author: Groff, J.,

text:
    Seldomridge v. Seldomridge et al.

      Charles G. Baker, for rule; Amos E. Burkholder, contra.
    Jan. 18, 1930.
   Groff, J.,

This is an action brought in the Court of Common Pleas of Lancaster County, the original writ being the process known as an attachment at common law, wherein Margaret M. Seldomridge is the plaintiff and S. Melvin Seldomridge the defendant, and H. S. Shirk, administrator of the estate of the said S. Melvin Seldomridge, presumed decedent, is garnishee.

It seems from the pleadings that Margaret M. Seldomridge, the plaintiff, was married to S. Melvin Seldomridge on July 6, 1909; that they lived and cohabited together as man and wife until April 1, 1914, when the defendant absented himself from the home of the plaintiff and has not been heard of since. At the time of the desertion the parties were the parents of two children — Anna Dorothea Seldomridge, who was born on April 24, 1910, and Marian Ruth Seldomridge, who was born Feb. 2, 1912. From that time to the present the defendant’s whereabouts has been unknown. The plaintiff has maintained herself and children from the day her husband absented himself to the time of the bringing of this suit. The plaintiff, however, was divorced from the defendant on July 7, 1923, by the Court of Common Pleas of Lancaster County, to May Term, 1923, No. 9. The defendant, on Nov. 19, 1928, was decreed a presumed decedent by the Orphans’ Court of Lancaster County, the proceedings appearing in that court to May Term, 1928, No. 30. They established the legal presumption of defendant’s death as of June 13, 1915. The plaintiff claims that she necessarily expended and laid out for her support and maintenance from the time of the desertion until the time she obtained her divorce, on July 7, 1923, the sum of $2886, and that she laid out and expended for the support, maintenance and education of her minor children, from the time of the desertion of defendant to April 1, 1929, the sum of $4680. These two sums she seeks to recover in this proceeding from the administrator of the decedent’s estate from moneys which have recently come into his hands and since her divorce from her husband.

The question is, can she recover these two sums of money in the present proceedings? She claims that she can under the Act of Feb. 22, 1718, 1 Sm. Laws, 99, and under the Act of Assembly approved May 4, 1855, P. L. 430.

In Von Helmold v. Von Helmold, 19 Pa. Superior Ct. 217, the syllabus reads as follows:

“The Act of May 4,1855, P. L. 430, which provides that ‘whenever any husband from drunkenness, profligacy or other cause shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader under the Act of Feb. 22, 1718, 1 Sm. Laws, 99,’ does not confer upon deserted wives all the privileges set forth in the Act of 1718, but only those which inhere in woman as feme sole traders, namely, those affecting their rights in their own estate and earnings, and their right to trade. The act does not sustain an application for an attachment against the real estate of an absent husband by a deserted wife.”

We, therefore, conclude that if this plaintiff can recover she must do so under section 4 of the Act of 1718, 1 Sm. Laws, 99, which reads as follows:

“But if such absent husband, having his health and liberty, stays away so long from his wife and children, without making such provision for their maintenance before or after his going away, till they are like to become chargeable to the town or place where they inhabit; or in case such husband doth or shall live in adultery, or cohabit unlawfully with another woman, and refuses or neglects within seven years next after his going to sea, or departing this province, to return to his wife, and cohabit with her again; then, and in every such case, the lands, tenements and estate, belonging to such husbands, shall be and are hereby made liable and subject to be seized and taken in execution, to satisfy any sum or sums of money, which the wives of such husbands, or guardians of their children, shall necessarily expend or lay out for their support and maintenance; which execution shall be founded upon process of attachment against such estate, wherein the absent husband shall be made defendant; any law or usage to the contrary in any wise notwithstanding.”

If the defendant had lands, tenements and estate belonging to him, and if the plaintiff was not estopped by the death of the defendant, or by the divorce, or the statute of limitations, and her proceedings were regular, she then could recover under the act of assembly above cited.

This proceeding was originally started by an attachment as an original process. That writ seemed to have been used in England and in the United States prior to and at the time the statute of 1718 above referred to was enacted. That statute apparently intended that the writ of attachment could be used as an original writ in proceedings under the act.

In 3 Blackstone, 279, we find that attachment was a common law writ called attachment or pone from its language, “pone per vadium et salvos plegios,” and in 6 Corpus Juris, § 3, at page 29, we find that “this was a writ, not issuing out of chancery, but out of the Court of Common Pleas, being grounded on the non-appearance of defendant at the return of the original writ, and thereby the sheriff was commanded to attach him, by taking gage, that is, certain of his goods which he was to forfeit if he did not appear, or by making him find safe pledges or sureties who were to be amerced in case of his nonappearance.”

Its purpose apparently was, first, to compel the appearance of the debtor, and, second, to act in rem, that is, to create a lien, as provided in the Act of 1718, against his lands, tenements and estate, which he owned at the time of the attachment and which he had not given, granted or alienated from his wife and children. If he had granted or alienated his lands, tenements and estate which he owned at and prior to the time of the attachment, for the purpose of preventing his wife from obtaining what was justly due her, then, under section 2 of the said Act of 1718, that gift, grant, conveyance, etc., would be null and void.

In Miller v. Miller, 4 Dist. R. 309, reading from the syllabus, we find that “a wife who has been deserted by her husband may sue him for her support during the time he has neglected to support her. The Acts of 1718 and 1855, authorizing such suit, have not been repealed by the Act of June 8, 1893.”

The Miller case, supra, and other cases which we have examined, as well as an examination of the common law and the various books on practice, leads us to conclude that the proper practice in issuing an attachment was not followed in this case. It would seem that an affidavit stating the facts sufficiently to bring the case within the statute should first be filed and presented to court (we doubt if the affidavit filed in this case was sufficient under the act of assembly); and that the court should then allow and direct the writ of attachment to issue accordingly and fix special bail so that the defendant’s lands, tenements and estate might be relieved of the lien thereof in case the bail as directed was entered. That was not done in this case. An affidavit was apparently filed with the prothonotary, and the writ of attachment was issued as the original process, without leave of court, the administrator of the decedent defendant being mentioned as one of the defendants.

Forgetting all technical defenses that might arise, we feel that the plaintiff is not entitled to the judgment she seeks in this proceeding for other reasons. The statement filed in the case shows that on Nov. 19, 1928, the defendant was decreed dead, as of June 13, 1915. The attachment was issued Sept. 13, 1929, almost ten months after the decree of the Orphans’ Court was entered declaring defendant dead and fourteen years and three months after the time that the Orphans’ Court said the legal presumption of death arose.

At the time of issuing the attachment the real estate had passed to the persons entitled to the same under the intestate laws of Pennsylvania, under the Fiduciaries Act of June 7, 1917, P. L. 477, section 6, paragraph (f), which reads as follows:

“Whenever the said court shall enter a decree that the presumption of death of any person has been established, and such decree shall be confirmed absolutely, the real estate of the presumed decedent shall pass and devolve as in the case of actual death, and the persons entitled by will or under the intestate laws may enter and take possession; . . . .” and paragraph (g) reads: “The executor or administrator to whom letters have been issued upon the estate of a presumed decedent, as aforesaid, shall administer the estate in the same manner and with the same effect as the same would be administered under existing laws of this commonwealth, if the presumed decedent were in fact dead. . . .”

It is also a well known law in the State of Pennsylvania that upon a man’s death his personal property passes to his administrator for the payment of his debts. This had occurred prior to the time of plaintiff’s starting her suit, and that fact was well known to her at the time she started her proceedings.

The act upon which plaintiff relies is “ ... or in case such husband doth or shall live in adultery, or cohabit unlawfully with another woman, and refuses or neglects within seven years next after his going to sea, or departing this province, to return to his wife, and cohabit with her again; then, and in every such case, the lands, tenements and estate, belonging to such husbands, shall be and are hereby made liable and subject to be seized and taken in execution . . . .” the whole remedy contemplates that the husband is alive and in being at the time the action is instituted. The act certainly cannot mean that this proceeding, which acts both in person and in rem, could be instituted against a party who is dead.

