Will the Board of Trustees shall, among applicants, adopt the following order of preference:

“(1) Daughters of Foreign Missionaries.

“(2) Daughters of Ministers of the Gospel at home.

“(3) Daughters of Members of the learned professions.

“(4) Young women, irrespective of parentage, who give evidence of the qualifications contemplated by the testator.

“11. Students or beneficiaries seeking aid from funds other than those received from the Curran Will shall be selected in such manner as the Board of Trustees shall from time to time determine.”

There were many objections filed to the proposed charter. The principal objection is, “that the will of William Curran contemplated a college, and, hence, the application for a ‘Foundation’ is not in accord with the will.” Another objection to the proposed charter is that the “purpose” paragraph is inadequate under the law. What does the paragraph mean when it states that the purpose shall be the promotion of the cause of higher Christian education of women in conformity with the principles declared in the will of William Curran, deceased? To ascertain what the principles as declared are recourse must be had to the will. A reading of this complex instrument, consisting of a will and four codicils, indicates that the testator had a definite purpose, to wit, leaving a monument to himself in giving a Christian education to women, but his intent as to the means to be used in carrying out that purpose is not as certain.

In re Curran’s Appeal, 4 Pennypacker 331 (1884), the court held that the trust was valid.

The first question to be decided is, which did the testator intend to leave as a monument to himself, (1) a particular college or (2) a method of preparing young women for a higher Christian training? Paragraph four of the will states:

“4. Whereas I have for many years been impressed with the importance and need of good and efficient female teachers for common schools and higher seminaries of learning in our country, and specially of such as have been educated in the Sacred Scriptures, and as I am particularly desirous to aid and assist such females as may, from inclination and mental capacity, be prepared as proper and competent teachers of such schools and higher seminaries of learning.”

In paragraph five of this will he states:

“The General Assembly shall have power to fix the location of said school, and to change the same; the said Assembly shall choose a Board of Directors for said school; and such board, and successors, shall be selected from different branches of the Christian church, and not less than one-half of said board shall be laymen. This board shall make its own by-laws, as also rules and regulations, for the government of said seminary; it shall elect, upon their ascertained merits, the teachers, all of whom shall be females, and fix their compensations, pay the same quarterly, by warrants drawn at a stated meeting on said trustee. The board shall hold stated meetings for transacting the business of said school, shall keep minutes of their proceedings and shall render to said General Assembly an annual report of the condition, the number of pupils and the number of teachers, and the expenditures of said seminary.”

In codicil one of the will the testator revoked that portion of his will wherein he named a normal school as his beneficiary and instead stated:

“And I hereby declare it to be my will to create my estate a foundation, the annual income of which shall be used to promote the higher education of females, in an institution adapted to that purpose, which shall be located in the City of Philadelphia or adjacent to it.

“Should this projected female college not go into operation until after my decease, I nominate and appoint Rev. Tryon Edwards, D. D., Rev. George W. Musgrave, D. D., Charles P. Turner, M. D., Alexander Whildon and Thomas Potter, Esqs., now of the Board of Directors of said ‘Philadelphia Female College,’ to execute my will so far as relates to the expenditure of the income which I have devoted to the education of young women. These five directors shall fill vacancies in their number, but only from the Board of Directors of said College, to promote harmony of action. They shall keep minutes of their proceedings, and report annually to my said trustee of the use which they make of the fund appropriated for female education. . . .

“It is my will that these five directors shall elect a competent female, who shall be professor of the Latin, Greek and Hebrew languages and literature. I would use the bible as a sun around which the education of the beneficiaries of this foundation shall revolve. I esteem female piety as a necessity to the highest progress of society. It is my desire that these graduates should be qualified as teachers, and that everyone of them should be able to read the sacred scriptures in the original languages. In matters non-essential to my great purpose, I permit a wide and sound discretion. I would combine the highest culture which our beautiful city can afford with consecration to the cause of Christ, so that the beneficiaries of this foundation may be ‘as comer stones, polished after the similitude of a palace,’ ‘sanctified and meet for the Master’s use.’ It is my will that the entire income of the foundation, as appropriated by my trustee, shall be expended exclusively upon females, either as professors in the institution or beneficiaries on the foundation.”

