author: Stewart, P. J.,

text:
    Ray v. Ray.

      Constitutional law — Judgments — “Full faith and credit” clause of the Constitution of the United States — Divorce—Service — Publication — Desertion — Estoppel—Mistake of law.

    1. Where a wife, deserted by her husband in Missouri, having established a residence in Illinois, obtained a divorce in that state after service on her husband by publication only in accordance with the Illinois statute conferring jurisdiction in such cases on the Illinois courts, analogous to the Pennsylvania Act of May 9, 1913, P. L. 191, such decree is valid in Pennsylvania as against a resident of this State who married her in Illinois and subsequently resided with her in Pennsylvania.
    2. The law of the place of the actual tona fide domicile of the parties gives jurisdiction to the proper courts to decree a divorce for any cause allowed by the local laws without reference to the law of the place of the original marriage.
    3. Under the present legislation in force in Pennsylvania relating to divorce, the courts of this State have jurisdiction over any cause for divorce originating in any other state or foreign country, although the respondent has been served with the subpcena by publication only.
    4. A wife has a right to establish a separate domicile from that of her husband where his conduct entitles her to have the marriage dissolved.
    5. The validity of the marriage between persons swi juris is to be decided by the law of the place where it is celebrated. Exceptions to this rule are (1) where the marriage is incestuous, and (2) where a state by statute prohibits one of its subjects or a class of such subjects to contract matrimony.
    6. Where a man marries a woman in Illinois, knowing that she was divorced in that state, and subsequently conveys real estate in Pennsylvania to her, he is estopped from asserting the invalidity of the divorce as a ground for the recovery of his property.
    7. Ignorance or mistake of law with full knowledge of the facts is not ground for equitable relief.
    Exceptions to adjudication. C. P. Northampton Co., Feb. T., 1927, No. 1, in Equity.
    The defendant, Nora D. Ray, married one Jones in the State of Washington, after which they resided in the State of Missouri as man and wife. Jones deserted his wife in Missouri and removed to Arkansas. Afterwards, she left Missouri and went to Illinois, where, having obtained a legal residence, she began proceedings in divorce against her husband on the ground of desertion in Missouri. The State of Illinois, at that time, had a statute in force precisely similar to the Pennsylvania statute of May 9, 1913, P. L. 191, conferring upon its courts jurisdiction analogous to that conferred upon the Pennsylvania courts by the Act of 1913. Service upon Jones was obtained by publication only. The Illinois court granted a divorce a. v. m.

    She subsequently married Joseph L. Ray, the plaintiff, a citizen and resident of Pennsylvania, in Illinois, and resided .with him as his wife at Bethlehem, Pennsylvania. Some time thereafter, Ray, learning that the divorce had been granted without personal service upon Jones, began proceedings in Pennsylvania to annul the marriage and filed this bill in equity to obtain a reconveyance of certain real estate in Northampton County, which he had conveyed to her and which they held as tenants by entireties, upon the ground that, at the time of her marriage to him, she was the legal wife of Jones, inasmuch as the Illinois courts had no jurisdiction in the matter by reason of the absence of personal service, and such divorce could not be recognized outside the boundaries of the State of Illinois.

      T. McKean Chidsey (with him Kirkpatrick, Maxwell & Chidsey), for complainant.

      Raymond Pace Alexander (with him Maceo W. Hubbard and J. Cullen Ganey), contra.

      April 2, 1928.
   Stewart, P. J.,

This case was thoroughly argued by counsel, and each member of the court subsequently has given his best thought to the questions involved. The facts are not really in dispute, and we adopt the statement of them contained in the opinion of the trial judge as correct. The amount involved is large, and the question seems to us not to have been decided in Pennsylvania, although many Pennsylvania cases were cited upon the argument, as well as numerous decisions of the Supreme Court of the United States and the highest courts of other states. We shall not attempt to reconcile the latter cases. As to the decisions of the Supreme Court of the United States, it is sufficient to refer to the case of Thompson v. Thompson, 226 U. S. 551. The third syllabus of that case is: “The courts of the state which is the domicile of the husband, and the only matrimonial domicile, have jurisdiction to render a decree of divorce in his favor entitled, under U. S. Const., art. iv, § 1, and U. S. Rev. Stat., § 905, U. S. Comp. Stat., 1901, page 677, to full faith and credit in the courts of the District of Columbia, although the wife has left the jurisdiction and can only be served by publication.” In the opinion, Mr. Justice Pitney said: “But it is established that the full faith and credit clause, and the statutes enacted thereunder, do not apply to judgments rendered by a court having no jurisdiction of the parties or subject-matter, or of the res in proceedings in rem. . . . The subject, in its relation to actions for divorce, has been most exhaustively considered by this court in two recent cases: Atherton v. Atherton, 181 U. S. 155, 45 L. Ed. 794, 21 U. S. Sup. Ct. Rep. 544; Haddock v. Haddock, 201 U. S. 562, 50 L. Ed. 867, 26 U. S. Sup. Ct. Rep. 525, 5 Ann. Cas. 1. In the Atherton case the matrimonial domicile was in Kentucky, which was also the domicile of the husband. The wife left him there and returned to the home of her mother in the State of New York. He began suit in Kentucky for a divorce a vinculo matrimonii because of her abandonment, which was a cause of divorce by the laws of Kentucky, and took such proceedings to give her notice as the laws of that state required, which included mailing of notice to the post-office nearest her residence in New York. No response or appearance having been made by her, the Kentucky court proceeded to take evidence and grant to the husband an absolute decree of divorce. It was held that this decree was entitled to full faith and credit in the courts of New York. In the Haddock case, the husband and wife were domiciled in New York, and the husband left her there and, after some years, acquired a domicile in Connecticut, and obtained in that state, and in accordance with its laws, a judgment of divorce based upon constructive, and not actual, service of process on the wife, she having meanwhile retained her domicile in New York and having made no appearance in the action. The wife afterwards sued for divorce in New York and obtained personal service in that state upon the husband. The New York court refused to give credit to the Connecticut judgment, and this court held that there was no violation of the full faith and credit clause in the refusal, and this because there was not at any time a matrimonial domicile in the State of Connecticut, and, therefore, the res — the marriage status — was not within the sweep of the judicial power of that state.” Thompson v. Thompson really depended upon the decision as to whether the divorce proceedings were regular, a question not raised in the present case. In this ease the plaintiff contends that the defendant is not his wife; that she is the wife of Jones; although, prior to her marriage to the plaintiff, she had a divorce which had been legally granted to her in Illinois under a law that is precisely similar to the Pennsylvania statute of May 9, 1913, P. L. 191, and although she had been legally married in Illinois, the state which granted the divorce. It is conceded that that marriage in Illinois was not bigamous, nor was it bigamous in Missouri: Anthony v. Rice, 110 Mo. 223. Notwithstanding the plain terms of our statute of 1913, which is like the Illinois statute, it is contended that, under the authorities, the Illinois marriage is bigamous in Pennsylvania. Can it be contended that if Mrs. Jones came into Pennsylvania and, after living here a year, had secured a divorce from Mr. Jones under our Act of 1913, and she and Mr. Ray had then married in Pennsylvania, her marriage would be void or even voidable? Would any Pennsylvania court set aside its decree of divorce if Jones appeared and admitted that the Act of 1913 had been complied with, but averred that he had no notice of the Pennsylvania divorce proceedings? Assuredly the divorce would not be set aside. Could it be pretended that if a criminal prosecution for bigamy had been commenced against Mrs. Ray, that any court in Pennsylvania would allow her to be convicted? If these positions are correct, does the fact that the divorce and the marriage were in Illinois make any difference in Pennsylvania?