In the case of Longbotham v. Longbotham, 14 Lanc. Law Rev. 383, a ease somewhat similar to this, Waddell, P. J., in his opinion, said:

“The object of the attachment is to compel the appearance of the defendant and create a lien in favor of the plaintiff upon all the property levied upon. This lien will continue until the plaintiff’s rights are properly adjudicated.

“If we are correct in holding that the attachment referred to in the act is to be regarded as an original process, then all subsequent proceedings should be conducted as if a summons only had issued.

“The pleadings, issue and trial should be the same as if the proceedings had commenced by summons in assumpsit or debt under the old practice. This being so, there was no propriety in appointing trustees to take possession of the property and close up the defendant’s estate. Such a course would be proper under the act relating to domestic attachments, but, as we have said, this act has no application to the proceedings in this case.”

In other words, this action being the same as a suit in assumpsit or trespass, except the original writ being called an attachment, and not a summons, the plaintiff here could not, in our opinion, attach goods and chattels in the hands of the administrator, but would be obliged to do one of two things— the defendant having been dead at the time the process was issued, the plaintiff would either have to bring suit against the administrator of the decedent and recover judgment and then collect that judgment through the Orphans’ Court, or present her claim in the Orphans’ Court. She could not sue the deceased as though he were living by a suit begun by attachment any more than she could sue him in a suit begun by assu/nvpsit if he were dead. The action necessarily would be against the decedent’s representatives. He owned nothing and had nothing at the time the attachment was issued. It had all passed, under the law, to those entitled thereto, not by his own act for the purpose of defrauding his wife out of what might have been justly due her, but by the act of the law, and that transfer cannot be set aside. Then, too, this woman having been divorced from her husband more than six years before her action was brought, the question might arise whether the statute of limitations would run against her, but we are not called upon to discuss that question.

The record shows that there is in excess of $10,000 here in the hands of the administrator and garnishee. The sole heirs to this estate are two minor children. It does not appear from the record that guardians have been appointed for them or that anybody representing them had notice of this proceeding. The garnishee who represents this estate has done nothing more to defend the property in his hands and the interest of the wards than to answer the interrogatories filed.

The attachment issued as an original process to compel the appearance of the defendant and to obtain a lien upon his lands, tenements and estate was issued after his death and is now being treated as a domestic attachment, which is foreign to the purpose of the original writ issued in this case.

For the reasons stated above,, we cannot enter judgment for the plaintiff, and, therefore, discharge the rule to show cause why judgment should not be entered against H. S. Shirk, administrator of the estate of S. Melvin Seldom-ridge, presumed decedent, garnishee, and in favor of the plaintiff.

Rule discharged.

From George Ross Eshleman, Lancaster, Pa.


source: Caselaw Access Project

author: Newcomb, P. J.,

license: Public Domain

text:
    Stein Company v. Gross.

      E. A. DeLaney and J. Klensin, for plaintiff; J. B. Jenkins, for defendant.
    March 7, 1930.

   Newcomb, P. J.,

Assumpsit for the price of sundry merchandise.

While the above caption is that of the statement, the plaintiff is named in three different ways on the record. It is impossible to say whether it is a corporation, a copartnership or an individual doing business under an assumed name. The defect is one of form rather than substance. Hence, it can be dealt with now only by treating this affidavit as a motion to strike off.

As such, the motion is allowed and the statement will be stricken off at the end of fifteen days unless a more specific statement shall have been filed in the meantime showing the identity of plaintiff.

From William A. Wilcox, Scranton, Pa.


text:
    Humphreys v. Schofield, Director of Public Safety of the City of Philadelphia, et al.

      Joseph P. Gaffney, for plaintiff.

      A. T. Ashton, James Francis Ryan, George Wharton Pepper and Theodore S. Paul, for defendants.
    May 3, 1930.
   Stern, P. J.,

The plaintiff filed his petition for a writ of alternative mandamus against the Director of the Department of Public Safety and the Chief of the Bureau of Building Inspection to require them to issue to the plaintiff a permit for the erection of a certain building, or to show cause why such permit should not be issued. To this petition an answer was filed by the defendants. The Commissioners of Fairmount Park filed their petition for leave to intervene as parties defendant, which permission was duly granted, and said Commissioners also filed an answer to the plaintiff’s petition. The petitioner filed a traverse to the answer of the defendants, and all of the parties entered into a written agreement that trial by jury be dispensed with, and that the case be tried before a judge of the court, the judgment of the court to be subject to appeal at the option of any of the parties.

The parties have presented to the court a statement of facts admitted by all of them to be true, and most of which are embodied in the findings of the court hereinafter made. Some of the facts agreed upon were not deemed by the court to be essential to the determination of the cause and, therefore, have been omitted from the court’s findings.

Upon petition, answers, traverse, agreed statement of facts and testimony taken, the court makes the following

Findings of fact.

1. The plaintiff is the owner of a certain lot or piece of ground situate in the Thirty-fifth Ward of the City of Philadelphia, described in his title deed as beginning at a point formed by the intersection of the southeast side of Bensalem Avenue (as laid down on the confirmed city plan one hundred and fifty feet wide) with the southwest side of Comly Road, and extending partly along the southwest side of Comly Road and partly along the southeast side of Bensalem Avenue, containing .2399 of an acre, more or less, said lot or piece of ground being of an approximate value of $2000.

2. On or about Nov. 2, 1928, the plaintiff filed with the Bureau of Building Inspection his application in writing, in due and legal form, for a permit to construct upon said ground a one-story brick building to be used for a service station. In said application the plaintiff described the location of said ground as “S. E. Cor. Roosevelt B’lv’d & Comly Road.” Accompanying the application were plans and specifications of the proposed building in due and proper form.

3. On or about Nov. 8, 1928, the defendant Morris Brooks, Chief of the Bureau of Building Inspection, in writing notified the plaintiff’s attorney that the application and accompanying documents were in conformity with the requirements of the building laws, but that the application had been disapproved by the Commissioners of Fairmount Park under authority of the Ordinance of Jan. 30, 1923, and, therefore, said defendant was obliged to refuse to grant the permit.

4. The plaintiff’s application had in fact been disapproved by the Commissioners of Fairmount Park, intervening defendants herein, on or about Nov. 5, 1928, their action on said application being as follows: “Disapproved as prohibited by law.” The said action was based solely upon the opinion of the Commissioners that a'permit would have been in violation of the Ordinance of Jan, 30, 1923, as amended by Ordinance of July 10, 1928.

5. The Ordinance of Jan. 30, 1923, hereinbefore referred to, is as follows:

“An ordinance to establish regulations for the location, size and use of buildings adjoining Cobbs Creek Park and Parkway, and Roosevelt Boulevard.

“Section 1. The Council of the City of Philadelphia ordains, That no building, structure or fixture, any portion of which comes within two hundred feet from the boundary line of Cobbs Creek Park or Parkway and Roosevelt Boulevard, shall hereafter be erected, altered or used, except in conformity with the following regulations:

“No such building hereafter erected on a lot abutting on Cobbs Creek Park or Parkway and Roosevelt Boulevard shall be used for a stable, for a public garage, for any manufacturing purpose, or for the display of a billboard or roof sign, and no such building, structure-or fixture shall be erected or altered until the location and plans therefor have been approved by the Commissioners of Fairmount Park, and no sign, notice or advertisement of any kind visible from any point within the boundaries of Cobbs Creek Park or Parkway and Roosevelt Boulevard shall be displayed thereon, unless the design and location of said sign, notice or advertisement have been similarly approved. No permit for such erection or alteration shall be issued until the approval of the Commissioners has been obtained, and the erection or alteration shall conform to the design, location and plans approved.

“Section 2. Any owner, tenant or occupant of a building, structure or fixture, responsible for its erection, alteration or use in violation of any of the foregoing regulations, shall be liable to a penalty of not less than five dollars nor more than twenty-five dollars, to be recovered for the use of the city before any Magistrate, as debts of like amount are now recoverable, and, if the portion of such building, structure or fixture, erected, altered or used or the sign, notice or advertisement displayed, in violation of any of said regulations, is not removed or the prohibited use is not discontinued within five days after the imposition of the penalty, the person offending shall be liable to a further penalty of twenty-five dollars a day, to be recovered as aforesaid, for every day after the expiration of the said period of five days, during which such violation continues.

