author: Finletter, P. J.,

text:
    Holmes v. Dravo Contracting Company et al.

      G. E. Dickerson, for plaintiff; Ralph H. Behney, for defendants.
    Dec. 22, 1928.
   Finletter, P. J.,

On Feb. 12,1918, claimant, while at work for the defendant, sustained certain injuries. Shortly afterwards, he and his employer entered into an agreement providing for compensation; under this agreement payments were made for thirteen weeks. Claimant then signed a final receipt. On Dec. 29, 1923, the agreement was, on petition, reinstated. Payments under it were resumed and continued to be made until Sept. 27, 1927, a period of 209 weeks.

On Sept. 27, 1927, 500 weeks had elapsed since the accident.

A petition to terminate compensation was granted by the referee, whose action was affirmed by the board on the theory that the period of liability commenced ten days after the accident and ran thence continuously without regard to the fact that payment had been suspended.

The appellant workman contends that he is entitled to 500 weeks of payment.

The question is one of interpretation of the statute.

Its provisions, section 306 of the Act of June 2, 1915, P. L. 736, 742, are “The following schedule of compensation is hereby established for injuries resulting in total disability: (a) For the first 500 weeks, after the fourteenth day of total disability, fifty per centum of the wages.”

This was amended by the Act of June 26, 1919, P. L. 642, changing the date of commencement of liability to “the tenth day of total disability.” Both acts provide: “Should partial disability be followed by total disability, the period of 500 weeks mentioned in this clause of this section shall be reduced by the number of weeks during which compensation was paid for such partial disability.”

The claimant resists the employer’s petition to terminate compensation, alleging that he has become, since the reinstatement of his contract, totally disabled. If so, it may be that he is entitled to further compensation, depending on the facts and the interpretation of the statute.

It is conceivable that one may receive a hurt during employment which results in no present disability at all, but which may later produce either partial or total disability. Or a partial disability may immediately follow with no further consequences. Or a total disability may be the immediate consequence. Or an immediate partial disability may later develop into a total one. Or a partial disability may be followed by a period of apparent recovery, or at least of temporary full capacity for work, only to end after an interval in total disability.

These contingencies, no doubt, were in the contemplation of the legislature, for it provides that “should partial disability be followed by total disability, the period of 500 weeks (of liability to compensation for total disability) shall be reduced by the number of weeks during which compensation was paid for such partial disability.”

It is plain, we think, that compensation for total disability commences “on the tenth day of total disability” and continues for 500 weeks from that date. If it was preceded by partial disability, the amendment deducts from this 500 weeks, not the period during which partial disability existed, but the period during which “compensation was paid for such partial disability.” “Total disability,” or rather ten days thereafter, is fixed' as the point of commencement of the running of the time. It is not the “date of the accident” or the date of “partial disability,” but the date of “total disability” which the statute provides shall be the point of departure. We need not discuss the reasons for the provision. It is within the power of the legislature. There is no uncertainty about the words. And the time selected, that is, the beginning of total disability, would seem to be the logical time for beginning payment therefor.

It is plain that as late as the date of this finding the claimant had not suffered total disability. The period of 500 weeks from the “tenth day of total disability” had not yet commenced.

The referee has found in his finding dated March 29', 1924, that “The claimant is able to do some form of work which would require him to be on the ground and would not be hazardous to him when he receives one of his epileptic attacks. The referee, therefore, finds that he has a partial disability.”

Whether it ever commenced, that is, whether the claimant was ever totally disabled, has not been determined.

Evidently, total disability was not the immediate result of the injuries, for the parties, employer and workman, mutually agreed upon the cessation of compensation thirteen weeks after the accident, and the claimant was able to work, and actually resumed it, and kept at it for several months. But we need not discuss this subject, because the referee has expressly found the disability to be only partial as late as March 29, 1924.

We are of opinion that the case must go back to the Workmen’s Compensation Board to permit the determination of the question whether or not there was a total disability, and if so, when did it arise? and that the claimant is entitled to compensation for a period of 500 weeks commencing ten days after such total disability, reduced by the periods of 13 weeks and 209 weeks, during which he received compensation for partial disability.

NOTE. — Syllabus by the Court.


source: Caselaw Access Project

author: Martin, P. J.,

license: Public Domain

text:
    P. Weinstein Building and Loan Ass’n v. Fleisher Brothers.

      O. Rosenbaum, for plaintiff.
    June 26, 1928.
   Martin, P. J.,

Judgment was entered on a bond accompanying a mortgage executed by defendants. A rule was granted to show cause why the judgment should not be opened. An answer was filed to the petition for the rule. Depositions were taken, and the rule to open the judgment was discharged.

Defendants were afforded every opportunity to present any defense they might have to the judgmént. They did not take the witness-stand for reasons best known to themselves. To afford them another opportunity to testify at this time, after the case has been decided against them, would put a premium on perjury. The question is res adjudicaba. The petition is refused.