Plaintiff’s contention is that the Illinois decree is absolutely void in Pennsylvania because the cause of divorce, usually called the res, arose in Missouri and because Jones had no personal service in the Illinois case, and did not appear in that proceeding. He relies on the leading case of Colvin v. Reed, 55 Pa. 375, and the cases which have followed it. The syllabus of that case is: “Taylor, residing in Pennsylvania, conveyed to Colvin, his wife not joining in the deed; Colvin gave a bond for part of the purchase money payable when the wife’s interest in the land should be discharged. Taylor became a citizen of Iowa, his wife still residing in Pennsylvania, procured a divorce in Iowa and died, his wife surviving him, she not having released her interest. Held, that there could be no recovery on the bond. In the question of jurisdiction there is no difference between the interstate and a foreign relation. The unity of person created by marriage is a legal fiction, to be followed for all useful and just purposes, but not to destroy the rights of either contrary to the. principles of natural justice in proceedings which, from their nature, make them opposite parties. Mutual consent was required to establish the relation, and the husband and wife should be viewed in their separate natural condition, where one proceeds against the other to destroy the relation. As to a dissolution of marriage, each has a right to be heard as a natural person. The law of the place of the actual bona fide domicile of the parties gives jurisdiction to the proper courts to decree a divorce for any cause allowed by the local laws without reference to the law of the place of the original marriage. The law of domicile implies that it is the actual domicile of both parties or was when the offending party left it. Where the injured party seeks a new domicile and the domiciles are, therefore, actually different, there is no greater reason why the husband’s new domicile should prevail over the wife’s than hers over his. Neither should draw the other within a foreign jurisdiction. Nothing but the possession of the person of the wife before or at the time of the proceeding can warrant another state to subject her to its jurisdiction. By marriage, the wife residing in Pennsylvania has claims upon her husband’s property here, and our laws have claims to apply it to her support as one of its married citizens. The husband had his remedy in Pennsylvania. In seeking a new domicile, he abandoned this right, and he cannot complain that he is deprived of the full effect of the decree of another state because he could not procure service upon his wife there.” The opinion of Mr. Justice Agnew is a splendid discussion of the principles applicable to the facts of that case. They are, briefly, that the parties were married in 1857. The divorce decree was entered in Iowa. Mrs. Taylor had always been a resident of Pennsylvania. The res took place in Pennsylvania. Those facts are entirely different from the facts in the present case. The court in that case relied upon a number of well-considered cases, one of which is Dorsey v. Dorsey, 7 Watts, 349. Mr. Chief Justice Gibson, in a well-considered opinion in that case, held that a wife, who was a resident of Pennsylvania at the time of marriage, who moved with her husband to Ohio, where her husband deserted her, when the wife returned to her original home in Pennsylvania — that, under such circumstances, she never could get a divorce. The substance of the decision was that where the res arose in another state, parties would have to go to that state to get a divorce. The same learned Justice wrote the opinion in M’Dermott’s Appeal, 8 W. & S. 251. In that case, the desertion occurred in Ireland. The wife followed her husband to Pennsylvania. She commenced an action for divorce. Her husband demurred, setting out in his amended demurrer that the desertion occurred in Ireland. The lower court overruled the demurrer and granted the divorce and directed that alimony should be paid. The second assignment of error was, “The court had no jurisdiction, as the alleged cause of divorce occurred out of the State of Pennsylvania.” The Supreme Court affirmed the lower court, entirely overlooking the question of jurisdiction, and put the decision on the ground that Pennsylvania was interested in the support of the wife. In Hollister v. Hollister, 6 Pa. 449, the husband and wife resided in Pennsylvania. They moved to Ohio. The wife then returned to Pennsylvania, but the husband remained in Ohio. She presented an application for divorce on the ground of cruel and barbarous treatment, which had taken place in Pennsylvania prior to the removal to Ohio. The Supreme Court said [page 451] : “Did, then, the removal of the traversee to the State of Ohio, and his residence there, since the autumn of 1841, oust the jurisdiction of the Pennsylvania courts? By the common law, the domicile of the wife follows that of her husband. Wherever his home is, there also is hers. In the nuptial contract she virtually says to him, 'thy country shall be my country, and thy home shall be mine.’ This point was ruled in Greene v. Greene, 11 Pickering, 410. If, therefore, the domicile of Hollister was in the State of Ohio, which was but feebly contested, and seems fully established by the evidence, the libellant was not entitled to a divorce in the courts of this State, under the provision of the Act of March 13, 1815, the 11th section of which enacts that no person shall be entitled to a divorce from the bonds of matrimony who is not a citizen of this State, and who shall not have resided therein one full year before filing his or her petition. But the Act of April 18, 1843, P. L. 340, kindly comes to the aid of the libellant, and provides ‘that the word citizen, used in the 11th section of the Act of 1815, shall not be construed to apply to any woman who shall have had a bona fide residence in this State at least one year previous to filing her petition.’ The general policy of this last act is not for me to question. But whatever its operation may be in the main, its effect in the case before us is not only opportune but beneficent.” Thus, the curative effect of an act of the legislature was held to apply. In Bishop v. Bishop, 30 Pa. 412, the syllabus is: “Our courts have no jurisdiction to decree a divorce on the ground of desertion where the marriage and alleged desertion took place in a foreign country and the defendant never was within the jurisdiction. The Actiof April 26, 1850, P. L. 591, giving jurisdiction on the ground of desertion, where the parties at the time of the occurrence were domiciled in any other state, applies only to parties who were so domiciled in some other of the United States.” That case shows that the courts recognize the difference that the Act of 1850 had made in the law, but they construed the act very strictly, and held that a desertion in England was not to be considered within the terms of the act which applied only to the states of the Union. We have cited the above cases to show that the reasons which underlie well-considered cases like Dorsey v. Dorsey, supra, can be swept away by acts of the legislature. In 1850, by the Act of April 26, 1850, P. L. 591, the courts were given jurisdiction where the res arose in another state, when the ground of the application was desertion or adultery. By the Act of March 9, 1855, P. L. 68, the courts of this State were given jurisdiction where the res arose in another state and the ground of the application was personal abuse or such conduct as rendered the condition of the other party intolerable and life burdensome. By the Act of June 20, 1893, P. L. 471, the courts of this State were given jurisdiction where the res arose in a foreign country, and by the provisions of that act, where personal service could not be had, service could be made by publication. By the Act of April 28, 1903, P. L. 326, the courts of this State were given jurisdiction where the res arose either in a foreign country or in a state or territory of the United States. The grounds were extended by this act. By the Act of May 1, 1909, P. L. 374, the courts of this state were given jurisdiction where there was a conviction for an offense which took place either within or without the State. By the Act of April 13, 1911, P. L. 60, the courts of this State were given jurisdiction where the res took place out of the State, and it was extended to meet all the causes of divorce that we have in Pennsylvania. Finally, by the Act of May 9, 1913, P. L. 191, the legislature passed the following act: “The several Courts of Common Pleas shall have jurisdiction in any action in divorce, for any cause now or hereafter allowed by law, notwithstanding the fact that the marriage of the parties and the cause for divorce occurred outside of this Commonwealth, and that both parties were at the time of the occurrence of said cause domiciled without this Commonwealth, and that the respondent has been served with the subpoena only by publication as required by law.” It will thus be seen that not only have we gotten away from the idea so strenuously insisted on in the early cases, that the res must be in this State and that the domicile of the respondent must be that of the wife, but the courts no longer insist on personal service. Let us look at the question of domicile: In one of the late cases, Hilyard v. Hilyard, 87 Pa. Superior Ct. 1, the syllabus is: “The divorce laws of Pennsylvania recognize that the husband and wife may have separate and distinct residences; that the residence of the husband does not determine that of the wife so as to govern her right to a divorce, and that a person who has acquired a bona fide residence in this State, and actually resides here for a year, may bring his or her action in divorce, though the offending spouse never resided within the Commonwealth and the cause of action arose out of it.” In Reed v. Reed, 30 Pa. Superior Ct. 229, Judge Orlady said (page 236) : “Our laws recognize the right of a wife to establish a domicile separate from that of her husband, when his conduct entitles her to have the marriage dissolved, and this without a judicial determination of the question. It is the only door open for her escape.” In Starr v. Starr, 78 Pa. Superior Ct. 579, the court quoted with approval as follows: “ ‘In considering the legal relation of husband and wife, it is well to remember, however, that in recent times the law has undergone many changes. The trite saying that ‘a husband and wife are one, and the husband is that one,’ has to-day very little foundation in law and certainly less foundation in fact. By an almost generality of statutes throughout the states of the Union, the wife may contract, receive and convey property, sue and be sued, just as though unmarried; she may, also, keep her earnings and sue for them in her own name. In some states she may even contract with her husband and prosecute actions against him. Aside from this, it is well settled that a wife has not only the actual, but also the legal, right to establish a separate domeile when ill-treated by her husband. The man is lord of the domus only so long as he rules lawfully. When the husband forfeits his right to preside over the home by reason of misconduct, then the wife acquires a legal right to have, and to maintain, a separate domicile. In other words, the husband’s headship over the matrimonial domicile ceases when he violates the marriage laws, and the wife is no longer required to live with or accompany him — even in theory. Under such circumstances, the law of the domicile acquired by the wronged wife will determine her marital status. Of course, to acquire a separate domeile, the wife must intend to abandon her husband’s home and set up an independent home of her own.’ ” There is, therefore, nothing in the Pennsylvania law that would subject Mrs. Ray to the slightest criticism for changing her domicile from Missouri to Illinois after her husband had deserted her. She had a perfect right to* do so. It is contended, however, that, admitting that Mrs. Ray might have obtained a divorce in Pennsylvania, although her husband, Jones, had not personal service, yet, nevertheless, Colvin v. Reed, supra, must rule this case. That case was followed in Reel v. Elder, 62 Pa. 308. In that case the husband left Pennsylvania two weeks after he had married his wife in 1841. He went to Tennessee. He divorced his wife in 1849 in Tennessee. His wife never was out of the State of Pennsylvania and had no notice of the divorce proceedings. The husband owned real estate in Pennsylvania and died. It was held that his wife was entitled to dower and that the divorce was ineffectual as to her. In Fyock’s Estate, 135 Pa. 522, the parties were married and lived in Pennsylvania. The husband moved to Nebraska and divorced his wife there without any personal service on her. Following Colvin v. Reed, it was held that that divorce did not prevent her administering on his estate. The same facts were present in Heins’s Estate, 22 Pa. Superior Ct. 31. In Grossman’s Estate, reported in 67 Pa. Superior Ct. 367, and affirmed by the Supreme Court in 263 Pa. 139, on Judge Henderson’s opinion, the parties lived in Pennsylvania, where they were married. The husband went to Nevada and obtained a divorce without any service on his wife. Afterwards, he returned to Pennsylvania and married another woman. It was held that the second wife was not entitled to claim a widow’s exemption; that the first wife would have had it if she had not agreed to articles of separation. In Duncan v. Duncan, 265 Pa. 464, the parties were married in this State. They moved to Buffalo, where the husband deserted his wife. The husband then returned to Pennsylvania and his wife also. Subsequently he went to Nevada and obtained a divorce. It was held that that divorce did not deprive his wife of the right to support under the Act of May 23, 1907, and its supplements. In Com. v. MacMaster, 88 Pa. Superior Ct. 37, the parties lived in Pennsylvania. The husband went to Mexico and obtained a divorce. He afterwards returned to Pennsylvania, and the wife commenced proceedings to compel support. The court held that the Mexico divorce was null and void. There may be other cases where Colvin v. Reed was followed, but in all the cases that have been cited to us, or that we have been able to find, where the doctrine of that case was applied, the facts were that the party against whom the foreign divorce was attempted to be used was a resident of Pennsylvania, except the case of Platt’s Appeal, 80 Pa. 501. In that case the facts were as follows: The parties were residents of New York and were married there.