In codicil two of the will the testator stated:

“I declare it to be my will that the Professorship of the Latin, Greek and Hebrew languages in the college for the education of females, to the endowment of which I have willed a support, shall be named the Wiltberger Professorship, in honor of my dear wife, whose maiden name was Elizabeth W. Wiltberger; and I recommend that a gradual increase of salary be made for long and faithful service.

“It is my will that, should this projected Female College not go into successful operation before my decease, or within five years thereafter, that my trustee shall invest the income of my estate discreetly, and accumulate a capital yielding an annual income of thirty thousand dollars before any appropriation be made for the college.”

In codicil three of the will the testator canceled that part of his will providing for the appointment of five directors of the Philadelphia Female College and instead provided that the duty to supervise the expenditure of the income of the foundation devolve upon the board of directors of the new organization which must be created. He stated:

“As in the early years of my religious life I deeply pondered the question of my duty to go as a missionary, I desire that what I do for this college shall remain as a monument of my ardent love for the cause of missions. I desire that the influence of this college should be to train up females who shall provide for themselves and bless the church of Christ. . . .”

The testator further stated:

“When and as soon as the aforesaid annual income of thirty thousand dollars is completed, I desire my trustee to accumulate a further sum of five thousand ($5000) dollars, the annual interest of which shall be paid to Dr. William C. Cattell, President of Lafayette College, at Easton, Pa., or his successors in office, the income of which sum shall be paid to competent and distinguished lecturers, to deliver not less than six lectures annually before the students of said college, on the principles of the Reformation, &c., &e. I hope these lectures may be esteemed worthy of publication. When the annual income of my estate reaches the sum of thirty thousand dollars, my trustee shall select twelve persons from the eldership of the Presbyterian churches in the Synod of Philadelphia in connection with the General Assembly, who shall apply for such legislation as will give the college legal existence.”

Prom a reading of the will and codicils of William Curran, it may be logically deduced that it was not an educational structure that he planned to erect, but a method of establishing a type or form of education according to standards expressed by him.

His statement of having the legislature grant a charter to a foundation does not raise any obstacle. The will was written prior to 1874, and he evidently had no knowledge that a corporate charter of the first class was granted by the courts.

To meet the intent of the testator, the formation of a foundation more nearly fills the need. This foundation would be in a position, subject to the approval of the Orphans’ Court of this county, of selecting institutions in or about the City of Philadelphia, or chairs in institutions teaching the subjects nominated by the testator. It could also better select young women entitled to such benefits. This foundation named in honor of the testator would be the monument that he desired to establish. The contribution of moneys to one or more institutions appearing here as objectors would not serve that definite purpose. The purpose is clear and specific all through the will and codicils. The foundation is a logical method of carrying into effect that purpose by creating professorships and scholarships and fixing the character of instruction.

The Synod of Pennsylvania was requested by the testator in the third codicil “to have an oversight of the progress of this endowment.” This does not give them the right to choose the members of the foundation. The reading of the will shows that the privilege given the Synod of Pennsylvania is in direct contrast to the expressed powers conferred upon the directors as contemplated by the testator to carry out his plan.

The twelve elders selected by the trustee have applied for this charter. The charter is complete in form. There was no need of making the will of William Curran a part of the proposed charter. Proper reference was made to its place of record: Vaux’s Appeal, 109 Pa. 491 (1885); In re Garrett Williamson Lodge, 239 Pa. 474 (1913).

•The general intent of the testator is clear. It is the right of the Orphans’ Court to interpret the true meaning of the will and codicils in deciding how the income shall be administered. The awards by the Foundation will also be first approved by the Orphans’ Court.

The Foundation is best able to select the true objects of the testator’s beneficence.

The disposition of the requests for findings of fact and conclusions of law as submitted by Ira Jewell Williams, the master, is as follows:

Findings of fact.

1. That at least three of the incorporators are citizens and residents of this Commonwealth. Affirmed.

2. That the name of the intended corporation is “The Curran Foundation.” Affirmed.

3. That the location of the intended corporation and place of business is to be in Philadelphia. Affirmed.

4. That the intended corporation is to have perpetual succession by its corporate name. Affirmed.

5. Tliat the names and addresses of the subscribers are given. Affirmed.

6. That there is to be no capital stock. Affirmed.

7. That the funds necessary for the maintenance of the intended corporation will be derived from the income of the estate of William Curran, deceased, and from other sources when applicable to the general purposes of the said intended corporation. Affirmed.