The petition now presented on behalf of defendants avers that, by error of the attorney, the defendants were not called as witnesses to deny the assertions contained in the answer of plaintiff. The petition prays that the rule to open judgment be reinstated and the defendants be permitted to supplement their depositions.


author: Steakne, J.,

text:
    Cooper’s Estate.

      E. Spencer Miller, for exceptant.

      Desmond J. McTighe, Clinton A. Sowers and Horace M. Rumsey, contra.
    Jan. 4, 1929.
   Steakne, J.,

The question before us is whether counsel fees paid in a partition proceeding to an attorney other than counsel for petitioner may be taxed as part of the costs. Exceptant, a respondent, after the proceedings were allowed to lie in abeyance for a considerable time, became active and pressed the matter to a final conclusion. He contends that, upon the inactivity, procrastination and virtual abandonment of the proceedings by the original petitioner, he himself became the real and effective petitioner within the meaning and intent of the Partition Acts, because of his diligence in expediting and concluding the cause.

It is to be noted, however, that the petitioner already presented his claim for counsel fees, which was allowed and taxed as part of the costs. To tax an additional counsel fee as part of the costs to another party in the proceeding requires legislative authority or judicial sanction.

The Partition Act of April 27,1864, § 1, P. L. 641, re-enacted by the Orphans’ Court Partition Act of June 7, 1917, § 35 (a), P. L. 337, provides: “The costs . . . with a reasonable allowance to the . . . petitioners for counsel fees to be taxed by the court, or under its direction, shall be paid by all parties in proportion to their several interests.”

It is to be noted that such counsel fees are to be considered costs- in the proceeding. Such counsel fees are not such as are allowed in settlement of estates, etc., under broad equitable principles. Their source is derived from statutory enactment. It has always been considered (Grubbs’ Appeals, 82 Pa. page 29) that the services for the performance of which the statute was made to provide were searches, formal motions, the preparation of papers and conveyancing — in a word, for such professional duties as would probably enter into the bill of costs of an attorney under the English practice. See Kujack’s Estate, 4 D. & C. 414. Statutes relating to costs are strictly construed: Hoover v. School District, 4 Pa. C. C. Reps. 520; In re Braintrim School District, 23 Pa. C. C. Reps. 510; Arnold v. McKelvey, 26 Dist. R. 718; Stewart v. Baldwin, 1 Penrose & Watts, 461; Stillwell v. Smith’s Exec’rs, 17 Dist. R. 502; Lewis v. England, 4 Binney, 13. To recover costs requires a statute specifically granting such right: Bressler’s Petition, 6 Dist. R. 656; Caldwell v. Miller, 46 Pa. 233; Heath v. Walton, 9 Dist. R. 218; Hoedt v. Hoedt, 60 Pa. Superior Ct. 5.

Counsel fees in partition are allowed as part of the costs: Building Ass’n v. Bank, 142 Pa. 121; Snyder’s Appeal, 54 Pa. 67; Kujack’s Estate, supra.

It has always been considered that it is the petitioner, and the petitioner alone, who is entitled to an allowance of such counsel fees: Campbell’s Estate, 13 W. N. C. 144; Biles’s Appeal, 119 Pa. 105. It has been held that the court has no authority to making allowance for fees for counsel employed by any of the respondents: Culp’s Estate, 26 W. N. C. 78; Campbell’s Estate, supra.

This rule prevails though the respondent actually favored the partition and aided in the proceeding: Bile’s Appeal, supra; Campbell’s Estate, supra; Williams’s Estate, 14 Pitts. L. J. 311; Hummel’s Appeal, 2 Cent. Rep. 346; Trickett on Partition (Ed., 1900), 223; Carey’s Estate, 10 Kulp, 227.

Upon broad equitable grounds it seems a hardship to deny counsel fees to a respondent who actively pressed the partition suit to a final conclusion. Unfortunately for exceptant, however, his claim is not based on equitable principles, but upon the provisions of the act of assembly. We are of opinion that because the exceptant’s status is not within the provisions of the act of assembly, the ruling of the Auditing Judge was clearly correct, and, accordingly, the exceptions are dismissed.


author: Patterson, P. J.,

text:
    Com. ex rel. v. Logan Township School Directors et al.

      J. Lee Plummer, for plaintiff; David B. Perry, for defendants.
    July 26, 1928.
   Patterson, P. J.,

On petition of Walter B. Seward, duly elected collector of taxes of Logan Township School District, a writ of alternative mandamus was awarded on said defendants. Defendants’ motion to quash said writ was duly filed and argued by the respective counsel, and is now before us for consideration, judgment and decree.