They moved to Ohio, where they separated. The husband came to Philadelphia. The wife went to Wisconsin. The husband went to Michigan and secured a divorce against his wife for the desertion which had occurred in Ohio. There was no personal service on the wife. The divorce was granted and the husband returned to Philadelphia and died there. The wife went to Michigan and commenced proceedings to set aside the divorce. Her husband’s death occurred while those proceedings were pending. It also appeared that in Philadelphia he lived with another woman as his wife. The contest was between that woman and his first wife as to her $300 exemption and as to one-third of the estate. The auditor and the lower court were of opinion that the Michigan divorce was void. Mr. Justice Gordon said: “That the decree of the court in Michigan, divorcing Anson H. Platt from his wife, Mary W., was nugatory and void, so far, at least, as it affected the rights of parties in the State of Pennsylvania, is a proposition that is not open to doubt. The cause of divorce did not arise in the State of Michigan, neither did the parties reside therein. Mrs. Platt was not served with process, neither did she appear to answer the libel. Under these circumstances, we cannot recognize this decree of divorce as binding on the appellee: Colvin v. Reed, 55 Pa. 375; Reel v. Elder, 62 Pa. 308.” That opinion was delivered on Feb. 14, 1876. We do not know what the law of Michigan was at that time with reference to the res, but Mr. Justice Gordon evidently thought that the fact that the res arose in Ohio was determining, and no effort seems to have been made to find out whether they had in Michigan the same kind of an act as the Act of April 26, 1850, supra. Again, the husband moved to Michigan in October, 1865. He lived there for two years. On Sept. 24, 1867, he started proceedings for a divorce, yet the learned Justice said “neither did the parties reside in Michigan.” If the Michigan law were like our law, the husband having resided there more than one year, and his wife having deserted him, that divorce would have been perfectly valid. The husband then returned to Pennsylvania and lived here for three years, and lived with another woman, and had a son by her, and yet the first wife had never lived in Pennsylvania at all, and she was allowed to recover her one-third interest as a widow, but not her $300 widow’s exemption. The bearing of article iv, section 1, of the Constitution of the United States upon the subject does not seem to have been brought to the attention of the court, and the decision was prior to most of the legislation quoted above; but it is said that the case was quoted with approval in Grossman’s Estate, supra. It is true that Judge Henderson did mention that case, but it is manifest that he was merely citing it as one of a line of cases. He was not analyzing the case, and it had no bearing in its facts upon the Grossman case. If that case cannot be distinguished from the present case, the action of the trial court was erroneous, but we think that we have distinguished it and that it does not rule this case. We have referred to article iv, section 1, of the Constitution of the United States, “Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” It is contended that the Illinois divorce cannot be pleaded in Pennsylvania because it is admitted that there was no personal service on Jones. That position was iterated and reiterated in the argument, and it was said that if Jones had been served, or if he had appeared, the Illinois divorce would have been all right. It only needs a reference to the case of Atherton v. Atherton, supra, to show that the question of service has nothing to do with the matter. In that case the service was by publication. The decree of divorce was entered, and the Supreme Court of the United States held that it must be given full faith and credit in the courts of the United States. The basis of that decision was placed upon domicile. The underlying doctrine of domicile was fully discussed in the subsequent case of Andrews v. Andrews, 188 U. S. 15. In that case the statute of Massachusetts made valid a divorce in another state, but provided that if an inhabitant of Massachusetts went into another state for the purpose of obtaining a divorce for a cause not recognized by Massachusetts, the divorce would have no effect in Massachusetts. The husband went to South Dakota to get a divorce. His wife followed him and resisted the divorce, but the case was finally settled, and another suit was commenced and the wife entered an appearance to the second suit. The Supreme Court of the United States held that, notwithstanding the wife’s appearance, the Dakota decree did not come under the protection of the article of the Constitution, supra, and permitted it to be shown that the conduct of the parties was a violation of a statute of Massachusetts. The whole opinion of the Chief Justice should be read, and it will appear that it is only when the foreign judgment has been rendered in accord with the laws of the state which are also in accord with and not opposed to the laws of the state in which it is to be used, that the protection afforded by the Constitution will be given to the foreign judgment. We think that the same position results from an examination of all the opinions in Haddock v. Haddock, supra. That certainly was the view of the Supreme Court of Texas in Montmorency v. Montmorency, 139 S. W. Repr. 1168. While, as individuals, we may differ as to the policy of our State in liberalizing divorce and in making it easy, yet, nevertheless, we have no right to set up our individual judgment with respect to this matter, whether that judgment is based on our religious views or on our views as citizens. In Kreusler v. McKees Rocks School District, 256 Pa. 281, the Supreme Court approved the following: “The only authentic admissible evidence of public policy of a state on any given subject is its constitution, laws and judicial decisions, and the public policy of a state of which courts take notice and to which they give effect must be decided from those sources. Where the state has spoken through its legislature, there is no room for speculation as to what the policy of the state is: 9 Cyc., 482.”

The policy of this state has been clearly one of an enlarging and liberalizing tendency, culminating in the Act of 1913, supra, and there is no reason why the decree of divorce granted in Illinois should not have “full faith and credit” given to it in this State. Of course, we cannot, strictly speaking, by comity enforce a judgment of another state if it conflicts with the rights of our own citizens, but where there is an entire parity of the legislation in the two states, the doctrine of comity would seem to call for the same interpretation that has been put upon this statute both in Illinois and in Missouri. Again, the plaintiff in this case was married to the defendant after she had obtained her divorce in Illinois. The general rule of law is well understood. It is set forth in Schofield v. Schofield, 51 Pa. Superior Ct. 564. The syllabus of that case is as follows: “The validity of a marriage between persons swi juris is to be decided by the law of the place where it is celebrated. If valid there, it is valid everywhere. Exceptions to this rule are (1) where the marriage is incestuous; and (2) where a state by statute prohibits one of its subjects, or a class of such subjects, to contract matrimony, generally and in the abstract, employing in the statute language sufficiently indicating the intention to impose a personal incapacity to contract marriage either within or without the state, or by statute prohibits marriages between persons related in a certain degree expressly upon the ground that such marriages are contrary to God’s laws. Marriage between first cousins has never been considered incestuous in Pennsylvania. . . . The act does not render the existence of the marriage relation, the status of marriage, between first cousins generally unlawful if the relation has its origin in a contract lawful when and where it was made. A marriage which was lawful in the State of Delaware in which it was celebrated is not rendered void for the reason that the parties, being first cousins and domiciled in Pennsylvania and knowing that the statute of Pennsylvania prohibited their being joined in marriage, left that state for the purpose of being married in the State of Delaware, and shortly after the ceremony returned to their Pennsylvania domicile and there continued to reside.” That case must be read in connection with Stull’s Estate, 183 Pa. 625, the syllabus of which is: “Wher'e a husband, after being divorced in Pennsylvania from his wife on the ground of adultery with a woman domiciled in Pennsylvania, goes into a state whose laws do not forbid marriage with a paramour, and there marries his paramour, and immediately returns to Pennsylvania, where he and she live and cohabit together as man and wife until his death, she is not entitled to letters of administration if the first wife survives.” Mr. Justice Green, in a very learned opinion, on page 630, said: “There is no question as to the general rule that a marriage which is valid by the law of the place where it is solemnized is valid everywhere. Of course, even this general rule has its exceptions where the particular marriage is contrary to good morals, or public policy, or to the positive statutes of the country where it is sought to be enforced. But where a man and woman, citizens of the same state and subject to an absolute statutory prohibition against entering into a marriage contract which is against good morals and contrary to public policy, leave their domicile and enter another for tjie express purpose of violating the law of their domicile in this respect, the case is highly exceptional and the great weight of authority is against the validity of such á marriage in the place of their domicile. There have been conflicting decisions upon the question, but very few of them sustain the validity of the relation where it has been assumed for an intended evasion of the law of the domicile and is contrary to good morals. The fact of such an intended evasion has been repeatedly recognized as the basis of invalidity when otherwise validity would have been declared.” It will be perceived that in neither of the above cases is a marriage such as the present one spoken of as within the exception to the general rule. Even if the Illinois divorce were invalid, this marriage would not be intrinsically bigamous. It would only be constructively so, not in Illinois, but in Pennsylvania. In Illinois it would always be good. For the above reason, we think the action of the trial judge was correct. We think it follows from the above that by a change in the policy of Pennsylvania, as expressed in its legislation, it is no longer the law that the res must necessarily be in Pennsylvania, that the wife may change her domicile and acquire, for the purposes of divorce, a domicile separate from that of her husband, that personal service is no longer a requisite, that the marriage in- Illinois, valid there, must be construed to be valid everywhere, and that the public policy of this State and comity require, under article iv, section 1, of the Constitution of the United States, that “full faith and credit” should- be given to the Illinois divorce.