“Approved the thirtieth day of January, A. D., 1923.

“J. Hampton Moore,

“Mayor of Philadelphia.”

6. Said Ordinance of Jan. 30, 1923, was amended by Ordinance of July 10, 1928, which is as follows:

“An ordinance to amend an ordinance entitled ‘An Ordinance to establish regulations for the location, size and use of buildings adjoining Cobbs Creek Park and Parkway, and Roosevelt Boulevard,’ approved January 30, A. D. 1923.

“Section 1. The Council of the City of Philadelphia ordains, That the ordinance entitled ‘An Ordinance to establish regulations for the location, size and use of buildings adjoining Cobbs Creek Park and Parkway, and Roosevelt Boulevard,’ approved January 30, A. D. 1923, is hereby amended by inserting after the word ‘manufacturing’ in Section 1 thereof the words ‘or commercial,’

“Approved the tenth day of July, A. D. 1928.

“Harry A. Mackey,

“Mayor of Philadelphia.”

7. By Ordinance of Dec. 24, 1902, the Board of Surveyors were authorized to place on the city plan an avenue 300 feet wide beginning at the intersection of Broad and Cayuga Streets following the direction therein more particularly set forth and extending to Torresdale.

8. By Ordinance of July 8, 1908, the Ordinance of Dec. 24, 1902, was amended by changing the terminus of this avenue from Torresdale to Solly Street, establishing a concourse at Solly Street, and further authorizing the Department of Public Works to project suitable avenues for development extending northwardly, northeastwardly and eastwardly from Solly Street,

9. By Ordinance of Dee. 14, 1910, the Department of Public Works was directed to notify property owners on the highways therein specified that said highways would be required for public use to their full widths “as now on the city plan, viz., the Boulevard from Rhawn Street to the Concourse at Solly Avenue; the Concourse at the Boulevard and Solly Avenue, and Bensalem and Poquessing Avenues from the said Concourse to the southwest boundary line of Pennypack Park, and Holme Avenue from said Concourse to Willets Avenue.”

10. By Ordinance of June 28, 1915, the Department of Public Works was directed to notify owners of property that Bensalem Avenue, from Lexington Avenue to Welsh Road, would be required for public use.

11. By Ordinance of July 16, 1919, the Board of Surveyors was directed to change the name of “The Boulevard, from Broad Street to Solly Street, to The Roosevelt Boulevard.”

12. By Ordinance of March 2,1921, the Board of Surveyors was authorized to place upon the city plan Bensalem Avenue, of the width of 125 feet, from Welsh Road to Poquessing Creek, and by Ordinance of July 7, 1921, the Department of Public Works was authorized “to open to its full width as upon the city plan Bensalem Avenue from Welsh Road to Poquessing Creek.”

13. By Ordinance of Jan. 5, 1922, “the Roosevelt Boulevard and its extensions as completed from time to time” were placed under the care and management of the Commissioners of Fairmount Park.

14. By Ordinance of June 16, 1924, the Philadelphia Rural Transit Company was authorized to operate motor busses “along Oxford Avenue to Roosevelt Boulevard, thence along Roosevelt Boulevard to Bensalem Avenue, thence along Bensalem Avenue to Southampton Road,” etc.

15. By Ordinance of Dec. 23, 1925, the Department of Public Works was authorized to construct sewers in “Bensalem Avenue (east side) from Strahle Street to Lexington Avenue.”

16. By Ordinances of June 28, 1926, and Sept. 21, 1926, an appropriation was made and authority given to the Department of Public Works for “the improvement of the east driveway of the Bensalem Avenue branch of the Roosevelt Boulevard from Grant Avenue to Poquessing Creek.”

17. On the official city plan, as it existed on Jan. 30, 1923, and at all times since, the Roosevelt Boulevard (300 feet wide) extends from Broad Street to Solly Street, which is at the Concourse or Pennypack Circle. From this latter point there extend northwardly, northeastwardly and eastwardly three other avenues, to wit, Poquessing Avenue, Bensalem Avenue (150 feet wide) and Holme Avenue.

18. According to the official city plan, as it existed on Jan. 30, 1923, and at all times since, the plaintiff’s property is located on Bensalem Avenue at its intersection with Comly Road, and is not situated on Roosevelt Boulevard.

19. The plaintiff’s property does not, and never did, abut on Roosevelt Boulevard, nor does any part of it come within 200 feet thereof.

Discussion.

The defendants rely for justification of their action in refusing the plaintiff’s application wholly upon the Ordinances of Jan. 30, 1923, and July 10, 1928. The plaintiff contends that these ordinances are invalid and unconstitutional, and, furthermore, that they do not apply to his property.

Taking up the latter contention first, the chancellor is of opinion, and has found as a fact, that the plaintiff’s lot or piece of ground upon which he wishes to erect a public service station is not on the Roosevelt Boulevard, and, therefore, is not subject to the ordinances forbidding the erection on that boulevard of buildings for commercial use. The plaintiff’s ground is located on Bensalem Avenue, and, in the opinion of the chancellor, Roosevelt Boulevard, as that term is used in these ordinances, does not include Bensalem Avenue.

The Ordinance of Jan. 30, 1923, is a penal ordinance and must be strictly construed. Moreover, it is drastic, in that it takes away from owners the right to use their properties for various purposes. Therefore, when in such an ordinance the phrase “Roosevelt Boulevard” is used, it must be held to apply to what is officially known, or, to be more exact, what was officially known at that time, as “Roosevelt Boulevard.”

As found by the chancellor in the findings of fact, it appears that Roosevelt Boulevard extends on the city plan only as far as Pennypack Circle or Solly Street. City Council itself passed the ordinance by which the Boulevard was thus designated, to wit, the Ordinance of July 16,1919. The City Council also expressly put Bensalem Avenue upon the city plan. All of the ordinances of Council referred to in the findings of fact expressly and carefully distinguish Roosevelt Boulevard from Bensalem Avenue, and in none of them is there indicated the slightest thought on the part of the municipal legislative body that Bensalem Avenue is included in the Roosevelt Boulevard. The only ordinances that can be deemed to have any leaning at all in favor of the defendants are those of Jan. 5, 1922, referring to “Roosevelt Boulevard and its extensions,” and June 28,1926, and Sept. 21,1926, referring to the “Bensalem Avenue branch of the Roosevelt Boulevard.” Even these ordinances, however, cannot be said to be helpful to the defendants’ contention, because by the very use of the phrases “extensions” and “branch” it would appear that in the mind of Council, Bensalem Avenue, while perhaps properly designated as an extension or branch of the Roosevelt Boulevard, would not in the absence of those terms be considered a part of it. Moreover, even conceding that Bensalem Avenue is a branch of the Roosevelt Boulevard, that would no more make it the Roosevelt Boulevard than the Missouri River, which is a branch of the Mississippi River, is itself the Mississippi River and included within the latter name. The fact that Bensalem Avenue may more closely approximate a physical continuation of the Roosevelt Boulevard than the other branch avenues (Holme Avenue and Poquessing Avenue) is not significant, because there is nothing to prevent even a continuous boulevard from having different names at various places. We are all familiar with the Paris boulevards, whose adjoining parts are variously named.

In short, where an ordinance which greatly limits the use of property by its owners and which provides a penalty for its non-observance, contains, the phrase “Roosevelt Boulevard,” that term must be construed as being limited to or consisting of the avenue placed under such designation on the city plan by order of City Council and referred to in numerous other ordinances of City Council existing at the time of the passage of the ordinance in question.

The defendants made some point of the fact that in his original application for a permit the plaintiff himself referred to his lot of ground as being situate at the southeast corner of Roosevelt Boulevard and Comly Road. In the opinion of the chancellor, however, this is of no significance. The plaintiff could not change the names of the streets or the proper construction of the ordinances of Council by his own designation in that regard; neither is there any working of an estoppel, since the defendants were not in any way harmed or misled by this obvious slip on the part of the plaintiff.