The plaintiff in his petition sets forth that the directors of the school district, defendants, refuse to pass upon certain exonerations which the plaintiff claims he is entitled to under the law governing the collection of taxes. It is averred, and not denied, that the plaintiff, as collector of taxes for the years 1923, 1924 and 1925, was furnished the tax duplicates for the collection of school taxes by the said defendant board. And it is further averred, and not denied, that the plaintiff has filed with the said school board, defendants, his claim for certain exonerations for the years 1923, 1924 and 1925, with the request that the defendants consider and act upon said claims, and that they, the defendants, have neglected and refused to act upon the same. The question of law, therefore, to be considered in disposing of the motion to quash is whether or not a school board is bound to act upon such exonerations, not whether such exoneration as claimed by the collector shall be allowed, but whether or not it is mandatory upon such board to act upon and either allow or refuse the same.

Section 559 of the School Code of May 18, 1911, P. L. 309, provides that the tax collector shall “fully account for and pay over to the treasurer of the school district the total amount of the taxes appearing upon his duplicate, . . . less such amount as he may be exonerated from by the board of school directors.” The foregoing language is almost identical with that of the Act of June 25, 1885, P. L. 187, and said act, in part, being as follows: “Exonerations may be made by the authorities and in the same manner as heretofore.” And in construing that act, the Supreme Court, in the case of Jones v. Sharon Borough, 238 Pa. 35, says: “From time immemorial, as is known to all of us, the power to exonerate collectors from liability for uncollected taxes for reasons satisfactory to the taxing authorities has been exercised by borough councils, and, in the absence of any statutory prohibition of the exercise of this power, impliedly recognized by the Act of 1885, we shall not say it does not exist.”

And in the case of Dunmore Borough v. Dempsey, 280 Pa. 190, it is held: “Furthermore, the right of a borough council to grant exonerations from liability for certain taxes is recognized in the Act of June 25, 1885, P. L. 187, and settled by the case of Jones v. Sharon Borough, 238 Pa. 35.”

In considering this motion, it is necessary to distinguish between the duty of the school board to receive, hear, consider and act upon such claims for exonerations as the tax collector may present, on the one hand, and the discretionary power of said board to accept or refuse such claims for exonerations. We are of the opinion that if the plaintiff were seeking a mandamus to compel the defendant school board to allow certain exonerations which he claims he is entitled to, a mandamus proceeding would not lie, but in the present case the petitioner seeks only to have the board act upon his claim for exoneration — a duty clearly imposed upon said board by act of assembly hereinbefore referred to, and there is no law that we can find which will permit a board of school directors or a town council to arbitrarily deny a tax collector the right to have his exonerations passed upon. This procedure is the only one provided by law whereby collectors and school boards may arrive at a full and complete settlement of the amount due said district from the tax collector on the tax duplicates. The school board could not call upon the tax collector for final settlement; neither can the tax collector close accounts with the school board until the school board acts upon the claim of the collector for exoneration. We do not attempt to say that all exonerations claimed must be allowed, but the duty of action on the part of the school board is clearly established by law, and, in our judgment, is mandatory and not directory, and mandamus is the proper remedy to compel the directors to so act.

This conclusion is further supported in the case of Rowley v. Greenville Borough School District, 40 Pa. C. C. Reps. 140: “It is to be noted that the obligation thus imposed upon the collector of taxes is not, as stated in the defendant’s return to the alternative writ in this case, to pay over the total amount of school taxes appearing upon the duplicates furnished to them, on or before June 1st of each year, but the obligation is only to pay over said amount, less the items mentioned, for which he may be entitled to receive credit. As to these items of credit, the act clearly provides that the exonerations are to be allowed by the board of school directors, and it just as clearly implies that the amount to be allowed as credits for the taxes levied against real estate upon which there is no personal property out of which said taxes could have been collected is a matter for adjustment and settlement between the board of school directors and the collector. Hence, no duplicate could be finally settled until such matters had been adjusted and it had thus been determined what amount, if any, is due from the collector:” Com. v. Titusville School District, 41 Pa. C. C. Reps. 292; Scranton City School Directors, 6 D. & C. 105; Black v. Duquesne Borough School District, 239 Pa. 96.

The motion to quash is, therefore, refused and the defendant allowed fifteen days to file its answer to plaintiff’s petition.

From Robt. W. Smith, Hollidaysburg, Pa.


author: Wickersham, J.,

text:
    Begelfer v. Rhoads.

      Wickersham & Neely, for plaintiff; S. Duncan Wylie, for defendant.
    Oct. 3, 1928.
   Wickersham, J.,

In his amended bill the plaintiff sets forth, inter alia, that he is the owner of a certain tract of land, situated in the City of Harrisburg; that in 1922 he borrowed from the defendant $22,000, giving in payment therefor his mortgage and accompanying bond, payable five years from the date thereof; that the plaintiff paid to the defendant, periodically, quarterly instalments of interest on the full sum of $22,000; that the plaintiff, notwithstanding the fact that he gave a mortgage to the defendant for $22,000, received from the defendant only $20,000, the defendant charging said plaintiff a bonus of $2000 for the loan of the money secured by the mortgage and bond; that because of pressing claims of creditors, the plaintiff was compelled to receive only the sum of $20,000 as the proceeds of the mortgage; that the plaintiff sold the properties described in the mortgage, but the vendee did not assume and agree to pay the amount due thereon; that by reason of the non-assumption of the payment of the indebtedness secured by said mortgage, the plaintiff became liable to pay said defendant, and unless relief is granted to him in this proceeding, he will be obliged to pay the said sum of $2000 charged as a bonus; that no scire facias has been issued upon said mortgage and the defendant has not obtained judgment on his bond. The plaintiff, alleging he has no adequate remedy at law, prays for equitable relief. A copy of the mortgage is attached to the plaintiff’s bill of complaint.