It is, however, said, under the authorities of Grossman’s Estate, supra, and others, that the plaintiff cannot be estopped. It must be borne in mind that in Grossman’s Estate, Grossman had died and his heirs were parties. His second wife was claiming the exemption as an individual, and the burden was on her to prove her claim. The doctrine of estoppel was sought to be invoked as against the children by reason of the conduct of their father, which the court held could not be done. More in point are the following cases. In Miltimore v. Miltimore et al., 40 Pa. 151, the syllabus is: “A wife obtained a decree of divorce a. v. m. from her husband on the ground of adultery, having herself procured the issuing of the subpoena but twelve days before the ensuing term. After more than seven years, on the death of her husband, she endeavored to avoid the decree on the ground of irregularity and demanded dower in her husband’s estate. Held, that she was estopped by her own acts and that the decree of the court having jurisdiction both of the cause of action and the parties was not void, but only voidable if taken in time by a party who had a right to object.” In Baily v. Baily, 44 Pa. 274, the syllabus is: “The legal assertion of a right acquired by decree of a court of competent jurisdiction made in due course of law will estop or bar the party from all proceedings thereafter to invalidate the decree under which the asserted right has been claimed. Thus, where, after decree of divorce, the wife brought replevin against her former husband for certain articles of personal property claimed by her and recovered judgment for them by an award, from which there was no appeal, it was held that she was estopped by this assertion of her right from denying, on appeal, the validity of the decree of divorce.” In Richardson’s Estate, 132 Pa. 292, the syllabus is: “Where a decree of divorce absolute was entered in a foreign jurisdiction at the suit of the husband, and the wife subsequently married and never after made claim upon her first husband, who himself subsequently twice married without objection on her part, she is estopped from claiming as his widow on the distribution of his estate, although the decree of divorce might have been avoided at the proper time on her application.” In McDonald’s Estate, 268 Pa. 486, the syllabus is: “Where the return-day of a libel in divorce is fixed at too early a date, the mistake is merely an irregularity which does not render the decree void, but only voidable, at the instance of a party to the proceedings, if a proper and prompt application to open it is therein made. One not a party to the divorce cannot be heard in any proceeding to make objection to the decree upon this ground.” Mr. Justice Simpson, on page 488, said: “It is admitted appellant had been previously married; had applied for and was granted a decree of divorce by the Court of Common Pleas more than five years before she married decedent; that all the proceedings in regard thereto were regular and unimpeachable, except, as is alleged, the court fixed too early a return-day for the original subpoena; that the decree of divorce stands unappealed from and unreversed, and the time within which an appeal could be taken has long since expired. In considering the issue raised, the court below held that, under the Act of April 22, 1905, P. L. 293, the return-day of the original subpoena should have been not less than thirty days after it was issued, and, as it was made returnable in a shorter period, this error of the Court of Common Pleas vitiated the entire proceeding, rendering the decree of divorce wholly void — though there was no averment or proof of fraud or collusion — and subjected it to collateral attack by appellee. To this conclusion we cannot agree.” That is precisely the position in this case. It is a collateral attack by Ray on this divorce, and when the court found that he knew of the divorce, he is estopped in this proceeding to get his property back. Plaintiff has practically abandoned his claim that there was fraud. He seeks to have it set aside on the ground of a mistake of fact. The general rule of law is that ignorance or mistake of law, with full knowledge of the facts, is not ground for equitable relief: Norris v. Crowe, 206 Pa. 438. In that case, Mr. Justice Dean, on page 448, sets forth some of the exceptions. That case was followed in Lancaster v. Flowers, 208 Pa. 199; Clark v. Lehigh & Wilkes-Barre Coal Co., 250 Pa. 304, and Shields v. Hitchman, 251 Pa. 455. We think that doctrine applies to the present case. The plaintiff is bound to know the law just as much as the defendant. If this divorce was not good in Pennsylvania, he was bound to know it, and having declared in his bill that he transferred these properties with the idea that he was transferring them to his wife, he should be bound by his act. From all points of view, we are of opinion that the decision of the trial judge was correct.

And now, April 2, 1928, this cause came on to be heard at this term by the court in banc, and upon consideration thereof, it is ordered, adjudged and decreed that each and every one of the exceptions be dismissed and that the relief prayed for in the bill be denied, and that the bill of the complainant be dismissed, at the costs of the complainant.


source: Caselaw Access Project

author: MARSH, P. J.,

license: Public Domain

text:
    Commonwealth v. Copley et ux.

      School law — Attendance—Conviction of parents — Summary conviction— Justice of the pease — School Code — Act of May 18, 1911, P. L. 309 — Misdemeanor — Constitutional law.

      1. Summary conviction of parents charged with failure to send their children to school will be sustained, although the act defines the offense as a misdemeanor.
    2. Such parents do not have, under the Constitution, the right of trial by jury.

      School law — Transportation of children — School Code.

    3. Proper free transportation of pupils to a public school from their home does not mean all the way.
    4. Where a child is required to walk only four-tenths of a mile from his home to a shelter and is transported the rest of the way, it is immaterial that the distance from his home to the school is more than two miles.
    Appeal from summary conviction. Q. S. Tioga Co., Sept. T., 1927, No. 42.

      Rockwell & Rockwell, for Commonwealth.

      Chester H. Ashton, for defendants.
    Jan. 18, 1928.
   MARSH, P. J.,

The defendants were summarily convicted of violation of the school law in neglecting, for three successive days, without excuse, to send their son, Chauncey Copley, a child of twelve years, to school after due notice of their delinquence.

An appeal was allowed, and the defendants asked for a reversal of the justice’s decision, alleging:

1. That the act under which the conviction was had makes the offense a misdemeanor, and, therefore, the defendants have a constitutional right to a trial by jury, and the justice was without jurisdiction; and

2. The defendants live more than two miles from the school by the nearest traveled road, and the transportátion furnished for the pupil in question, under which he is required to walk four-tenths of a mile to a shelter, is not the proper free transportation to and from school which the law requires as a condition precedent to support a conviction for this offense.

The first reason alleged in support of a request for reversal is based on the claim that in all cases of misdemeanor the offender must be proceeded against by indictment in a court of record and tried by a jury of his peers. A technical significance is attributed to the word “misdemeanor” which would exclude offenses so designated from the established class cognizable by justices, magistrates and aldermen. This claim cannot be sustained. We do not have in this State the classification of misdemeanors which obtains in some jurisdictions, under which petit misdemeanors are cognizable by justices of the peace, and more serious misdemeanors by the courts of record; but without that formal division we apply the reason which it illustrates.

Our Constitution, in section 14 of article v, recognizes summary convictions and prescribes the method, of appeal. And this section has been construed by the Supreme Court.

In Com. v. Waldman, 140 Pa. 89, a case elaborately argued, the court said:

“Article v, section 14, of the Constitution of 1874, which permits appeals in all cases of summary conviction or in actions for penalties before a magistrate or a court not of record, upon the allowance of the appellate court or a judge thereof, is not restricted to such cases as were without the right of appeal prior to the adoption of the Constitution, but it embraces all appeals from judgments for penalties or of summary conviction.
“Article I, section 6, of the Bill of Rights, which declares that ‘trial by jury shall be as heretofore, and the right thereof remain inviolate,’ is not inconsistent with section 14 of article V of the Constitution, relating to appeals in cases of judgments for penalties and of summary convictions.”

In the course of its opinion, the court said: “When the legislature shall decide that in every case of a petit summary conviction the defendant shall have the right to a jury trial, they will probably say so in language too clear to be misunderstood.”

The legislation which defined as a misdemeanor the failure to observe the compulsory feature of the school law specifically provided for trial of the. offense by a justice of the peace, magistrate or alderman, and then for appeal to the Court of Quarter Sessions. The jurisdiction conferred on the inferior courts, and the procedure provided, clearly establishes the purpose of the legislature to classify this offense as one to be punished summarily; and a description of it as a misdemeanor does not enlarge the offense and should not be construed to change the incidents of trial.

The defendants further contend that as the pupil whose non-attendance is in question lives more than two miles from school by the nearest traveled road and free transportation was not furnished from his home to the school, the conviction cannot stand.

Section 1408 of the School Code provides, in part, as follows: “The free transportation of pupils as required or authorized by this act may be furnished by using electric railways, school conveyances or other public trans'portation, when the total distance which any pupil must travel between his residence and the school, in addition to such transportation, does not exceed one and one-half miles and when stations or other proper shelters are provided for the use of such pupils where needed.”

It was admitted that in this case the child was required to walk only four-tenths of a mile to a farm-house shelter arranged for; but it was argued that the strict construction appropriate to prosecutions of this kind required the interpretation that proper free transportation to and from the public schools meant all of the way.

The act having definitely stated what the free transportation required or authorized by the Code should be, the contention of the defendants cannot prevail.

And now, Jan. 18, 1928, the conviction and sentence appealed from are affirmed.

From G. Mason Owlett, Wellsboro, Pa.


author: Knight, J.,

text:
    Montgomery County Poor Directors v. Boorse et al.

      Poor law — Husband and wife — Support of wife in State institution— Insane poor — Act of April 6, 1905 — Jurisdiction, Q. S.