For these reasons the chancellor has found that the ordinance relied upon by the defendants does not apply to the plaintiff’s property, and this finding in itself entitles him to the relief sought by him and makes unnecessary a discussion of the other point raised by the plaintiff, namely, that the Ordinance of Jan. 30, 1923, as amended by the Ordinance of July 10, 1928, is invalid and unconstitutional. The chancellor, however, will state his views on this question for the purposes of the record on appeal.

As to that part of the Ordinance of Jan. 30, 1923, which provides that no building shall be erected or altered until the location and plans therefor have been approved by the Commissioners of Fairmount Park, and that no permit for such erection or alteration shall be issued until the approval of the Commissioners shall have been obtained, the chancellor is of the opinion that the same is unconstitutional. In the first place, under the decision of this court in Philadelphia v. Spangler, 9 D. & C. 577, there can be given to the Park Commissioners, in reference to the Roosevelt Boulevard, no greater powers than those of care and management, and these certainly would not justify the right to pass judgment upon the buildings to be erected along the Boulevard and to issue decisions of approval or disapproval in regard thereto. In the second place, even if such power could be granted to the Commissioners of Fairmount Park, or to any other body, it could not be done in the vague and arbitrary manner provided for by the ordinance. The ordinance does not lay down any rules or regulations whatever upon which the discretion of the Commissioners is to be based. It gives them the absolute right to say whether or not a building shall be erected or altered, and an unlimited discretion as to the design and plans of the building and its location on the owner’s lot of ground. Such a grant of power is without precedent in law. There is no right of appeal given. The Commissioners may in their unbridled exercise of power refuse permits for any buildings that are not built of marble, or that are more than two stories high, or are less than twenty stories high, or that are not built in a particular shape which the Commissioners may think desirable. They need give no reasons for their action. They may grant a permit for one building and refuse it for another on a different location, although the two buildings be identical in plan and design. They may refuse approval of a building purely on sesthetic grounds (but not stating this to be the reason for their action), although that would not be permissible under existing judicial decisions. It requires no elaboration of argument to come to the conclusion that such grant of power is wholly invalid.

This conclusion leads to the question as to whether the rest of the ordinance can stand independently, namely, the provision that no building, any portion of which comes within 200 feet from the boundary line of the Boulevard, can be erected on a lot abutting on the Boulevard for use as a stable, a public garage, or any manufacturing or commercial purpose, or for the display of a billboard or roof sign. In the opinion of the chancellor, this provision of the ordinance is severable. It is a categorical injunction that these uses of such buildings shall not be permitted. It is in fact a zoning ordinance. Its terms are clear and definite. It is not so connected and interdependent in subject-matter, meaning and purpose with the invalid provision (requiring the approval of the Commissioners of Fairmount Park) that it cannot be presumed that Council would have passed the one without the other, which is the test in such cases: 36 Cyc. 977. Neither does the chancellor find anything legally objectionable in this provision. While under the legislation of the state the Mayor may appoint a zoning commission, this is merely permissible and not mandatory, and there seems to be no reason why Council cannot itself provide a zoning regulation without any other governmental machinery in connection therewith. The entire subject of the validity of zoning laws has been so fully covered in such cases as White’s Appeal, 287 Pa. 259; Junge’s Appeal (No. 2), 89 Pa. Superior Ct. 548; Ward’s Appeal, 289 Pa. 458; Gilfillan’s Permit, 291 Pa. 358, and Kerr’s Appeal, 294 Pa. 246, that no discussion is here necessary. The provision that manufacturing or commercial uses of buildings abutting on the Boulevard are prohibited seems so reasonably justified as being substantially based on considerations of public health, safety and general welfare that it cannot be contended that it is in any sense arbitrary or unreasonable. For these reasons, therefore, the chancellor is of opinion that this provision of the Ordinances of Jan. 30, 1923, and July 10, 1928, is valid and enforceable.

Conclusions of law.

1. The Ordinances of Jan. 30, 1923, and July 10, 1928, are valid as to the provision forbidding the use of buildings for manufacturing and commercial purposes on ground abutting on Roosevelt Boulevard. Said ordinances, however, are invalid and unconstitutional as to the provision granting the powers therein specified to the Commissioners of Fairmount Park.

2. Said ordinances are not applicable to the lot of ground owned by the plaintiff on Bensalem Avenue, that avenue not being the Roosevelt Boulevard within the meaning of said ordinance.

3. The plaintiff is entitled to the relief sought by him.

The court, therefore, enters the following

Decree.

And now, to wit, May 3, 1930, it is ordered and decreed that a peremptory mandamus issue, ordering and directing the defendants, to wit, the Director of Public Safety and the Chief of the Bureau of Building Inspection of the City of Philadelphia, to issue to the plaintiff, in due form, a permit necessary for the construction and erection of the building proposed to be erected by him on the lot of ground, and according to the plans and specifications, described and set forth in the plaintiff’s application for such permit dated Nov. 2, 1928.

2. The defendants to pay the costs.


author: Martin, P. J.,

text:
    Commonwealth v. Foch Cereal Company et al.

      W. F. Knauer, for plaintiff; Joseph W. Henderson, for defendants.
    July 15, 1930.
   Martin, P. J.,

The defendant, Foch Cereal Company, was granted a permit to manufacture beverages containing less than one-half of 1 per cent, alcohol, under the terms of the Act of Feb. 19, 1926, P. L. 16. A bond for $10,000 was filed by the Cereal Company as principal, with the JEtna Casualty & Surety Company, surety, conditioned, if the principal fully and faithfully observed all the provisions of Act No. 3 of the Laws of 1926, and all laws of this Commonwealth relating to the manufacture, sale, offering for sale, bartering, furnishing, transporting, possessing, delivering within or importing into, or exporting out of, this Commonwealth, of intoxicating liquors, and all the conditions and provisions of any permit issued to the principal by the Permit Board, and in no way violated any of the provisions of Act No. 3, or of the laws of this Commonwealth, or any of the conditions or provisions of the permit, the obligation would be void, but otherwise remain in full force, virtue and effect.

The obligors, jointly and severally, agreed with the Commonwealth of Pennsylvania that upon failure of the principal to observe and comply fully and faithfully with all the provisions of Act No. 3 and of the laws of the Commonwealth, and with all the conditions and provisions of the permit issued to the principal, the bond would become due and payable, that it became effective as of and from the date upon which the permit to the principal was granted, and thereafter continued in full force, virtue and effect, without limit in time, until duly canceled by a regulation or order of the board.

The permit granted to the Foch Cereal Company expired Dec. 31, 1926, but was renewed for the ensuing year.

On July 26, 1927, the license was revoked, after the company was found guilty of unlawful manufacture, possession and storing in containers and transporting in unlabeled barrels and half-barrels cereal for beverage purposes, or beer containing from 2.66 per cent, to 4.37 per cent, alcohol, in violation of the laws of the Commonwealth of Pennsylvania.

On March 6, 1928, judgment was entered on the bond and damages assessed at $10,450.

A petition was presented by the /Etna Casualty & Surety Company, and a rule granted to show cause why the judgment should not be opened.

It was claimed on behalf of the casualty company that the bond did not cover the renewed term of the permit for 1927; that the company was not required to obtain a state permit in addition to registering the Federal permit under which the company operated; and that no damages were proved to have been suffered by the Commonwealth.

The bond by its specific terms became efféctive on the date the permit was granted, and continued “in full force, virtue and effect without limit in time, and until the said bond is duly canceled by a regulation or order of the said board.”

The cereal company was required to file a bond to obtain a state permit, although a Federal permit under which it operated was registered in Pennsylvania : Com. v. Premier Cereal & Beverage Co. et al., 11 D. & C. 627.