The defendant filed his answer, setting forth preliminary objections to the amended bill of complaint under Rule No. 48 of the Rules of Equity Practice adopted by the Supreme Court.

The defendant’s first preliminary objection is that “the plaintiff is not entitled to equitable relief, and if he is entitled to any relief, it is at law, where a full, complete and adequate remedy may be had.” It is not alleged in the bill of complaint that the mortgage was obtained by fraud, accident or mistake, the only claim being that there was usury in the loan.

The rate of interest and the law relating to usury in Pennsylvania is governed by the Act of Assembly approved May 28, 1858, P. L. 622, which provides:

“Section 1. . . . That the lawful rate of interest for the loan or use of money, in all cases where no express contract shall have been made for a less rate, shall be six per cent, per annum; and the first and second sections of the act passed second March, one thousand seven hundred and twenty-three, entitled ‘An Act to reduce the interest of money from eight to six per cent, per annum,’ be and the same is hereby repealed.

“Section 2. That when a rate of interest for the loan or use of money, exceeding that established by law, shall have been reserved or contracted for, the borrower or debtor shall not be required to pay to the creditor the excess over the legal rate; and it shall be lawful for such borrower or debtor, at his option, to retain and deduct such excess from the amount of any such debt; and in all cases where any borrower or debtor shall heretofore, or hereafter, have voluntarily paid the whole debt or sum loaned, together with interest exceeding the lawful rate, no action to recover back any such excess shall be sustained in any court of this Commonwealth, unless the same shall have been commenced within six months from and after the time of such payment: Provided always, That nothing in this act shall affect the holders of negotiable paper, taken bona fide in the usual course of business.”

This act has been interpreted by many decisions, from some of which we will quote. In Heath v. Page, 63 Pa. 108, it was held: “Excess of interest over 6 per cent, is the money of the borrower, which, when received by the lender, he cannot retain, but holds for the use of the borrower, and assumpsit will lie for it.”

The Act of 1858 was passed to regulate the rate of interest among the people and to change the odious system of forfeitures existing under the old law. Under the new act, any lender may receive more than 6 per cent, interest without any penalty or forfeiture, subject only to have it recouped or reclaimed by the payor. If this be not done, the party receiving the interest can hold it lawfully: Bosler v. Rheem, 72 Pa. 54, 56. The Act of May 28, 1858 (Usury), applies only to the parties to the transaction, it being at the election of the borrower whether he will withhold the excess or recover it back within the time limited: Miners’ Trust Co. v. Roseberry, 81 Pa. 309. A man who has, in good faith, contracted to pay more than 6 per cent, has committed no violation of any law and is not bound to repudiate his contract. The Act of May 28, 1858, P. L. 622, made a radical change in the law, but the adjudications under the former statute were not quickly effaced from the judicial mind: Lennig’s Appeal, 93 Pa. 301, 305, 307. When there is a payment of usurious interest for the forbearance of a loan or debt, the right to retain and deduct such excess continues until the whole is paid. It is only when the whole amount and illegal interest has been voluntarily paid that no suit to recover it back will lie after six months: Rutherford v. Boyer, 84 Pa. 347, 349; Appeal of Second National Bank of Titusville, 96 Pa. 460, 463. The fact that a debtor voluntarily paid more than 6 per cent, interest, and made a settlement on that basis, does not preclude him from setting up the defense of usury to an action brought to enforce such settlement: Marr v. Marr, 110 Pa. 60; Assigned Estate of Selser and Brother, 141 Pa. 529; Stayton v. Riddle, 114 Pa. 464. Under the old statute, as under the English statutes, usury consisted in taking more than the legal rate of interest for the loan of money, and was, in some sort, a public offense punishable by an action qui tam. Commenting upon the Act of 1858, it was said by Mr. Justice Paxson in Appeal of Second National Bank of Titusville, supra: “At that time the taking of more than six per cent, interest was unlawful, and subjected the lender to a penalty. It -is not so now. ... It is not, therefore, now unlawful for a debtor to pay and a creditor to receive more than six per cent.”