    1. A husband is liable for the past maintenance of his wife in a State asylum for the insane.
    2. Under the Act of April 6, 1905, P. L. 112, the Court of Quarter Sessions has jurisdiction to make an order on a husband to pay for the past maintenance of his insane wife in a State institution.
    3. The court will not make such an order if it appears that the husband has no real estate, owns only a little furniture and a team of horses, is heavily in debt, and earns scarcely enough to support himself and his minor children.
    4. If, in such a case, it appears that the husband has entered a bond for the maintenance of his wife, the remedy on the bond should first be exhausted.
    Petition for order on husband and son by the Poor Directors of Montgomery County Poor District. Q. S. Montgomery Co.

      F. Kenneth Moore, for petitioners.

      William F. Dannehower, Jr., for Christian and Herbert Boorse.
    Oct. 13, 1927.
   Knight, J.,

-The Montgomery County Poor District presented its petition, from which is gathered the following facts:

Sara Ellen Boorse was admitted to the State Hospital for the Insane at Norristown on Aug. 1, 1921, where she still remains a patient. During her stay in that institution one-half the cost of her maintenance has been charged to the Directors of the Poor of Montgomery County, who, up to June 1, 1927, had expended for her keep, care and treatment the sum of $896.16.

Sara Ellen Boorse has a husband living, Christian Boorse, and an adult son, Herbert Boorse, and the petition prays for an order on them to pay the poor district the amount due for past maintenance as well as a continuing order for her future maintenance in the State institution.

The answer of the defendant admits the above stated facts, but denies the authority of the court to make an order on the defendants for the amount due for past maintenance.

On Sept. 2, 1927, a hearing was held and the matter of the future maintenance of the said Sara Ellen Boorse was disposed of by making an order of $3 per week, equally divided, upon Christian Boorse, the husband, and Herbert Boorse, the adult son. So far as the past maintenance was concerned, the case was placed upon the September argument list, when it was fully argued upon petition and answer and is now before us for decision.

At the argument, it was conceded by counsel for the poor district that no order can be made, at least upon the present record, on Herbert Boorse, the now adult son, for the past maintenance of his mother, the said Sara Ellen Boorse.

The solution of the problem before us lies in the answer to two questions: Is the husband liable for the past maintenance of his wife in the State institution? If so, is the Quarter Sessions the proper tribunal to enforce this liability?

The answer to the first question is rather simple. The duty of a husband to provide for his wife is fundamental; her function has ever been motherhood and reproduction, while his has been the protection and maintenance of his mate. Had this faithful but unfortunate wife, with the consent and approval of her husband, boarded with strangers for the last two years, no one would question the husband’s liability to pay the bill. Why, then, should he not pay for her maintenance in the State institution, especially when, by reason of her unfortunate mental condition, he himself very properly sought her admission there. Had she been treated as a patient in a private institution, his obligation to pay for this “necessary” would have been considered too well settled to admit of argument, and the fact that she has been treated in a public instead of a private institution in no way affects his obligation to pay for this treatment.

If any doubt remains, it is instantly dispelled by the fact that Christian Boorse, when he placed his wife in the State hospital, gave a bond conditioned for the payment of this' very maintenance which the poor district now seeks to collect. This fact was unknown to counsel for the poor district when he presented the present petition.

The second question is not so easy. At first blush, we were inclined to think that a suit in the Common Pleas was the proper method of collecting the bill for past support. After hearing the argument, reading the brief of counsel for the poor district, examining the decided cases and reflecting upon the matter, we have reached a different conclusion.

Counsel for the poor district relies upon the case of Wertz v. Blair County, 66 Pa. 18, as conclusive of his position that the Quarter Sessions has juris-isdiction to make orders for past maintenance. An examination of the case shows that only by analogy can it be applied to the present state of facts. Wertz v. Blair County was a case involving an order on a father for the support of his son, and the court based its decision on the Act of April 15, 1857, P. L. 191, which gave power to the Quarter Sessions to make orders and decrees in all cases arising under the 28th section of the Act of June 13, 1836, P. L. 541, either with or without an order of relief having been first obtained. When an examination of section 28 of the Act of 1836 is made, it will be seen at once that it does not cover the relationship of husband and wife.

The Act of April 6, 1905, P. L. 112, provides, however, that “the husband ... of every poor person shall at their own charge, being of sufficient ability, relieve and maintain such poor person at such rate as the Court of Quarter Sessions of the Peace where such poor person resides shall order and direct.”

We are of the opinion that this act rests in the Quarter Sessions jurisdiction, and in exercise of this jurisdiction the court is not confined to the future support of such persons, but, especially in the case of a wife, can make equitable orders involving the payment of back support as the ability of the husband to pay shall warrant.

The theory of our poor law is that the directors or overseers of the poor shall maintain indigent persons and look to the relatives liable under the Act of 1905 for reimbursement. This liability may be enforced by petitions in the Quarter Sessions, and in the very nature of things involves past maintenance, because the purpose of the proceeding is to recover moneys already expended by the directors of the poor. The amount sought to be recovered does not affect the right of recovery.

Having determined that the defendant is liable for past support of his wife and that the Quarter Sessions has jurisdiction to enforce this liability, let us examine the case on its merits, especially as to the defendant’s ability to pay the amount due.

He owns no real estate and the only personal property that he possesses is a little furniture and a team of horses with which he makes his living. He is heavily in debt at the present time and his earning capacity is barely sufficient to pay his share of the current charges for maintenance of his wife at the State hospital and support his minor children. An order against him, if it had any effect at all, would only deprive him of his team of horses and cut off his means of livelihood. Nothing can he gained by pauperizing one citizen in order to support another indigent citizen.

There is another reason for refusing to make an order on the defendant for this past support. The directors of the poor hold the defendant’s bond in the sum of $200, conditional for the payment of a part of the money they are now seeking to collect. We do not mean to suggest that it would be advisable to sue out this bond at the present time, but if conditions should change, they might realize on this security they now hold. At all events, we feel that they should exhaust their remedy on the bond before they seek a decree for past maintenance now due.

And now, Oct. 13, 1927, the rule on the defendants, so far as it applied to the sum of $896.16 due for maintenance of Sara Ellen Boorse to June 1, 1927, is discharged.

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


author: Patterson, P. J.,

text:
    Raible’s Estate.

      Entireties — Estate by entireties — Husband, and wife — Stock certificate.

      1. Where a certificate of stock of a corporation is issued to two persons who are in fact husband and wife, such persons take an estate by entireties in the shares of stock represented by the certificate; and it is immaterial that there were no words in the certificate to indicate that the parties were man and wife.
    2. The rule that the title to property held jointly by husband and wife rests in the survivor applies to personal as well as to real property.
    Exceptions to auditor’s report. O. C. Blair Co., No. 859½, 1897.

      J. F. Sullivan, for exceptant; Kurtz & Perry, for accountant.
    March 13, 1928.
   Patterson, P. J.,

This matter comes before us on exceptions to the report of the auditor appointed' by the ‘ Orphans’ Court to pass upon exceptions to the final account of the administratrix and to make distribution of the balance shown by said account to the parties entitled thereto. The two exceptions will be considered together, and are as follows:

First. “The auditor erred in holding that under the law the stock of the decedent, of the Penn Central Light and Power Company, was held by decedent and his wife as an estate in entireties.”
Second. “The auditor erred in not compelling the accountant to surcharge herself with the value of the Penn Central Light and Power Company stock.”

Joseph P. Raible died Nov. 23, 1926, leaving to survive him a widow, Margaret Moore Raible, and no children. During the lifetime of the deceased, he and his wife, Margaret, purchased seventy-five shares of the stock of the Penn Central Light and Power Company, dated Jan. 27, 1926, and issued in the names of “Joseph P. Raible and Margaret M. Raible.” An examination of the record of this estate in the Orphans’ Court discloses the fact that the adminis-tratrix failed to include any part of the said stock certificate in the inventory and appraisement, and that no reference is made to the same in the account filed by said administratrix, and the auditor, in passing upon exceptions to the account as filed, holds that the stock certificate was properly excluded from the inventory and appraisement and also from the account of the admin-istratrix. It is contended on the part of the exceptant, since the certificate issued in the names of “Joseph P. Raible and Margaret M. Raible,” without the word “wife” or “husband” or other words to indicate that the parties were man and wife, the same represented partnership property and not an estate by entireties. On the other hand, the counsel for the accountant, in support of the findings of the auditor, argues that the naming of the two persons without words describing their marital relations is sufficient to create an estate by entireties if the evidence offered before the auditor establishes that said parties were, in fact, husband and wife.

The law controlling estates by entireties is well settled in Pennsylvania. In Parry’s Estate, 188 Pa. 33, the syllabus is as follows: “An estate by entire-ties may be created in a chattel, in a chose in action and one in possession, as well as in realty. It is not abolished as to choses in action by legislation affecting joint tenancy. A letter of credit purchased by a husband with his own money, made payable to himself and his wife, and intended to.be used in a journey abroad, creates an estate by entireties, and if the husband dies before the letter of credit is exhausted, the wife is entitled by survivorship to any balance that may be due upon it.”

Mr. Justice Walling, in Sloan’s Estate, 254 Pa. 346, holds: “The rule that the title to property held jointly by husband and wife rests in the survivor applies to personal as well as to real property: ” Bramberry’s Estate, 156 Pa. 628.