The Commonwealth was not required to prove that damages had been sustained by the breach of the condition of the bond. In United States v. Montell, 26 Fed. Cases, 15798, Taney’s Decision, it was said: “This sum was in truth forfeited by Montell by reason of his violation of a duty imposed by the Act of Congress; it was a specific penalty upon the owner and master for the commission of a particular offense against the policy of the law. . . . How could the United States prove any particular amount of damages to have been sustained by them in a suit on this bond? What do they lose? It would be difficult, I think, by any course of proof or any process of reasoning to show that the United States had sustained any particular amount of damages in a case of this description, or to adopt any rule by which the damages could be measured by a jury, or be liquidated by agreement of the parties. The sum for which the parties are to become bound is manifestly a penalty or forfeiture inflicted by a sovereign power for a breach of its laws. It is not a liquidated amount of damages due upon a contract, but a fixed and certain punishment for an offense, and it is not the less a penalty arid a punishment for an offense because security is taken before the offense is committed in order to secure the payment of the fine if the law should be violated:” Lightner v. Com., 31 Pa. 341.

And now, July 15, 1930, the rule to show cause why the judgment should not be opened in the above entitled case is discharged.


author: Henderson, J.,

text:
    Herkness’s Estate.

      Saul, Ewing, Remick <6 Saul, for exceptions.

      Thomas Stokes, Allen Hunter White and Boyd Lee Spahr, contra.
    July 3, 1930.
   Henderson, J.,

There is little need to add to the clear and convincing reasoning of the Auditing Judge. After the death of all his children, the testator gave the corpus of his estate to the persons who would be entitled thereto had he survived his wife and children and died intestate and in like proportions. Had he stopped there, our problem would have been simpler. But he added, “The children and their issue to take per stirpes and not per capita however.”

Without this last sentence the Intestate Act would make a per capita distribution among the grandchildren. We cannot regard this clause as surplusage, if it may be construed as conveying a reasonable intent. The word “however” in the clause introduces a change in the intestate provisions. He points to the children as constituting the stirps.

But it is argued there can be no division until all his children are dead, and as if predeceasing the testator, and, hence, they can take nothing. In the literal sense this is true, but not so for the testator’s purposes.

The testator did regard his children as recipients of portions of the corpus, because he charged them with advancements made to them in his lifetime, and provided for further advancements to some of them under the fourth clause of the will. So that, when he said, “The children and their issue to take per stirpes and not per capita,” he was in reality recognizing what he had given the children by way of advancements, and these were directed to be deducted from their respective “representative” shares, i. e., the share from which each child received the income in his or her lifetime. t

We are of opinion that it is clear beyond a reasonable doubt that the testator has deviated from an intestate distribution and designated his children as the stirps.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Stewart, P. J.,

text:
    Friend v. Russell.

      Francis H. S. Ede, for plaintiff.

      Orrin E. Boyle (of the Lehigh County Bar), for defendants.
    Jan. 13, 1930.
   Stewart, P. J.,

This is a rule to allow an appeal to be filed nunc pro tunc. An answer was filed and depositions were taken. From them it appears that a summons in assumpsit issued. Hearing was had on Sept. 17, 1929. Both parties appeared. Judgment was rendered the same day in favor of the plaintiff and against the defendants. Defendants immediately gave notice that they would appeal, and the justice immediately prepared the transcript, put it in his basket, and it was ready for the defendants at any time thereafter. The justice testified: “I told him at the time of the hearing that I couldn’t mail a transcript to him; that it would have to be signed by him and by the bondsman.” That is not denied by the defendants. On Saturday, Oct. 5th, eighteen days after the hearing, the justice went to a football game in the afternoon. While he was there one of the defendants appeared at his office to take an appeal. The justice’s wife had a conversation with the defendant and the defendant paid 75 cents for the appeal. The defendant testified that the justice’s wife said that if he paid the money “I will see that you get it” (that is, the transcript). He then asked her to see that he got it by Monday morning, and she answered: “Yes, I will.” There is no doubt that the money was paid and was received by the justice. The justice’s wife was examined as a witness and could not recall exactly what she said to the defendant, but she testified that she received from the defendant his telephone number and his address. The justice testified that when he got home, and on the following Monday, he tried to reach the defendant to inform him about the necessary things to be done for taking an appeal, and could not reach him. The testimony also showed that the wife was in no sense a representative of the justice. As a matter of fact, he employed a stenographer, who attended to the business of his office, and what the wife did was only a matter of accommodation. Under the decisions hereinafter cited, it makes little difference in what capacity the wife was acting, because the decisions hold that she was in no sense the agent of the plaintiff. She was the defendant’s agent, and even if the justice had promised to send the transcript and failed to send it, he would be the defendant’s agent and not the plaintiff’s. The outstanding facts are that the wife was the agent of the defendant, and that the defendant was negligent in not taking his appeal either on Saturday night, when the justice was in his office, or on Monday, when he was also there all day. There is no contention that the defendant called on the justice but once for the taking of an appeal. Each side has submitted excellent briefs, and each side supports its view by citations of decisions of the Courts of Common Pleas. It is impossible to reconcile these decisions, but the decisions of the Superior Court, which are controlling, rule the present application flatly against defendants. In Patterson v. Gallitzin Building & Loan Ass’n, 23 Pa. Superior Ct. 54, the syllabus is: “If, without fault of his, a party desiring to appeal from a judgment of a justice of the peace is prevented from doing so by the act of the latter, an appeal may be allowed nunc pro tunc, if asked for in a reasonable time, but if the court finds on sufficient evidence that the failure to enter the appeal in time was due to the party’s lack of diligence, the appellate court will not interfere.” In Kaumagraph Co. v. Thissen Silk Co., 42 Pa. Superior Ct. 110, the syllabus is: “The neglect of counsel in reading only part of a notice intended to guide attorneys as to the dates of terms, and the placing of a wrongful construction on such reading, will not entitle a defendant, represented by the attorney, to an appeal nunc pro tunc from the judgment of a justice of the peace after the time for appeal has expired.” In Law v. Groves, 47 Pa. Superior Ct. 411, the facts are very similar to the facts of the present case. There the defendant testified that the justice promised to mail the transcript to him, but did not do so. The Superior Court said: “But assuming for a moment that the justice did not keep his promise, this was not the neglect of anything that pertained to the official duty of justices of the peace, but was like the failure of a justice to fulfill his promise to file the transcript, or his promise to deliver it to the appellant’s attorney for filing, each of which excuses has been held insufficient to justify the court in sustaining an appeal entered after the return day: Houk v. Knop, 2 Watts, 72; Sherwood v. McKinney, 5 Wharton, 435.” To the same effect is Kennemuth v. Lewis, 61 Pa. Superior Ct. 251. See, also, Mason v. Stackhouse, 84 Pa. Superior Ct. 288. In Rudy v. Troup, 67 Pa. Superior Ct. 160, the syllabus is: “Where a justice of the peace renders judgment publicly in his office three days after the hearing, the defendant will not be allowed an appeal nunc pro tunc on the ground that the justice had promised to notify him of the judgment and had failed to do so.” See, also, Ambrose v. Laughlin, 81 Pa. Superior Ct. 437. In the last case found, Marcus v. Cohen et al., 94 Pa. Superior Ct. 383, the element of petitioner’s sickness enters into the case and is disposed of by Judge Trexler as follows: “The defendants knew that the judgment had been entered' and presumably knew that the time of appeal was expiring. Although sick and confined to his bed in his home, the appellant could have sent for one of his co-defendants and perfected the appeal, or his attorney or agent could have done it for him.” The same thing applies in this case. The defendants could have secured an attorney, who would have attended to the appeal if either of them was sick. The whole matter is summed up in the end of that case as follows: “Where there is fraud practiced or the defendant is misled by the magistrate, such appeal may be allowed, but there must be fraud or its equivalent. The authorities are reviewed in the above case and the statement is made that the court ‘can no more enlarge the time than he can legislate in any other matter.’ ” In the present case there was no fraud at all. The justice and his wife sought to aid the defendants, and it is a pure ease of negligence on the part of the defendants in not taking their appeal within the statutory period. The present case is decided upon the above decisions, most of which we followed in Matta v. Sacchetti, 11 Northamp. Co. Repr. 210.

We take this occasion to call attention to the fact that petitions of this character should contain the particulars of the defense. We so decided in Kaumagraph Co. v. Thissen Silk Co., 11 Northamp. Co. Repr. 412, and that case has been followed ever since upon that point.