Quoting from Montague v. McDowell, 99 Pa. 265, Mr. Justice Sharswood said: “It is to be remembered in all discussions upon the subject of interest that what used to be and still is called usury is not now unlawful in this State — as it was prior to 1858.” See Com. v. Hill, 46 Pa. Superior Ct. 505, 508, 509; Stout v. Stern, 89 Pa. Superior Ct. 479.

We think, therefore, that the plaintiff in this case has a complete and adequate remedy under said Act of May 28, 1858, and his rights were not in any way impaired by his conveyance of the property covered by the lien of the mortgage. He still has his remedy. If the defendant seeks to collect the mortgage from him by scire facias, he may defend upon the ground that $2000 of the mortgage was charged as a bonus and, therefore, usurious; if the defendant should file his bond and attempt to collect upon it from the plaintiff, the court, on proper proceedings, would open the judgment in order to allow the defendant to defend as provided in the Act of 1858: Reap v. Battle, 155 Pa. 265.

We think equity should not assume jurisdiction of this case merely because of the presence of usury in the transaction involved, since usury is not regarded as an equitable defense and ordinarily a defense at law is adequate to prevent the enforcement of a usurious obligation. There must be other circumstances present that embarrass or prevent an adequate remedy at law or there must be some other distinctive ground of equitable jurisdiction: 39 Cyc., 1009, 27 Ruling Case Law, § 66, page 263, wherein it is stated: “A court of equity has jurisdiction to grant relief against a usurious contract only where there are circumstances connected with the transaction, aside from mere usurious agreement, which call for the interposition of the court on account of the inadequacy of the powers of a court of law to grant full and complete relief. A court of equity has, however, jurisdiction to grant a borrower relief against a usurious contract when he has no adequate remedy at law or where there are other circumstances requiring the intervention of equity.” See, also, Atkinson v. Allen, 71 Fed. Repr. 58. We think the act of assembly provides an adequate remedy at law.

We fail to discover other circumstances present in this record that will embarrass or prevent the plaintiff from exercising the remedy provided him by law and, therefore, we conclude, and so hold, that the plaintiff has failed to establish that he is without adequate remedy at law and is entitled to appeal to equity for relief. Being of this opinion, it is not necessary for us to discuss at any length the other contentions of the defendant. We will refer to them very briefly.

The second objection on the part of the defendant to the plaintiff’s bill of complaint is that it prays “for an injunction and the reformation of a written instrument and does not allege in said bill of complaint that there was any fraud, accident or mistake in the creation of said instrument.” We think, this contention is sound and must prevail. A deed may not be reformed unless there is in the bill an averment of fraud, accident or mistake in the making of it or of facts in which the fraud, accident or mistake would necessarily be implied: Doyle v. Hollenback, 121 Pa. 322; Gump’s Appeal, 65 Pa. 476.

The third objection on the part of the defendant to plaintiff’s bill is that it prays for “an injunction and discovery and affirmative equitable aid in being released from liability on his bond or obligation for the payment of money which is past due, without making any tender or offer in said bill of complaint to pay the sum of money with legal interest, admitted in said bill of complaint to be due.” What is there that the plaintiff seeks to discover? He knows, according to the allegations contained in his amended bill of complaint, that he paid $2000 bonus to secure the loan; he knows that he paid interest on this $2000 and alleges that it is usurious. What else is there in the case which he desires to discover? All that he owes to the defendant is the amount which he borrowed with legal interest. We fail to fin,d .-anything else which the plaintiff could possibly discover, and, therefore, are ;o£-.the opinion that he is not entitled to equitable relief on this ground.

Counsel for plaintiff relies very largely, in support of his several contentions, upon the decision of the Supreme Court in Duquesne Bank’s Appeal, 74 Pa. 426. The ruling in that case has not been followed. We have quoted many cases in the early part of this opinion to demonstrate that the Supreme Court places an entirely different construction upon the Act of 1858 from the ruling in the Duquesne Bank’s case; we cannot regard this case as authority to sustain plaintiff’s contention.

We are not satisfied that the plaintiff is guilty of laches in delaying for more than six years in bringing his bill of,complaint; however, we think this contention is not important, in view of the opinion which we have already expressed.

Decree. — The amended bill of complaint of the plaintiff is, therefore, dismissed ; the plaintiff to pay the costs of these proceedings.

From Homer. L. Kreider, Harrisburg, Pa.


author: Stewart, P. J.,

text:
    Roach’s Estate.