8. That the number of directors and names and addresses of those chosen for the first year are given. Affirmed.

9. That the purpose of the intended corporation falls within the requirements of the Act of April 29, 1874, P. L. 73, and its supplements, and is in harmony with the intent as disclosed by the will and codicils of William Cur-ran, deceased. Affirmed.

10. That the number of subscribers is twelve and they are all of full age. Affirmed.

11. That all of the subscribers are citizens of this Commonwealth. Affirmed.

12. That there are no similar-named corporations in this county or State. Affirmed.

13. That the object of the intended corporation is lawful. Affirmed.

14. That the intended corporation is not likely to be injurious to the community. Affirmed.

Conclusions of law.

1. The application is in proper form. Affirmed.

2. The name of the corporation is a proper one. Affirmed.

3. The charter applied for is within the purview of the Act of April 29, 1874, P. L. 73, and its supplements. Affirmed.

4. The intended corporation has a lawful object and is not likely to be injurious to the community. Affirmed.

The recommendation of the master that the charter of “The Curran Foundation” as submitted by him be approved is granted and decree entered, and exceptions are hereby dismissed.


author: Gest, J.,

text:
    O’Reilly’s Estate.

      Arthur S. Minster) for exceptant; Francis Mallon, contra.
    Feb. 1, 1929.
   Gest, J.,

This estate is insolvent, and the undertaker, whose claim was not awarded in full, endeavored at the audit to surcharge the accountant by reason of her alleged negligence in the administration of the estate.

The decedent died intestate, unmarried and leaving as his sole heir a' daughter, the administratrix, who is a nun or sister in religion, living in a convent. The only assets of the estate consist of $933.16, due as a death benefit or something similar from the Baldwin Locomotive Works, of which he was an employee, and $112.50 cash on deposit in a trust company. The administratrix engaged as her counsel Jere J. Crowley, who was at the *time an attorney of good standing at the bar. The checks for these two sums, made to the order of the administratrix, were received by her from the Baldwin Locomotive Works and the trust company, respectively, and, at Crowley’s request, she endorsed the checks and sent them to him for deposit in her account. Crowley, however, embezzled the money and then died insolvent. The administratrix received, as a dividend on her claim, the sum of $146.38, with which she has charged herself in this account.

The well-established rule, as stated in Calhoun’s Estate, 6 Watts, 185, is that a fiduciary is bound to act with common skill, common prudence and common caution, or, as it is stated in Skeer’s Estate, 236 Pa. 404, common skill, common prudence and ordinary business caution. This is the general rule in other jurisdictions as well. Thus it has been held that a fiduciary is not responsible for money of the estate stolen by burglars from his safe where he kept his own money: Stevens v. Gage, 55 N. H. 175; Williams on Executors (11th ed.), 1426. So a trustee is not liable for the default of a broker employed in the customary manner for the purchase of investments: Speight v. Gaunt, 22 Ch. Div. 727, 9 A. C. 1; or for the default of a collection agent, properly employed: Re Brier, 26 Ch. Div. 238; Re Weall, 42 Ch. Div. 674.

The fiduciary’s position is even stronger in the case of embezzlement by a reputable lawyer, who is not a mere agent, for attorneys-at-law are required, by Act of Assembly of April 14, 1834, § 68, P. L. 354, to be of an honest disposition and learned in the law. For that reason, they are examined by duly appointed authority before admission, and on admission to the bar become officers of the court. Their counsel and technical assistance are necessary in the settlement of a decedent’s estate, and their relation to their clients is universally recognized as of a confidential nature.