And now, Jan. 13, 1930, rule to show cause why an appeal should not be entered nunc pro tunc is discharged.

From Henry D. Maxwell, Easton, Pa.


author: Rossiter, P. J.,

text:
    Wickersham v. Tubbs et al.

      Wilbur R. Seabrook, for plaintiff; Franklin B. Hosbach, for defendants.
    April 1, 1930.
   Rossiter, P. J.,

This is a rule for judgment for want of a sufficient affidavit of defense.

The first paragraph of plaintiff’s statement of claim is admitted.

The second paragraph of the affidavit of defense avers that the defendant admits that there was a feigned issue in the above entitled case and that there was a bond given to the Commonwealth, but avers and says that he denies that he did not maintain his title to the said goods and chattels in question, and avers and says that the case in the Court of Common Pleas of Erie County, Pennsylvania, at No. 190, May Term, 1926, did not and has not now disposed of the title to the said automobile which was the chattel forming the basis of the suit at No. 190, May Term, 1926.

In our opinion, the taking of a voluntary nonsuit in that case, as alleged in the third paragraph of plaintiff’s statement, and not denied in the affidavit of defense, was a failure to maintain the title of William Tubbs and ended that case, and, therefore, liability attached on the bond.

As to the third paragraph, the defendant says that he denies the allegations therein contained, and in answer thereto avers and says that his title to the automobile in question came from one Ray Tubbs, and avers that his title was not based upon the title of D. A. Wright’s heirs, and he, therefore, avers that neither he nor the other defendants are indebted to the plaintiff.

If this be true, these facts should have been established in the feigned issue, and not having been established there they are unavailabl here as a defense to liability on the bond.

The rule, therefore, taken July 3, 1929, for judgment for want of sufficient affidavit of defense, is now, April 1, 1930, made absolute unless defendant, within fifteen days, files a sufficient affidavit.

Opinion on affidavit of defense in lieu of demurrer.

The statement avers that the suit is ended via, a voluntary nonsuit. This averment is not denied. If, as set forth in the second paragraph of the affidavit of defense in lieu of demurrer, the court ruled that neither William Tubbs nor Ray Tubbs had any title to the automobile, then liability arose on the bond which William Tubbs gave to maintain a title in him, for he could not rely on the title of another.

The demurrer, therefore, should be and it is now, March 31, 1930, overruled.

From Otto Herbst, Brie, Pa.


author: Schaeffer, P. J.,

text:
    Miller v. Stoudt.

      Stevens & Lee and Ralph C. Body, for plaintiff and rule.

      Charles K. Derr and Samuel E. Bertolet, for defendant.
    Dec. 21, 1929.
   Schaeffer, P. J.,

The plaintiff has filed a mechanic’s lien to which the defendants have filed their affidavit of defense. Upon the trial we directed a verdict for the defendants. This action is now before us for review upon plaintiff’s motion for a new trial.

The lien sets forth that the work and labor were furnished in accordance with a certain oral contract entered into between Calvin Miller, as the authorized agent of the defendant, and said John R. Miller.

In order to prove the agency of Calvin Miller, the plaintiff offered in evidence an agreement in writing which was as follows:

“Calvin Miller v. Charles M. Stoudt.

“This contract, made on the 8th day of May, 1928, in the Borough of Strausstown between the aforesaid parties, specifies the following:

“Calvin Miller, contractor, agrees to erect a house for Charles M. Stoudt, at a cost of Six Thousand One Hundred Twenty-five Dollars ($6,126.00); also to furnish all lumber, concrete, fixtures, etc., necessary to complete the building; to place roof on same; to install all the plumbing and heating fixtures; and also to paint the interior and exterior of the house. He also agrees to wire the house and place all switches as ordered.

“Mr. Stoudt agrees to pay all bills as they come in and that Mr. Miller is absolutely free from any obligation on that part; all bills which are paid by Mr. Stoudt shall be deducted from the amount of the contract.”

This contract was signed by Calvin T. Miller and Charles M. Stoudt.

We are of the opinion that there is nothing in this agreement which constituted Calvin T. Miller the agent of the defendants for the purpose of engaging the plaintiff or any one to work upon the building as an independent contractor with power to file a lien for unpaid wages. John R. Miller happens to be a minor son of Calvin T. Miller and was engaged by the latter to work upon the job as a carpenter for the sum of 40 cents per hour. The claim was filed more than three months after the completion of the work, and there is no claim here that John was a sub-contractor. He claims as an independent contractor employed not directly by the defendants, but by his father as the defendant’s agent. In support of the contention of agency, the claimant relies upon the first sentence of the second paragraph of the agreement, to wit, the provision that Mr. Stoudt agreed to pay all bills. This stipulation standing by itself might be susceptible of the construction that Miller was the agent for the man who was to pay the bills; but the entire agreement must be read from its four corners and construed as one instrument. Certainly its purport is that Calvin T. Miller was to erect a complete house for Stoudt for the sum of $6125, and that Stoudt should pay the bills contracted by Miller in so doing, and should hold Miller harmless from claims upon the bills so paid, and that the amounts so paid by Stoudt should be deducted from the contract price in final settlement with Miller. By the contract Miller became an independent contractor and not the agent of Stoudt. The agreement gave unto Miller complete control of the operation; he was free to employ such help or let such sub-contracts as he saw fit in carrying out his agreement. His was the right to control the work; Stoudt reserved no right to interfere with Miller’s employment of particular persons. His only obligation was to pay. And the fact that Miller agreed that a portion of the contract price was to be paid by Stoudt to those whom Miller employed or dealt with cannot be held to have changed the character of Miller’s relation to Stoudt. He was the party who contracted with Stoudt for the erection of the house. He did not thereby become Stoudt’s agent or alter ego; in employing workmen he acted for himself, not for Stoudt. “The employment of a contractor or jobber to do a particular piece of work does not render him an agent nor authorize him to pledge the credit of his employer:” Wayne v. Johnson, 1 Phila. 563. Of course, it may be possible to draw a contract in which one of the parties may be an independent contractor as to certain matters and the agent of his employer in other matters; but the contract before us is clearly insufficient to establish the agency of Miller.

It is not contended that the claimant can sustain his lien as a journeyman workman, in which capacity he really worked. For the inability of a journeyman workman to file a lien under the Act of June 4, 1901, P. L. 431, has been clearly set forth in Dunkelberger v. The Narrow Fabric Co., Inc., 7 Berks Co. L. J. 175.

And now, to wit, Dec. 21, 1929, the rule for a new trial is discharged.


author: Gordon, Jr., J.,

text:
    City of Philadelphia v. Myers.

      Mayne R. Longstreth, Assistant City Solicitor, and Augustus Trask Ash-ton, City Solicitor, for plaintiff.

      Alexander Meigs Haig and Michael Francis Doyle, for defendant.
    June 17, 1930.
   Gordon, Jr., J.,

This is a rule to show cause why a lien for taxes should not he stricken from the record and a sheriff’s sale thereunder stayed. The case is before us upon petition and answer, in which the following material and controlling facts appear: By the Acts of Congress of May 16, 1918, ch. 74, 40 Stat. at L. 550, and of June 4, 1918, ch. 92, 40 Stat. at L. 594, the Federal Government purchased land in the City of Philadelphia, Pennsylvania, for certain war purposes and created the United States Housing Corporation of Pennsylvania, in which, for governmental administrative purposes, title to the land purchased was vested. This land was divided into building lots, on which houses were erected to be used by persons engaged in war activities. After the conclusion of the war, Congress, by the Acts of July 11, 1919, ch. 6, 41 Stat. at L. 35, and of July 19, 1919, ch. 24, 41 Stat. at L. 163, authorized and directed the Housing Corporation to sell the properties, and by the last mentioned act authorized sales to be made upon credit, provided “that no sale or conveyance shall be made hereunder on credit without reserving a first lien on such property for the unpaid purchase money.” On Nov. 1, 1920, the Housing Corporation sold the premises here involved, No. 2739 South Tenth Street, to the defendant, under a contract of sale in which payment was required to be made by the purchaser in monthly instalments covering a period of approximately fifteen years. The contract also provided that “When said bonds and $20 [being 10 per cent, of the purchase price] of said principal has been thus paid, the seller agrees to execute and deliver to the said purchaser a good and sufficient special warranty deed for said property free from all encumbrances except as herein mentioned, and the purchaser agrees to execute and deliver to said seller a note or notes with, a good and sufficient mortgage or trust deed for such property to secure payment of the balance of the purchase price in accordance with the terms of this contract.” By this method the Housing Corporation carried out the requirements of the proviso quoted above and reserved, after the delivery of the deed to the purchaser, a first lien on the property for the protection of the Federal Government. The purchaser has been in possession of the property since Nov. 1, 1920, the date of the contract, and, although 10 per cent, of the purchase money was actually paid at or about the time the contract was signed, the latter provision has not been performed, and the Housing Corporation and the purchaser have never formally completed the transaction by exchanging the deed and mortgage.