      Taylor & McCarthy, for petition; Dillinger & Schneller, for respondent.
    March 5, 1928.
   Stewart, P. J.,

This is a petition of review under section 48 of the Fiduciaries Act of June 7, 1917, P. L. 447. The petition sets out in detail all the facts connected with the settlement of this estate. In the fourth paragraph it sets out specifically that exceptions were filed to the account covering the subject-matter afterwards passed on by the auditor and by the court, and in the seventeenth paragraph it is specifically averred that by a parol agreement between counsel the matter that was passed on by the auditor was to be (before the appointment of an auditor) raised by the filing of a petition for an auditor, and an answer that the same was not necessary so that the legal question could be determined by the court, and that, in violation of said agreement, counsel for the exceptant asked for the- appointment of an auditor. An answer was filed denying that oral agreement. No replication was filed to the answer, and we are again met with the situation, the legal effect of which we have often called attention to. See Russell’s Administrator’s Appeal, 34 Pa. 258; Priestley’s Appeal, 127 Pa. 420, and Long’s Estate, 168 Pa. 341. No depositions were taken, and, under the view of the learned counsel for the petitioner, the present matter is not one of pleading, nor is it one of evidence. They consider that, under the Fiduciaries Act, the application is a matter of right. No application to the auditor to place the costs on the exceptant was ever made, and no exception to his placing the costs on the estate was filed. We have only called attention to the pleadings to show that, before any expense was incurred, the learned counsel for the petitioner had in their minds the same position that they are now taking, that this estate ought not to be compelled to pay the costs of the audit, but that position nowhere appears on the record until this present application for a review. The matter could have been raised by an application to vacate the appointment of the auditor, or it could be raised by an exception to the report of the auditor imposing the costs on the estate. In the three cases cited by the learned counsel for the petitioner, Sharp’s Estate, 1 Lehigh Val. Repr. 228; Gauff’s Estate, 2 Lehigh Val. Repr. 245, and Grollman’s Estate (No. 2), 273 Pa. 565, the matter was raised by exceptions. In the last case the request was made directly to the auditor to place the costs on the accountant. That was overruled, and an exception thereto was dismissed by the Orphans’ Court, and from its refusal to sustain it an appeal was taken to the Supreme Court. (See page 567.)

The exceptions in this case were dismissed in an opinion filed by us on Jan. 3, 1927, and the auditor’s report was confirmed absolutely. See 20 Northamp. Co. Repr. 356. The present proceeding was not filed until May 31, 1927. Tested by the well-known principles applicable to bills of review prior to the passage of the Fiduciaries Act of 1917, the petitioner would have no standing. It is true that in the cases cited by counsel for the petitioner, Sloan’s Estate, 254 Pa. 346, and Chappell’s Estate, 264 Pa. 486, it is held: “The orphans’ court has power not only under the Act of Oct. 13, 1840, P. L. (1840) 1, but under its inherent power, to correct an erroneous decree. Under such power it may even protect parties from their own mistakes and blunders where no rights have changed in consequence of the decree.” Substituting the Fiduciaries Act for the Act of Oct. 13, 1840, the same principle would apply, but even adopting the language just quoted, does equity, which, after all, is the guiding principle in Orphans’ Court applications of this kind, require us to act where the result would work inequitably? If this matter had been promptly brought to the attention of the claimant, he might not have proceeded with his claim, and if it had been done in the way suggested in the seventeenth paragraph, swpra,, there would have been no costs. In certain cases, the maxim “Interest reipubliese ut sit finis litium” has been applied. In Scott’s Appeal, 112 Pa. 427, it is said: “There is no allegation of after-discovered evidence which they could not have produced at the original adjudication. There is only the allegation that they did not attend to their business because it was inconvenient to do so. This is not sufficient. They cannot have a solemn adjudication opened and the public time consumed for such a reason. Something is due to the finality of judicial proceedings.” To the same effect is Priestley’s Appeal, 127 Pa. 420. The maxim should be applied in this case, unless the 48th section of the Fiduciaries Act makes it mandatory on us to grant the petition. In addition to the cases cited by counsel, we have examined a number of decisions upon the subject, especially the opinion of Mr. Justice Sadler and the dissenting opinion sf Mr. Chief Justice Moschzisker in Willing’s Estate, 288 Pa. 337. The syllabus fairly states what was decided by the majority of the court, as follows: “The Fiduciaries Act of June 7, 1917, P. L. 447, broadens the power conferred on the orphans’ court by the Act of October 13, 1840, P. L. (1841) 1, to grant a bill of review. Under the Act of 1917, relief should be granted where justice and equity require and no one suffers thereby, and no longer should be limited, as a matter of right, to cases where errors of law appear on the face of the record or where new matters have arisen since the decree, and, as a matter of grace, upon subsequent discovery of new evidence as to facts upon which the decree was grounded which could not have been procured by the use of due diligence. Though the adjudication of an account becomes final and binds the parties as to what appears therein, unless later reviewed, still, to have such effect, it must properly call to the attention of the parties the specific matters to which they must object if dissatisfied." It is fair to deduce that if the items of the account had been specific enough to put the parties upon notice, they could not have had their review. It seems to have been conceded that the only matter before the court in that case was the determination of a legal question. In the prior case of Troutman’s Estate, 270 Pa. 310, where the Supreme Court reversed the lower court for not granting the review, Mr. Justice Simpson, on page 320, calls attention to the fact that two of the petitioners were in military service at the time of the audit, a third was preparing to enter the service, a fourth was a minor, and that their counsel was in military service in France. He then said: “In the stress of wartimes, during 1917, when these accounts were filed, adjudicated and confirmed, appellant and his brothers were admittedly engaged or about to be engaged in the duty of helping their country in its time of need; and, hence, under such circumstances, the court could, entirely aside from the act, have wisely exercised the inherent power which it possesses and granted the review (Sloan’s Estate, 254 Pa. 346), since, under the admitted facts, no one could possibly have suffered by its so doing. Of course, if the question at issue had beeen raised, contested and decided adversely, a petition of review could not be substituted for exceptions and an appeal; but it was not, and, under the Act of 1917, this would possibly be the only bar to the ‘shall grant a rehearing of so much of said . . . adjudication ... as is alleged to be error in said petition of review,’ where, as here, admittedly the estate has not been distributed and nobody can be injured by granting the relief sought.” In other words, the Supreme Court say that the words of the Fiduciaries Act will not apply “if the question at issue had been raised, contested and decided adversely,” but the important words of the 48th section are “give such relief as equity and justice may require.” Certainly, where counsel knew what their attitude with respect to the costs would be prior to the incurring of the costs, and where they never made any request before the auditor or the court to have them placed on the claimant, equity and justice will not require us to enable them to embark in new litigation, and this is the view that the Superior Court have taken of the matter in the late-case of Braum’s Estate, 90 Pa. Superior Ct. 448. Judge Trexler quoted the 48th section of the Act of 1917 in full, and reviewed Willing’s Estate and Troutman’s Estate, and then said: “The change in the law certainly does not compel the court to grant a review in every case. The grounds for a review must be stated in the petition, and, as stated above, when justice and equity require it, then the review is a matter of right. Certainly, the mere fact of asking for it does not settle the matter.” That Judge Trexler’s view is the proper one very plainly appears from a case reported since the argument, Bailey’s Estate, 291 Pa. 421. That case flatly decides that a review is not a matter of right. The syllabus is: “A review will be granted by the Orphans’ Court only in accordance with the general principles governing bills of review in ordinary equity practice. A review is a matter of right where the bill is founded on errors of law appearing on the face of the record, or where new matter has arisen since the confirmation of the decree, or where justice and equity require, and no one will be injured thereby. The court will not go into the evidence at large to establish or support an objection based on a supposed error or mistake made by the court in the deduction therefrom; nor will it retry a case. A bill of review will not be considered where the issues were raised, contested and decided, nor will it operate as an exception or an appeal. ... A review based on proof discovered since the decree or adjudication is not a matter of right, but rests in the sound discretion of the court. Such discretion is to be exercised cautiously and sparingly and only under .circumstances which demonstrate it to be indispensable to the merits and justice of the cause. The new evidence relied on should be such as would cause the court to enter a judgment other than already entered; it must appear that the evidence was not available, and that it could not have been discovered before the judgment by the exercise of reasonable diligence.” Each case must be governed by its circumstances, and for the reasons above given, we do not think that petitioner has made out a case.