It has been often decided that an executor who places claims for collection in the hands of his attorney, who is of good repute, is not responsible for the attorney’s embezzlement of the proceeds, Landmesser’s Estate, 126 Pa. 115; Webb’s Estate, 165 Pa. 330, and the Auditing Judge cites also Bender’s Estate, 278 Pa. 199, and Darlington’s Estate, 245 Pa. 212. Schilskey’s Estate, 12 Dist. R. 181, cannot be distinguished in essence from the present case. There the administratrix and her attorney together visited the saving fund to draw out money belonging to the decedent. She gave her receipt for the money, which was paid by the officer of the saving fund to her attorney with her consent, to be deposited by him in the trust company which had become her surety and where she had opened her account. The attorney, however, embezzled the money, but this court refused to surcharge the administratrix. President Judge Hanna said in words very pertinent to this case: “We think, in view of all the facts, she exercised the common prudence and caution generally exercised by persons acting in a fiduciary capacity; she relied upon and confided in her attorney and believed he was capable and honest. It would be most unusuhl for an administrator, especially a woman in humble life and ignorant of the mode of conducting the business connected with the settlement of an estate, as this accountant seemed to be, -to suspect a trusted attorney and examine whether he had deposited money received by him immediately upon its receipt in the estate’s bank account.” We do not mean to say that a fiduciary may not, in any circumstances, be liable for the default of his attorney, for ex facto oritur jus and the facts may disclose a case where his reliance was unjustifiable, but in the present case nothing of the sort appears. The administratrix was a sister in religion, living in a convent; for her the business world was non-existent, and she was virtually compelled to rely upon her trusted attorney in the details of her administration. The exceptions on this point are dismissed.

The exceptions filed to the action of the Auditing Judge in cutting down the amount of the undertaker’s bill do not require discussion, and these exceptions are also dismissed.

All exceptions are dismissed and the adjudication is confirmed absolutely.

NOTE. — See Kline’s Estate, 280 Pa. 41, cited by Judge Stearne, Auditing Judge.


author: Martin, P. J.,

text:
    Allen et al. v. Sarshik et al.

      D. P. Hibberd, for plaintiffs; H. Shapiro, for defendants.
    Oct. 8, 1928.
   Martin, P. J.,

Plaintiffs filed a bill in equity, averring that they were owners of an apartment-house situated at No. 4701 Wayne Avenue, in the City of Philadelphia, which was occupied by tenants and subject to the lien of mortgages amounting to $260,000; that the defendant, Morris A. Sarshik, with the intention of defrauding the plaintiffs of the rents, induced them to convey the property to George H. Pennypacker, who was a strawman for Sarshik, and to embody in an agreement that plaintiffs would accept a mortgage of $50,000, executed by Pennypacker, secured upon the property, and that all leases existing, and those thereafter to be executed, should be delivered to Sarshik, who would act as agent for the collection of the rents and “pay from said rentals the taxes, water rents, repairs and interest on first, second and third mortgages, after deduction of 5 per cent, commission on the rents collected.” The bill avers that Sarshik had no intention of complying with the terms of his agency, but devised this scheme to induce plaintiffs to convey the property to Pennypacker and to enable Sarshik to collect the rents, which he intended to retain or convert to his own use, and in pursuance of his scheme he collected the rents to the extent of $15,000, but failed to apply them to the payment of taxes, interest and other charges, and appropriated them to his own use; that he allowed one of the mortgages to be foreclosed and the property to be sold by the sheriff; that Pennypacker’s bond is of no value, and plaintiffs lost their property.

The bill prays for an order requiring Morris A. Sarshik to account for the rentals collected by him from tenants of the premises; for an injunction to prevent the disposal of any rentals remaining in the hands of Sarshik or the corporation, which is alleged to have received some of the money and to be under the control of Sarshik; and that Morris A. Sarshik and Morris A. Sarshik, Inc., be decreed to pay plaintiffs damages by reason of the fraud perpetrated upon them.

The defendant, Morris A. Sarshik, filed preliminary objections to the bill, averring:

“1. That the liability for all of the causes of action set forth cannot be asserted against all of the material defendants and no adequate reason appears why those causes should be joined in order to promote the convenient administration of justice.

“2. That upon the facts averred plaintiffs have a full, complete and adequate remedy at law.

“3. That the-defendant should not be required to answer the facts averred, since he has a full and complete defense to the plaintiffs’ claim which does not require the production of evidence to sustain, which is as follows:

“(a) The bill shows on its face that Morris A. Sarshik is not liable to the plaintiffs in any manner whatsoever.

“(b) The bill shows on its face that the plaintiffs have no right to demand an account from Morris A. Sarshik.

“(c) The bill shows on its face that there was no contractual relationship between Morris A. Sarshik and the plaintiffs.”

Plaintiffs discontinued the suit as to George H. Pennypaeker.