The city having assessed the property in question for taxation each year after the date of the contract, filed its lien for the tax due in 1926, to which this proceeding relates, and recited in the lien that “All estate, title and interest of the United States Housing Corporation and of the United States of America, if any, is excepted from this lien.” Later, a sdre facias was issued on the lien, which was personally served upon the defendant as real owner, although he has failed to register his title. No defense was made to the sdre facias by the defendant, and judgment was duly entered thereon. A writ of levari facias was then issued and the sheriff’s sale advertised. The advertisement recited the lien and gave notice that the property was to be sold subject to the interest therein of the United States. The defendant then obtained the rule now before us to show cause why the lien should not be stricken off and the sale stayed.

The defendant contends that his property is not taxable, invoking the general doctrine that property of the Federal Government is not taxable by a state or its municipal agencies, since the legal title to it is still in the Housing Corporation, notwithstanding under the contract of sale he has a right to demand and to receive a conveyance of the title upon delivery of a purchase-money mortgage for the balance due and under the admissions of the pleadings the Housing Corporation is ready and willing to make the conveyance. The argument advanced by the defendant in support of this contention is that, since the legal title is not in him, he has only an equitable title, which is not subject to taxation. It may be conceded that an equitable interest, as such, is not taxable. Where, however, a real ownership is concealed under the guise of an equitable interest, equity, which the courts administer under common law forms, will look through the form of the transaction to see and reach the substance of the situation. This being so, it is evident that the defendant is seeking to evade taxation of his property by neglecting or refusing, for a very transparent reason, to accept the formal transfer of the property to which he has for many years been entitled. It would work a wrong and injustice to the state and to other taxpaying citizens-to permit an owner whose property is rightly taxable to resort to such a subterfuge to escape liability for his just taxes. The equities of the case are, therefore, all in favor of the city, and it remains to be considered only whether, notwithstanding those equities, there is any insuperable obstacle in law or precedent to sustaining the tax.

The principal case upon which the defendant relies in support of his contention that his property is not taxable is Mint Realty Co. v. Philadelphia, 218 Pa. 104, in which, under superficially similar but fundamentally distinguishable facts, the site of the old mint of Philadelphia was held not to be taxable so long as title remained in the Federal Government, which had sold it to the plaintiff in that case. There, as here, the plaintiff purchased the land from the Government under a contract calling for instalment payments, and in that respect the case is similar to the one before us. The distinguishable feature of the case lies, however, in the fact that there the contract of sale provided that title should not be given until the last payment was made, while in the present case the Government agreed, and has long stood ready, to convey the legal title to the plaintiff. The case relied on does not, therefore, control the question on the facts before us.

The objection that the tax under consideration is invalid because it is a taxing of property of the Federal Government is one which this defendant sets up only derivatively because of the cloud which would rest upon his title if a sale were had under an illegal tax. The primary person to raise such an objection is the Federal Government, through the Housing Corporation, whose interest alone is exempt from taxation, and it evidently considers its interests safe, for it is not appearing to contest the validity of the tax. But even if it did object to the tax upon the ground advanced by the defendant, the objection would be without merit, as this very question was passed upon by the Supreme Court of the United States in the case of City of New Brunswick et al. v. United States of America and United States Housing Corp., reported in 276 U. S. 547. In that case the United States Housing Corporation sold a lot of land owned by it in the City of New Brunswick, New Jersey, under the same circumstances and by the same congressional authority that the Housing Corporation sold to the defendant in the present case. The contract of sale contained the identical provisions for the delivery of title and the taking back of a purchase-money mortgage, upon the payment of 10 per cent, of the purchase price, that were contained in this defendant’s contract, and the City of New Brunswick attempted to levy a tax upon the property so sold after the 10 per cent, had been paid and before the deed and mortgage had been exchanged. The same question arose, therefore, in that case as is presented here. The United States Circuit Court of Appeals entered a decree enjoining the City of New Brunswick from collecting the tax assessed, and the Supreme Court of the United States reversed that decision, holding that, so long as the interests of the Federal Government were expressly excluded from the tax sale and the sale was, by express terms, made subject to all such prior interests, there was nothing in the Federal law to prevent levying the tax. The reasoning by which the Supreme Court reached this conclusion is illuminating upon the question before us and emphasizes the distinction we have drawn between the sale in the Mint Realty Company case, supra, and sales by the Housing Corporation under a contract similar to the one used in this case. In rendering the court’s opinion, Mr. Justice Sanford said:

“It is unquestioned that so long as the corporation held title to the lots as an instrumentality of the United States and solely for its use and benefit, they were not subject to taxation by the city: Clallam County v. United States, 263 U. S. 341, 344. But after the purchasers had made the payments entitling them to receive deeds to the lots, the corporation ceased to hold title solely for the United States and held partly for the purchasers, who had become the equitable owners of the property and entitled to conveyance of the title subject to their obligation to execute mortgages securing the payment of the balance of the purchase price. In equity the situation was then the same as if the corporation had conveyed title to the purchasers, as owners, and they had mortgaged the lots to the corporation to secure the unpaid purchase money. As between the corporation and the city, the taxability of the lots is to be determined as if both the deeds and the mortgages had been executed; that is, as if the corporation, while conveying the legal title to the purchasers, had retained a mortgage lien to secure the balance of the purchase price.

“By the specific provision of the Act of 1919, the corporation was not authorized to convey the property ‘without reserving a first lien . . . for the unpaid purchase money;’ and the contracts of sale could not waive, and did not purport to waive, this lien or subordinate it to taxes.

“Under the provisions of the New Jersey law, the taxes assessed to the purchasers, as equitable owners, rest upon the entire lots, including not only the interests of the purchasers as equitable owners but the interest of the corporation retained and held as security for the payment of the unpaid purchase moneys; no distinction being made under that law between the interest of-the owners and that of mortgagees or lienors. We see no reason, however, if the New Jersey law permits, why the city may not assess taxes against the purchasers upon the entire value of the lots and enforce collection thereof by sale of their interests in the property. With that the corporation and the United States have no concern. But it is plain, under the doctrine of the Clallam case, that the city is without authority to enforce the collection of the taxes thus assessed against the purchasers by a sale of the interest in the lots which was retained and held by the corporation as security for the payment of the unpaid purchase money, whether as an incident to the retention of the legal title or as a reserved lien or as a contract right to mortgages. That interest, being held by the corporation for the benefit of the United States, is paramount to the taxing power of the state and cannot be subjected by the city to sale for taxes.

“We conclude that, although the city should not be enjoined from collecting the taxes assessed to the purchasers by sales of their interests in the lots, as equitable owners, it should be enjoined from selling the lots for the collection of such taxes unless all rights, liens and interests in the lots, retained and held by the corporation as security for the unpaid purchase moneys, are expressly excluded from such sales, and they are made, by express terms, subject to all such prior rights, liens and interests. This, we think, will meet the equities of the case as between the corporation and the city, and fully protect the paramount right of the United States.”

This case thus definitely decides that, provided the state law permits the tax, the retention by the Housing Corporation of title to property formerly belonging to the United States after the time for delivery of title has equitably passed does not prevent taxation by the state of the purchaser’s interest therein.