And now, March 5, 1928, petition for a citation is dismissed.

Prom Henry D. Maxwell, Easton, Pa.


author: Bouton, P. J.,

text:
    Krise, Administrator, v. Lycoming Trust Co., Trustee, et al.

      S. T. McCormick, Jr., for plaintiff; J. G. Candor, for defendants.
    May 4, 1928.
   Bouton, P. J.,

48th judicial district, specially presiding,

It appears from the pleadings that Jonathan L. Hough, a minor, now deceased, had certain life insurance policies on his life in the various companies set forth in plaintiff’s bill; the original beneficiaries named in said policies were two brothers of the insured, Marshall L. Hough and Allison H. Hough, share and share alike.

It also appears that the said Jonathan L. Hough had at the time of his death personal property consisting of cash, stocks and bonds of various corporations, amounting in value from $150,000 to $160,000.

It further appears that the said Jonathan L. Hough, on or about Jan. 1, 1927, caused the beneficiary clause of the insurance policies to be changed by substituting the Lycoming Trust Company as beneficiary therein and entering into a certain insurance trust agreement with the said Lycoming Trust Company, authorizing the said trust company to receive and receipt for all sums of money becoming due under said policies and discharging the insurance companies from all liability therefor.

The said trust agreement provided then for the disposition of the said trust fund. The prayer of the bill is as follows:

“That a decree may be entered herein by your Honorable Court:

“(a) That the designation by the deceased minor, Jonathan L. Hough, of Lycoming Trust Company as beneficiary of the contracts of insurance recited in this Bill was and is invalid, ineffective "and void.

“(b) That the trust attempted to be created by the trust agreement is invalid, ineffective and void.

“(c) That the defendant, Lycoming Trust Company, Trustee, holds the insurance moneys collected by it as beneficiary of the life insurance contracts on the life of Jonathan L. Hough, in this Bill recited, under a resultant trust for the benefit of the plaintiff, as administrator of the Estate of Jonathan L. Hough, deceased.