The averments of the bill must be assumed true. They disclose a deliberate and premeditated intention on the part of Morris A. Sarshik to defraud plaintiffs by collecting the rents and failing to apply them in accordance with the terms upon which he was trusted to receive them, that is, to apply them to the payment of taxes and interest, but he converted the money to his own use when the intention was carried out, which was a fraud upon plaintiffs.

Sarshik did not sign any of the agreements, and his scheme was skillfully devised to avoid a contractual relation between him and plaintiffs which would enable plaintiffs to institute an action at law against him. Redress for this fraud perpetrated by Sarshik upon plaintiffs can be obtained in a court of equity.

And now, to wit, Oct. 8, 1928, after hearing, the preliminary objections to the bill are dismissed, and defendants are required to answer over within fifteen days, under penalty of having the bill taken pro confesso. It is ordered that defendants pay the costs.


author: Barnett, P. J.,

text:
    Commonwealth v. Sheaffer.

      J. M. McKee, for Commonwealth; I/uke Baker, for defendant.
    July 28, 1928.
   Barnett, P. J.,

The defendant was charged in the indictment, containing four counts, with resisting an officer, resisting a citizen acting as an officer, assault and battery on an officer and assault and battery on a citizen. He was convicted on the first count, charging resisting an officer. Motions in arrest of judgment and for new trial are now before us.

The motion in arrest of judgment must be overruled. It is founded, not upon exceptions to the indictment, but on the alleged insufficiency of the evidence to sustain the indictment and upon exceptions to the charge of the court. Upon neither of these grounds can the motion be sustained. “Arrests of judgment arise from intrinsic causes appearing on the face of the record:” 3 Chit. Blae., page 395. In criminal cases, an arrest of judgment is founded on exceptions to the indictment: Id., vol. 4, 375. This is the general rule, although an exception exists where a pardon is pleaded before sentence:” Delaware Division Canal Co. v. Com., 60 Pa. 367, 371; Com. v. Pennsylvania R. R. Co., 72 Pa. Superior Ct. 353, 356; Com. v. Weaver, 61 Id. 571, 582; Com. v. Zaybrook, 30 Id. 111, 113; Swan v. Com., 104 Pa. 218, 221. For the purposes of such a motion, the evidence in the ease forms no part of the record, nor does the charge of the court: 16 Corpus Juris, §§ 2782, 2783, page 1255; Sadler’s Crim. Proc., § 516; Com. v. Nathan, 93 Pa. Superior Ct. 193.

The count in the indictment upon which the defendant was found guilty was drawn upon that part of section 8 of the Act of March 31, 1860, P. L. 382, which reads as follows: “If any person shall knowingly, wilfully and forceably obstruct, resist or oppose any sheriff, coroner (or) other officer of the Commonwealth, or other person duly authorized, in serving or attempting to serve or execute any process or order of any court, judge, justice or arbitrator, or any other legal process whatsoever, or shall assault or beat any sheriff, coroner, constable or other officer or person, duly authorized, in serving or executing any process or order as aforesaid . . . such person shall be guilty of a misdemeanor,” etc.

It appeared at the trial that the Newport Borough Council had recently appointed P. R. Flurie to the office of borough policeman. The appointment was concededly void, for Flurie, at the time it was made, was a member of the council and, therefore, ineligible.' Without knowledge of this fact, Flurie, in good faith, attempted, without a warrant, to arrest the defendant for a breach of the peace alleged to have been committed in his presence. The defendant, as the jury found, pushed him aside and escaped. With reference to the fact that the officer at the time of the attempted arrest did not have a warrant, the court said to the jury: “An officer who detects a man in the commission of a crime, whether it be a breach of the peace or some other offense, has a right to arrest him on view, and his right, under such circumstances, is a right under the law to take in custody a man whom he sees violating the law, and is a process, is a legal process, within the meaning of the act. So that where a police officer undertakes to arrest a man, either with a warrant authorizing him to do so or upon view of an offense committed by the man, and though he does not have a warrant for the arrest, in either case he is in the performance of his legal duty, of his common, everyday function, and in either case, within the meaning of this act, he is executing a legal process for the arrest of such offender.”