And it is a joint ownership, with right of survivorship, where the stock certificate is payable to husband or wife as well as where payable to husband and wife. In either case, it is held by entirety: Klenke’s Estate (No. 1), 210 Pa. 572; Roka v. E. P. Wilbur Trust Co., 10 D. & C. 94.

An estate in entirety may be acquired only by a man and a woman who sustain to each other the legal relation of husband and wife at the time the conveyance or devise to them becomes effective: 30 Corpus Juris, § 91, page 562.

It was not necessary that the deceased and his wife should have been described as man and wife in the stock certificate. The word “husband” or “wife” need not be used if in fact the man and woman named in the grant, certificate of deposit, stock certificate or other evidence of ownership are legally married at the time of the issuing of the same. “The creation of an estate in entirety does not depend on the fact that the grantees are or are not named as husband and wife in the deed; the relation between the parties, and not the presence or absence of a description of a relation in the deed, is the controlling factor:” 30 Corpus Juris, § 88, page 558; Parrish v. Parrish, (Ark.), 235 S. W. Repr. 792; Klatzl’s Estate, 216 N. Y. 83; Gasner v. Pierce et al., 286 Pa. 529; Stuckey v. Keefe’s Executors, 26 Pa. 397.

“A tenancy by entireties arises whenever an estate vests in two persons, they being, when it so vests, husband and' wife. It may exist in personal as well as real property, in a chose in action as well as in a chose in possession. The common law rule is that the words which in a conveyance to unmarried persons constitute a joint tenancy, will create, if the grantees are husband and wife, a tenancy by entirety:” Bramberry’s Estate, supra.

For the reasons above set forth, we are of the opinion that the stock certificate for seventy-five shares of Penn Central Light and Power Company stock, issued in the name of Joseph P. Raíble and Margaret M. Raíble, was an estate by entirety and became exclusively the property of Margaret M. Raíble, the surviving spouse, upon the death of Joseph P. Raíble, and is, therefore, no part of the estate of the said Joseph P. Raíble and was properly excluded from the .inventory and appraisement. Therefore, the exceptions to the auditor’s report are dismissed and the report confirmed absolutely.

From Robert W. Smith, Hollidaysburg, Pa.


author: Alessandroni, J.,

text:
    Camden Safe Deposit & Trust Co., Trustee, v. Eavenson et al.

      Realty — Possession—Purchaser at sheriff’s sale — Lease—Construction— Conveyance to tenant — Merger—Statute of frauds.

    1. One who holds title through purchase at sheriff's sale under foreclosure proceedings is entitled to possession as against a tenant of the property under a lease which provides that the latter took possession as sub-tenant and subject to all the terms and conditions of an original lease, wherein the tenant agreed to give possession in case the lease should terminate by “expiration, forfeiture or otherwise,” and there was a merger of the title and leasehold by conveyance of the premises to the original tenant.
    2. The word “otherwise” will be construed to cover "termination of the lease by merger.
    3. Evidence of a contemporaneous oral agreement contradicting the terms of the lease, whereby the tenant claimed to be entitled to continued possession, is not admissible under the statute of frauds, nor would continued possession under such oral agreement create a new term superior to the rights of the mortgagee.
    Petition for possession of property purchased at sheriff’s sale under the Act of April 20, 1905, P. L. 239. C. P. No. 5, Phila. Co., March T., 1927, No. 4491.

      Lester B. Johnson (with him George Wharton Pepper, for Philadelphia Company for Guaranteeing Mortgages, Trustee), for petitioners.

      Wolf, Block, Schorr, etc., and Owen J. Roberts, for respondents.
    July 9, 1928.-
   Alessandroni, J.,

William R. Stanert, on Oct. 13, 1927, filed his petition for citation, directed to Eugene Jacobs, Jennie M. Stern and Guilford-Bacharach Company, to show cause, if any, why the possession of certain premises situate at the northeast corner of Broad and Girard Avenue, Philadelphia, should not be delivered to him. William R. Stanert acquired title by deed from Harry Vliet, who in turn took title from the Sheriff of Philadelphia County, who sold by virtue of foreclosure proceedings on a mortgage held by the Camden Safe Deposit and Trust Company, trustee. The petition sets forth that the respondent, Eugene Jacobs, came into possession of the premises aforesaid by virtue of a lease from Jennie M. Stern to Guilford-Bacharach Company, which said lease has since been assumed by the said Eugene Jacobs. That at the time of the execution of the said lease, Jennie M. Stern was lessee of the aforesaid premises by virtue of a lease dated May 24, 1920, from Mastbaum Brothers & Pleisher, agents for Arthur W. Pusey; said lease being for a term of twenty years from Jan. 1, 1921.

At the time of the execution of the said lease to Jennie M. Stern, Arthur W. Pusey was in possession of said premises under a certain lease dated May 22, 1920, from Mastbaum Brothers & Fleisher, agents for George H. Earle, Jr., who was then the owner of the said premises. This lease gave the lessor the option to sell the demised premises to the lessee at the expiration of five years from Jan. 1, 1921, for a fixed sum, and in another paragraph thereof gave an option to the lessee to purchase the demised premises from the lessor at the expiration of ten years from Jan. 1, 1921, under substantially the same terms and conditions as the option of the lessor. Permission was given the lessee to sublet such portions of the demised premises as he might not require for his own business. On March 5, 1925, George H. Earle, Jr., conveyed said premises to Harry Vliet, nominee of Arthur W. Pusey. Subsequently, on April 6, 1925, Arthur W. Pusey et ux. conveyed the aforesaid premises to George W. Eavenson, and on the same day George W. Eavenson et ux. reconveyed the same premises to Arthur W. Pusey. Before reconveying the property to Pusey, George W. Eavenson Created the mortgage upon which the foreclosure proceedings in this case were instituted. On Feb. 28, 1927, Grace E. Pusey et al., executors and trustees of the will of Arthur W. Pusey, granted and conveyed said premises to William R. Stanert. On June 26, 1927, the Sheriff of Philadelphia County acknowledged and delivered a deed to the said premises to Harry Vliet. Shortly thereafter, Harry Vliet granted and conveyed the said premises to William R. Stanert, the petitioner.

Arthur W. Pusey’s lease of May 24, 1920, to Jennie M. Stern contains the following clause: “15. If the Lessor’s principal is Lessee of the demised premises or of the building of which the said premises are a part, then Lessee agrees that Lessee takes possession as sub-tenant and agrees to be bound by the terms, conditions, covenants and agreements of the said principal’s tenancy, whatever the same may be, and in case the principal’s tenancy shall terminate either by expiration, forfeiture or otherwise, then this lease shall thereupon immediately terminate, and the Lessee hereby agrees thereupon to give immediate possession, and Lessee further agrees to waive, and hereby does waive, any and all claims for damages, or otherwise, by reason of such other terms, conditions, covenants and agreements and their enforcement and for such termination.”

The following clause appears in the lease by Jennie M. Stern to Guilford-Bacharach Company: “This lease is made under and subject to all the terms of the lease on said premises bearing even date herewith made between Mast-baum Brothers & Fleisher, Agent, Lessor, and Jennie M. Stern, Lessee, and should that lease be terminated by law, all personal liability of the said Jennie M. Stern under this lease shall thereupon cease and terminate.”

It is contended by the petitioner that when Arthur W. Pusey took title to the said premises from George H. Earle, Jr., on or about March 5, 1925, the lease of George H. Earle, Jr., to Arthur W. Pusey, dated May 22, 1920, terminated, and that it having so terminated, the lease of Arthur W. Pusey to Jennie M. Stern, dated May 24, 1920, also came to an end, and in support of this contention invokes the provisions of paragraph 15, above recited. To this petition Jennie M. Stern and the Guilford-Bacharach Company filed separate answers. Eugene Jacobs also filed his answer, together with his disclaimer to title or possession of the premises. The answer of the respondent, Guilford-Bacharach Company, may be considered with the answer of Jennie M. Stem, which latter, in paragraph 6 thereof, sets forth new matter in the nature of an oral contemporaneous agreement between Arthur W. Pusey and Jennie M. Stern, which may be briefly stated as follows:

Prior to May 24, 1920, Guilford’s, Inc., had possession of the premises involved in this proceeding as tenant of George H. Earle, Jr., the then owner of the premises, under two leases, one for a term of five years from Jan. 1, 1917, and the other for a term of ten years from Jan. 1, 1921, the latter lease containing an option to Guilford’s for an additional term of ten years. That on or before May 22, 1920, George H. Earle, Jr., entered into a lease with Arthur W. Pusey for the same premises, containing an option to buy the said premises conditioned upon securing a cancellation of the leases theretofore made with Guilford’s, Inc. That Arthur W. Pusey proposed to Jennie M. Stern that if she procured cancellation of Guilford’s leases as of Dec. 81, 1920, he, Pusey, would give her a lease for the store only, located at the northeast corner of Broad Street and Girard Avenue, about twenty feet on Broad Street and about forty-eight feet on Girard Avenue, for the nominal rent of $1 per annum, the rent for the entire term to be paid upon the execution of the lease. That Pusey and his agents, Mastbaum Brothers & Fleisher, further represented to Jennie M. Stern that he would exercise his option to purchase the property from George H. Earle, Jr., in accordance with the terms of his agreement, and that she then would have a lease direct from him, Pusey, with no liens prior to the said lease other than the then-existing mortgage, etc. That Jennie M. Stern did procure cancellation of the Guil-ford’s leases, as a result of which Pusey gave her a lease for a term of twenty years from Jan. 1,1921, for the store for the annual rental of $1 per annum, which was paid for the full term upon the execution of the said lease. That thereafter, on Dec. 31, 1920, Guilford’s, Inc., terminated its lease, and, on Jan. 1, 1921, the respondent took possession of the said demised premises and continued in possession peaceably thence hitherto. That' Pusey and his successors in title have at all times recognized the respondent as a tenant under the said lease and that no demand was ever made for possession until the demand of William R. Stanert.