This brings us to a consideration of the only remaining question in the case — Whether the state law permits taxation of property in the present situation. In considering that question, what we have already said respecting the equities of the case should be borne in mind, for since there can be no objection to the tax from the standpoint of the interest of the Federal Government, the right of the defendant to object to it is, of necessity, profoundly affected by his equity. As was said by Mr. Justice Sanford in the case just quoted, in equity the situation is “the same as if the corporation had conveyed title to the purchasers as owners, and they had mortgaged the lots to the corporation to secure the unpaid purchase money.” This being so, equity will consider that done which should have been done; it will consider, as regards this defendant, that the title is in him, and will look upon the Housing Corporation as the holder of the prior purchase-money mortgage which it agreed to take for the balance due. Viewed in this light, it is clear that the property is taxable. The interest of the Federal Government in such a mortgage cannot be affected by the sale, for it is well settled that a prior mortgage is not discharged by a sale for taxes: Cadmus v. Jackson, 52 Pa. 295; Act of June 4, 1901, § 32, P. L. 364, 375; reenacted by the Act of May 16, 1923, P. L. 207, 222. The security which the Federal Government retains will not, therefore, be lost to it by a sale for taxes, for the purchaser will take, under the lien and the express terms of the sale, a complete title, subject only to the lien of the Federal Government for the unpaid purchase money.

In conclusion, one other objection to the lien advanced by the defendant may be considered. That is, that the Housing Corporation, which is the registered owner, was neither named in the lien filed nor served with process. This objection is without merit. The act relating to the registration of titles was passed for the benefit of owners, who, before the act, were subject to the serious risk of losing their property by tax sales held without notice to them. Where, however, the real owner omits to register his title, he takes the risk which his own omission creates, and will not be heard to object to a sale of his own property on the ground that, although he himself was served with notice of the proceeding and of the sale thereunder, some one else who was not the real owner had not been served.

We, therefore, conclude that the lien filed against the defendant’s property by the City of Philadelphia for the year 1926 is valid, and that the proposed sale thereunder is lawful. Accordingly, the rule to strike off the lien and stay the sheriff’s sale is discharged.


author: Van Dusen, J.,

text:
    Culbertson’s Estate.

      William J. Brady and Henry D. O’Connor, for the proponent.

      Bernard J. O’Connell and Nathan Griffith, for the contestants.
    Oct. 3, 1930.
   Van Dusen, J.,

The Presiding Judge is the one to determine questions of fact, and we all agree with him in his disposition of the case.

The new evidence does not tend to prove that the writing in question is decedent’s will. This writing was signed by mark, and it was all demonstrably in the handwriting of the alleged forger, who, however, alleged that the signatures of the witnesses were genuine. The validity of the will depended on these signatures. These witnesses were dead when the will was proved before the Register, and the witnesses who proved their signatures before the Register were dead at the time of the hearing in this court. No other witnesses were called to prove the signatures of the original witnesses. The Presiding Judge found on a comparison with genuine signatures that one of the signatures of the witnesses to the will was false. The will thus falls without any resort to the testimony of Augustus Culbertson, the forger.

His story was, however, corroborated in a great number of particulars which are detailed in the prior opinions, and none of which are affected by the new evidence. Exhibit 1-a does not corroborate him, for he might have made it at any time as well as at the time he wrote the will. If Augustus did not write it at all, then his statement that he did may be the result of inadvertence, or of the exuberance of a penitent eager to make his confession convincing as well as complete, or it may be a plain lie. The conclusion from this is that his character and situation were such that his story was not to be accepted without corroboration, which the contestants have always conceded. But that corroboration remains as it was before, and was abundant; and so fortified, the testimony of Augustus gives the explanation and circumstances of what was demonstrated without him, namely, that the will was false.

The exceptions to the opinion of the presiding judge dated June 9, 1930, are dismissed, and his decree dated Nov. 14, 1929 [13 D. & C. 171], sustaining the appeal and revoking letters testamentary is reaffirmed and all exceptions filed thereto are dismissed. In accordance with the mandate of the Supreme Court, the clerk is now directed to return the record to the Supreme Court for its further action.

Lamorelue, P. J., did not sit.


text:
    White v. Ehrens.

      Stevens & Lee, for petitioner.

      Emanuel Weiss, for Hannah White, tenant in possession.
    March 22, 1930.
   Schaeffer, P. J.,

This matter is before us upon petition and answer under the Act of April 20, 1905, P. L. 239. The petitioner avers that he is a purchaser of property No. 311 North Fourth Street, in the City of Reading, at sheriff’s sale which was had on a writ of fi. fa., issued upon a judgment entered Dee. 1, 1927. The citation was awarded against Hannah White, the party in possession. Hannah White has filed an answer, in which she sets forth that she is in possession of the property under a lease in writing from Herman J. Ehrens and Rose Ehrens for the term of five years from Oct. 1, 1927.

It is admitted that the property in question at the date of the sheriff’s sale was subject to the following liens:

1. Mortgage dated May 22, 1923, to the Berks County Trust Company for $7500.

2. Judgment entered Nov. 3, 1924, in favor of the Reading National Bank for $900.

3. Mortgage dated Aug. 27, 1927, to the First National Bank of Bangor, Pa., for $8000.

4. Judgment entered Dec. 1, 1927, in favor of Herman J. White for $976.50.

It is upon this last judgment that the execution was had and the property sold to the petitioner.

The respondent contends that, as the term of her lease began before the date of the entry of the judgment upon which the property was sold by the sheriff, the purchaser’s title is subject to her lease. In support of this position she relies upon the 14th section of said Act of April 20, 1905, P. L. 239, which is as follows:

• “The right of possession of a tenant for years shall be deemed paramount to that of a purchaser at a judicial sale if, and only if, the letting to him shall precede in point of date the entry of the judgment, order or decree on which such sale was had, and also shall precede the recording or registering of the mortgage, deed or will, if any, through which by legal proceedings the purchaser derives title, unless the letting is made with actual notice to such tenant of the contemplated entry of such judgment, order or decree, or of the fact of the execution of such mortgage, deed or other instrument of writing, and with intent to avoid the effect thereof.”

The petitioner does not contend that a literal construction of that section does not support the respondent’s claim, but the petitioner points out that the sheriff’s sale divested the Reading National Bank’s judgment and also the second mortgage held by the First National Bank of Bangor, and claims that a construction of the Act of 1905 which would support the lease against him would be unreasonable and unjust and would result in depriving the second mortgagee of the security which was his at the time the mortgage was entered.

It is clear that under the Act of May 8, 1901, P. L. 141, which amends section 1 of the Act of May 19, 1893, P. L. 108, the judgment and mortgage were discharged by the sheriff’s sale under the subsequent judgment. Under the provisions of that act only the first mortgage remained a lien against the property after the sheriff’s sale. That act provides: “When the lien of a mortgage upon real estate is or shall be prior to all other liens upon the same property, except other mortgages, ground rents, and purchase money due the Commonwealth and except taxes, &c., . . . the lien of such mortgage shall not be destroyed or in any wise affected by any judicial or other sale whatsoever. . . .”

Neither side has submitted any decisions which decide the issue now before us, nor have we after diligent search found any. We can see the force of the petitioner’s argument. But petitioner here is pursuing a specific remedy given to him by the Act of 1905, and the 14th section of that act clearly provides that the tenant’s right of possession is paramount to that of the purchaser at the sheriff’s sale. In other words, one section of the act denies to the petitioner in this case the right which he seeks. If a purchaser at sheriff’s sale, of property sold under a junior lien which was entered after the beginning of the term of the tenant in possession, is to be entitled to possession in preference to such tenant on the ground that liens which antedated the entry of the judgment were discharged by sale, his remedy cannot be based upon the Act of 1905, but must be found elsewhere. It may be true that the legislature in enacting the Act of 1905 did not have in mind the situation now before us. But, in view of the clear statement in the 14th section, we are of the opinion that it would be judicial legislation to construe the act so as to give to the petitioner in this proceeding the result which he seeks.

And now, to wit, March 22, 1930, the petition is dismissed, at the cost of the petitioner. Prom Charles K. Derr, Reading, Pa.