The language quoted is alleged, in the first reason for new trial, to be erroneous, and we are convinced that it is so. There is authority, as we are informed by the brief of private counsel for the prosecutor, to support the position of the court at the trial. In People v. Nash, 1 Idaho, 206, 209, it is held that “the word ‘process’ as used in a statute punishing the offense of resisting the sheriff while attempting to serve process, is used in its extended or unlimited sense and is equivalent to the sheriff’s official authority and does not mean that the sheriff shall be protected only while he is serving written process alone. It would be a strange law that would require an officer, under sanction of an oath and the obligations of an official bond, to perform certain duties without written process and yet leave him with no protection other than that which is common to every citizen.” See, also, Gollobitsch v. Rainbow, 84 Ia. 567, 51 N. W. Repr. 48; People v. Nevins, 1 Hill (N. Y.), 154, 168, 170; State v. Shaw, 73 Vt. 149, 50 Atl. Repr. 863, 869. The reasoning of the Idaho case appeals to the sense of justice, but it is an appeal that must be directed to the lawmakers rather than to the courts, which may not read into a statute what is not there expressed or at least plainly implied. In a penal statute, requiring strict construction, we do not believe that the words “any process or order of any court, judge, justice or arbitrator, or any other legal process whatsoever,” may properly be held to include the general, unwritten authority of an officer to make an arrest in certain cases without a warrant. No court in Pennsylvania, so far as we have been able to ascertain, has ever so held. If the legislature had intended the act to be so understood, it need not have taken the pains to particularize the sort of “process” as it did, or to have used the word “process” at all. The purpose would have been more clearly and much more simply expressed by a provision for the protection of the officer “while in the exercise of his lawful authority.” The Vermont statute, for example, uses the words “in the execution of his office,” omitting such words as “process” and “order,” which appear in our act: State v. Lovett, 3 Vt. 110. With the exception of the cases cited by Commonwealth’s counsel, above noted, all the decisions and all the text-book authorities to which we have been referred or which we have examined seem to construe our Act of 1860, or similar penal statutes, as intending by the word “process” a written precept. See 8 Ruling Case Law, § 355, page 326; 29 Cyc., 1328v 1330, 1331; 32 Cyc., 419, and notes; 1 Whart. Crim. Law, § 650; Com. v. Farling, 12 Dist. R. 732; Com. v. Meiskey, 16 Id. 354; Com. v. Wertz, 20 Id. 820. It is a significant fact, as contended by counsel for the defendant, that since the passage of the Act of 1860, making resistance to an officer serving “process” a misdemeanor, the legislature, in a number of acts authorizing arrest without warrant for certain offenses, has felt it necessary to provide penalties for resistance to an officer making such arrest, which would have been unnecessary if such resistance fell within the purview of the Act of 1860. See the Vehicle Code of May 11, 1927, § 1217, P. L. 886; Act relating to Agricultural Societies, April 26, 1883, § 2, P. L. 14; Fish Law of July 28, 1917, § 145, P. L. 1215; Fish Law of May 22, 1889, § 9, P. L. 261; Game Law of May 24, 1923, § 1107, P. L. 359. It will be noted that the penalties provided in these later acts are all much less severe than that prescribed by the Act of 1860, indicating that the offenses are of a different and less serious character than that of resisting an officer armed with “process” under the Act of 1860. In Com. v. Nichols, 4 Dist. R. 318, the late Judge Clayton, considering this act, said: “Legal process cannot be by parol. The term indicates an authority in writing. A landlord’s warrant is not legal process within the meaning of section 8 of the Penal Code. Until an appraisement has been made, the constable is only the landlord’s bailiff. After appraisement, the case might be different. The Act of 1772 gives a remedy for the rescue of goods distrained, but indictment will not lie under the Act of 1860. This question does not appear to have been passed upon by the Supreme Court, but it has been decided in the case of Com. v. Leech, 27 Pitts. L. J. 233, and we concur in that decision.”

We are of opinion that the quoted instruction to the jury involved too liberal an interpretation of section 8 of the Act of 1860, and that the officer not having been engaged in attempting to serve or execute process within the meaning of the act, the evidence is insufficient to sustain the conviction.

And now, July 28, 1928, the motion in arrest of judgment is overruled and discharged; the motion for new trial is made absolute.

From J. N. Keller, Mifflintown, Pa.