Jennie M. Stern, the respondent, denies the petitioner’s averment of the conclusions of law, to wit, that the lease was terminated on March 5, 1925, by Pusey’s acquisition of the title, but avers that her lease continues according to its terms and conditions. There are other admissions and denials in the answer that do not affect the issue in this case. The respondents, Jennie M. Stern and Guilford-Bacharach Company, requested that replication be made to the new matters set forth in their answers, and also prayed for a jury trial upon the issues of fact raised by the pleadings. Petitioner filed replications, to which the respondents entered a rule for judgment upon the whole record. After argument, President Judge Martin filed an opinion entering judgment upon the whole record in favor of the petitioner and against the respondents. Subsequently, the respondents filed a petition for reargument, to which petitioner filed his answer, with a prayer that the court direct judgment upon the .whole record in favor of William R. Stanert, petitioner, and against Jennie M. Stern and Guilford-Bacharach Company, Inc., respondents. The rule for judgment upon the whole record disposes of the request for a jury trial. Later, the Philadelphia Company for Guaranteeing Mortgages, trustee, files its petition for leave to appear and argue, alleging that- it held a first mortgage on the said premises, created immediately prior to the time of the creation of the mortgage given to the Camden Safe Deposit and Trust Company, trustee, and that the questions of law involved in the issue before the court would be applicable to the issue that will arise in the event that the Philadelphia Company for Guaranteeing Mortgages, trustee, forecloses upon its first mortgage, and it, or any other purchaser of said premises at such foreclosure sale, seeks to recover possession thereof from the said Jennie M. Stern, and that said questions of law are vital to the security and value of the mortgage held by the said company.

With this statement of the essential facts in the record, we have before us the petitioner’s contention that the lease of Arthur W. Pusey to Jennie M. Stern, dated May 24, 1920, terminated March 5, 1925, under clause 15, and the respondent’s contention that clause 15 of the Pusey-Stern lease is not applicable because

(a) There was no merger when Pusey took title.

(b) That the Camden Safe Deposit and Trust Company could acquire no higher rights than its mortgagor, Pusey.

(c) That the Camden Safe Deposit and Trust Company, when it took its mortgage, was bound, under the law, to inquire and ascertain the facts with respect to the possession of Jennie M. Stern.

(d) The acquirement of the f-’e by Pusey under the circumstances did not destroy the term of Jennie M. Stern.

(e) The provisions of the lease between Pusey and Stern do not work a termination of Stern’s term on the acquirement of the fee by Pusey.

(f) That under the doctrine of ejusdem generis, the word “otherwise” in clause 15 must be interpreted in a restricted sense.

All of respondent’s contentions turn about the relevancy and construction of clause 15, the relevancy and the admissibility of the alleged oral contemporaneous agreement between Pusey and Stern, and that the acquirement of the fee by Pusey did not destroy the term he had created in favor of Stern. In none of the cases cited by the respondent upon the subject of merger does it appear that the court had before it a clause similar to the one under consideration. The equitable doctrine that a merger is not favored to the prejudice of one having a beneficial interest is not here disputed. The beneficial interest of Jennie M. Stern must appear in the body of the lease. It cannot be injected into it by an oral contemporaneous agreement between her and Pusey, not reduced to writing, as required by the statute of-frauds, for reasons here not disclosed and which cannot be considered. The respondent’s argument that clause 15 is not applicable because there was no merger is not tenable. The respondent cannot eliminate this clause from serious consideration by the introduction of oral understandings between herself and Pusey. The Camden Safe Deposit and Trust Company might very well have rested its investigation of the right of Stern’s possession by an examination of her lease with Pusey. There was nothing in it to put it on notice that it was not the entire agreement between the parties. The effort of the respondent to minimize the value and effect of clause 15 has no legal support. It does not avail to say that it was a printed clause used by the agents to protect their clients (lessors), where such lessors appeared to be tenants rather than owners, nor that its only purpose was to protect the lessor (Pusey) from possible damages resulting from the cancellation of this lease. In a lease for twenty years, where the stated consideration for the whole term is $20, and where, as here, thére was no reason for suppressing the real consideration, to wit, the cancellation of the Guilford leases, common prudence would dictate the insertion of the real consideration and a clause safeguarding the beneficial interest of Jennie M. Stern.

The word “otherwise,” as used here, had not been given the restricted meaning urged by the respondents. In Com. v. Dicker, 195 Pa. 234, the court construed a statute conferring the power to appoint poor directors to fill vacancies caused “by death, resignation or otherwise.” The court said: “The word ‘otherwise’ in the supplement is broad enough to cover vacancies by death and resignation. It also covers vacancies by removal of the incumbent from the district and by failure of a director-elect to assume the duties of his office.” It also extended its meaning to vacancies when the term expired and the district failed to elect as provided by the act.

In McCune v. Berry, 237 Pa. 572, the statute authorized the county commissioners to rebuild bridges “destroyed by ice, flood or otherwise.” The bridge was demolished by an order of the Secretary of War. There the court held: “The word ‘otherwise’ in the act does not mean some casualty ejusdem generis with ice and flood, but means some other greater power that is as effective in destroying the bridge as an extraordinary flood of ice or water would be.” See, also, Whelen’s Appeal, 70 Pa. 410; Kintzer’s Estate, 26 Dist. R. 936.

Under these authorities, the words “or otherwise” are given a meaning broad enough to be interpreted as meaning “in any other way.” The general rule of construction that in cases of doubt and uncertainty in the meaning of a lease, language is to be construed most strongly against the grantor and in favor of the grantee, is invoked in cases of ambiguity: Conneaut Ice Co. v. Quigley, 225 Pa. 605; McClintock v. The Ætna Co., 260 Pa. 191.

There is no ambiguity in the words “expiration, forfeiture or otherwise.” The language is clear and precise. The word “otherwise,” in Pennsylvania, has been given a meaning not limited or restricted to the scope or connotation of the words preceding it. 'In this case the only logical interpretation of the word is “in any other manner.”

The only remaining question, therefore, is, did the lease terminate?

Martin, P. J., correctly stated the legal effect of acquisition of the fee by Pusey when he said: “When Pusey became the owner of the property, he ceased to be a tenant, and when his lease terminated, under clause 15, the lease made by him to Jennie M. Stern terminated. That she was permitted to remain in possession after the lease terminated did not create a new term superior to the right of the mortgagee or estop the owner of the property from demanding possession.”

And now, to wit, July 9, 1928, judgment is entered upon the whole record in favor of petitioner and against the respondents.


author: Kun, J.,

text:
    Alcorn Combustion Company v. M. W. Kellogg Company.

      Foreign corporations — Process—Service on Secretary of Commonwealth— Outstanding liabilities of corporation — Act of June 8, 1911.

    1. Service oí summons on a foreign corporation registered to do business in Pennsylvania may be made by serving the Secretary of the Commonwealth, regardless of whether it was actually doing business in Pennsylvania at the time of service of the writ, there being no limitation in the Act of June 8, 1911, P. L. 710, of the authority of the Secretary to accept service for such corporation.
    2. Section 2 of the Act of 1911, providing that the authority of the Secretary of the Commonwealth to accept service shall continue so long as any liability remains outstanding against the company in this State, refers to circumstances where there is an attempt to revoke the registration and does not prevent service at any time during continuance of the registration, regardless of whether the corporation has any outstanding liabilities.

      Foreign corporations — Doing business — Admissions in tax and bonus reports filed — Contracting business.

    3. A foreign corporation is doing business in Pennsylvania where, in addition to registration as such, it flies capital stock and bonus returns in which it admits having a portion of its capital employed here and is engaged in the business of constructing chimneys by its own employees 'out of materials purchased here.

      Assumpsit against a foreign corporation. C. P. No. 1, Phila. Co., March T., 1928, No. 8927.

      B. O. Frick and Owen J. Roberts, for plaintiff; F. L. Clark, for defendant.
    June 29, 1928.
   Kun, J.,

The plaintiff and the defendant are both foreign corporations, registered to do business in Pennsylvania under the Act of June 8, 1911, P. L. 710. The plaintiff’s office is in the Bellevue Court Building, Philadelphia. The location of the chief office in Pennsylvania of the defendant is given as, “Representative—Paul B. Wyett & Co., 5 South 18th Street, Philadelphia;”

For several years the defendant made returns to the Auditor General; for the year 1926 reporting, “Amount of capital employed in Pennsylvania, $16,058.91;” and for 1927, $14,997.91.

On April 10, 1928, plaintiff issued a summons in assumpsit against the defendant, which was duly served on the Secretary of the Commonwealth, constituted by the defendant its true and lawful attorney and authorized agent to accept service of such writ, as appears by the return made by the Sheriff of Dauphin County, deputized for that, purpose by the Sheriff of Philadelphia County. Copy of the statement of claim and notice to file affidavit of defense, the original of which had been filed April 12, 1928, was served with the writ. On April 25, 1928, on petition, a rule was allowed on plaintiff to show cause why the service of summons and copy of statement of claim, with rule to file affidavit of defense, should not be set aside and the writ quashed. The principal grounds of defendant’s petition are that defendant was not engaged in doing business in Pennsylvania, and that it had no outstanding liabilities to any one in this State. There does not seem to be much difficulty about the position of the plaintiff in bringing an action in this State. Plaintiff duly registered here as a foreign corporation under the Act of 1911, has its principal office in this State, in Philadelphia. Whatever its position may have been were it not duly registered, it must be clear that, having by its registration submitted itself to the process of our courts, it may use them to assert its own claims, though there is no reason why it could not sue in our courts in any event.

“As a general rule, neither citizenship nor residence is requisite to entitle a person to bring suit in Pennsylvania.” This, without regard to the origin of the cause of action: Knight v. West Jersey R. R. Co., 108 Pa. 250, 255. This principle has never been departed from.

Taking up now the situation of the defendant: If it did no business in Pennsylvania, that is, no intrastate business, it was not obliged to register as a foreign corporation. Such registration was required to allow defendant corporation the privilege of doing intrastate business in this State. One of the conditions of such registration is that the foreign corporation appoint the Secretary of the Commonwealth to act as its attorney and agent upon whom legal process issued in this State may be served. There is no limitation in the Act of 1911 of the authority of the Secretary of the Commonwealth so-appointed to accept service of process for such a registered corporation. It is not conditional on such a foreign corporation actually doing business in the State at the time of the issuance of the writ. It seems it would be unreasonable to assume that a foreign corporation so voluntarily registering in this State to do business and authorizing the Secretary of the Commonwealth to accept service of process for it could, notwithstanding, have the right to show in a case that it was not doing business in the State. If the interpretation were otherwise, it would open the door in each case for a collateral inquiry as to that fact which the requirements of the Act of 1911 may reasonably be assumed to have intended to avoid. Added to the fact of registration by the defendant in this State there is the further fact that it filed capital stock and bonus returns with the Auditor General for the years 1926-1927, in which it admitted having employed in this State a portion of its capital. It is difficult to understand the basis of its contention, considering the case from the public records in the State which the defendant has itself made. Defendant, registered in Pennsylvania in 1923, and from that year until 1927, inclusive, filed capital stock tax reports and, for 1926 and 1927 at least, filed bonus, reports with the Auditor General and paid taxes. The reports for 1927 were sworn to and filed after the issuance of the writ in this. case.

In-answer to the question in the bonus reports, “State date of commencement of business in Pennsylvania,” the defendant stated “since organization.”' The court cannot permit the defendant to contradict the public records made by it: De La Vergne Refrigerating Co. v. Kolischer, 214 Pa. 400, 410. Although it seems that, under the circumstances, it was unnecessary to do so, it is very clearly established by depositions taken under the rule that the defendant is in fact doing business in Pennsylvania, and has been for many years. Defendant has been erecting and constructing chimneys in Pennsylvania of cement and concrete purchased in Pennsylvania, and at least 50 per cent, of them from brick manufactured in Pennsylvania for the defendant, shipped and delivered to the defendant in Pennsylvania. These chimneys are erected by defendant’s employees, some of whom are hired from Pennsylvania and others elsewhere, all of whom perform their work in Pennsylvania.

This is not a case of an interstate sale with the incident supervision of erection, such as was involved in the case of Williams v. Golden and Crick, 247 Pa. 397, cited on behalf of the defendant. In that case the foreign corporation made special ornamental bronze work according to specifications in New York, which was then shipped to Pennsylvania, where it was put in place by its specialists sent from New York, though with the aid of some local labor. Aside from this essential difference between the cases, the court said in that case (at page 401): “The plaintiff had not established an office or transferred any part of its capital to the State when carrying on its ordinary business here.”

In the case before the court there is involved the actual construction in Pennsylvania of buildings from materials, most of which, and in at least 50 per cent, of the chimneys, all of which, are made and purchased in Pennsylvania, where they are delivered by the defendant to its contracting party. The defendant has also, since 1922, been continuously engaged in erecting and constructing in Pennsylvania what are known as cracking plants. The extent of that business is shown by the fact that the contract prices for such plants constructed by the defendant in Pennsylvania since 1924, including the one at Corapolis, now in the course of construction, totaled over $3,378,000. The erection and construction of these plants require from six months to over a year in each instance. The defendant has been at work on the Corapolis plant for over a year. It seems unnecessary to go into further detail concerning the operations of the defendant in this State. It must be clear that it is engaged in intrastate business, in part at least, in Pennsylvania: General Railway Signal Co. v. Virginia, 246 U. S. 500; Kansas City Steel Co. v. Arkansas, 269 U. S. 148. Had the defendant not registered under the Act of 1911, as it did, it would have done business in this State in violation of the law, and would not have been able to recover indebtedness due it under its building contracts.

The defendant has also made the point that the defendant cannot be sued in Pennsylvania if it has no liability outstanding against it in Pennsylvania. The provision in section 2 of the Act of 1911 that “the authority for service of such process shall continue in force so long as any liability remains outstanding against it in the Conimonwealth” would seem to have reference to a situation in which a foreign corporation once registered had revoked, or attempted to revoke, its registration and its authorization to the Secretary of the Commonwealth to accept service of process for it: Kelly v. International C. P. Co., 291 Pa. 383.

However that may be, it is clear to the court that the defendant has liabilities outstanding against it in the Commonwealth. The depositions show that under its contract with the Waverly Oil Works Company, a Pennsylvania corporation, defendant is now and has been over a year engaged in the construction and erection of a cracking plant in this State, which plant defendant is under liability to complete in accordance with the contract. Defendant has employed labor in Pennsylvania for a long period of time, so that it may have outstanding liabilities under the Pennsylvania Workmen’s Compensation Act of 1915. Under defendant’s contract with the Atlantic Refining Company, a Pennsylvania corporation, fo'r the erection and construction of a cracking plant in Pittsburgh, dated Oct. 4, 1927. defendant is still liable on its guarantee there as follows: “Paragraph 10th. Defective Material. The contractor (i e., The M. W. Kellogg Company) will replace at its own expense for a period of one year from the date of completion and acceptance of work under this contract all material used therein which may prove to be defective, or make such repairs as may be necessary to remedy such defects.”

During the last five years defendant has erected from fifteen to twenty chimneys in Pennsylvania, on every one of which defendant has an outstanding liability under the following guarantee contained in the contract for the erection of each chimney: “We guarantee the chimney to withstand a wind velocity of 100 miles per hour, the action of weather and their gases of combustion and a temperature of 800 degrees P. Within a period of five years from date of completion, any defect in the chimney due to these causes or to faulty design, workmanship or materials will be repaired at our expense.” For chimneys to be erected by it, defendant has had brick manufactured in Pennsylvania, which brick at the time the writ in this case was issued and served the defendant had an outstanding liability to take and pay for.

Under the contract between plaintiff and defendant, defendant has liability outstanding in Pennsylvania aside from the fact that suit is brought here, for the contract contemplates performance of some of its provisions at least in Pennsylvania. Payments by defendant are to be made in Philadelphia. The contract provides, also, that all communications are to be directed by defendant to plaintiff at the Bellevue Court Building, Philadelphia.

While the court does not consider it material, it may be said that the contract in suit was executed by defendant at New York, sent to plaintiff in Philadelphia and there accepted and executed by plaintiff, as shown by the acknowledgments thereto. It was, therefore, a Pennsylvania contract with some of its provisions to be performed in Pennsylvania, though this is really immaterial: Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co., 243 U. S. 93, 94.

After stating the general rule of the right of non-residents to sue in our State, the court, in Knight v. West Jersey R. R. Co., supra, added: “A court having jurisdiction of the subject may acquire jurisdiction of the person by lawful service of its process.”

The suit in this case is filed by a foreign corporation duly registered in this State, with an established office in Philadelphia County. The suit is on a contract which contains no jurisdictional limitation as to any action thereon. The action is, therefore, transitory. The defendant, also a foreign corporation, has been registered as such in this State for a number of years, during which it has been doing business in the State, and has filed returns with the Auditor General admitting the employment of part of its capital in this State. The sheriff’s return shows that the writ issued in the case and a copy of the plaintiff’s statement of claim were properly served on the Secretary of the Commonwealth authorized by the defendant to accept such service for and on its behalf.

In all these circumstances the court can find no merit in any of the defendant’s contentions. Indeed, the Supreme Court of Oregon, in a very recent case, Winslow Lumber Co. v. Edward Hines Lumber Co., not yet officially reported, but reference to which may be found in the Corporation Journal of June, 1928, volume viii, No. 165, at page 208, sustained the service of a writ and jurisdiction of the court where the action was by a Washington corporation against an Illinois corporation on a contract made and performed elsewhere than in Oregon, and neither corporation was licensed to do business in Oregon. Though the business of the defendant in that case was interstate in character, and such that an Oregon license would not be required, nevertheless, a substantial part of its business, the buying and selling of lumber being done in Oregon and having an employee in charge of an office located in Oregon to transact his business, though interstate business, it was amenable to the courts of that state if proper service could be made upon it, the court holding that service on its admitted representative in that state was sufficient.

The rule to set aside the service of the summons and statement of claim and to quash the writ was properly discharged.