“(d) That the said Lycoming Trust Company, defendant, be required to state an account of all principal moneys received by it as beneficiary of the contracts of insurance above recited and of the income received by said defendant from the investment of said funds, and be directed to pay the amount shown in its hands by said account to your orator, as administrator of the said Jonathan L. Hough.

“(e) That your orator may be granted such other and further equitable relief as the exigencies of the case may require and your Honorable Court may deem necessary and proper.”

From the bill and answer, we find the following facts, which are undisputed:

1. That Glynn L. Krise is the duly appointed, qualified and acting administrator of Jonathan L. Hough, late of the City of Williamsport, Pa.

2. That Lycoming Trust Company, defendant, is a corporation of the State of Pennsylvania, where it conducts a general banking and trust company business and is authorized by law to act in fiduciary capacities and to execute trusts.

3. That Lycoming Trust Company and Marshall L. Hough are the duly appointed, qualified and acting guardians of Allison H. Hough, a weak-minded person, who resides in the City of Williamsport, Pennsylvania.

4. That Marshall L. Hough and Helen Whitehead Hough, his wife, also reside in the City of Williamsport, Lycoming County, Pennsylvania.

5. That Jonathan L. Hough, plaintiff’s intestate, being at the time a resident of the City of Williamsport, Lycoming County, Pennsylvania, died on Aug. 28, 1927, and the plaintiff was duly appointed by the Register of Wills of Lycoming County as administrator of the estate of said decedent and duly qualified as such, and is now acting as such administrator.

6. That said decedent, Jonathan L. Hough, was born on Oct. 4, 1906, and at the date of his death was under the age of twenty-one years. Said decedent left to survive him as his heirs-at-law two brothers, said Marshall L. Hough, who is of full age, and said Allison H. Hough, who has been adjudged a weak-minded person.

7. That during several years prior to Jan. 5, 1927, said Jonathan L. Hough made application to various life insurance companies for life insurance on his life, and, in pursuance thereof, life insurance contracts were issued upon his life, the premiums due thereon from time to time being paid from said minor’s estate; the numbers of the policies, the names of the companies issuing the same and the amounts of said policies being set forth in plaintiff’s bill.

8. That all of said contracts- of insurance when issued named as beneficiaries thereof two brothers of the insured, the said Marshall L. Hough and the said Allison H. Hough, share and share alike, and all of said contracts of insurance contained the provision that the insured should have the privilege of changing the beneficiary at any time by complying with the rules of the company issuing the same.

9. On or about Jan. 1, 1927, said decedent was also possessed of personal property, consisting of cash, stocks and bonds of various corporations, amounting in value from $150,000 to $160,000.

10. On or about Jan. 1, 1927, the said Jonathan L. Hough, by appropriate action, caused the beneficiary clause of said insurance contracts to be changed by substituting said Lycoming Trust Company as beneficiary therein and entered into an agreement with said Lycoming Trust Company, stipulating the uses and purposes for which said insurance moneys should be held by the defendant after the maturity of said policies. Said uses and purposes are more fully set forth in the plaintiff’s bill.

11. That said decedent, on Dec. 31, 1926, executed a paper designated as his last will and testament, bequeathing all of his estate to his brother, Marshall L. Hough; said will being executed by the decedent while he was still a minor and his death occurring during his minority.

12. That immediately following the death of said Jonathan L. Hough, the Lycoming Trust Company filed with the companies issuing said insurance contracts the required proofs of death and made claim for the moneys due on said contracts of insurance, as beneficiary thereof, and said companies thereupon paid to the Lycoming Trust Company in settlement thereof a total of $140,945.69. The specific amount paid upon each of the policies is more fully set forth in plaintiff’s bill.

Two questions of law are raised in this case:

1. Was the designation by the said Jonathan L. Hough of the Lycoming Trust Company as beneficiary of said contracts of life insurance, made by him during his minority, valid?

2. Was the trust agreement entered into by Jonathan L. Hough with the said Lycoming Trust Company, having been made while he, the said Jonathan L. Hough, was a minor, valid and effective?

In the ease of Burst v. Weisenborn, 1 Pa. Superior Ct. 276, the court say:

“Designation of a beneficiary by a member of a benefit society is an act testamentary in its character and the same rules of construction apply as in the case of other testamentary writings.

“Where the contributory decedent was a minor, any designation by him of a beneficiary is voidable, and upon his death, while still a minor, the case must be treated as if no designation had been made.”

The conclusion in the above case seems to be based upon the principle that the designation of a beneficiary is an act testamentary in character, and this principle is approved in numerous cases cited therein.

Under section 1 of the Act of June 7, 1917, P. L. 403, known as the Wills Act, it is enacted in effect that no person under the age of twenty-one years may dispose of his real or personal property by will. The section of the act reads as follows: “Every person of sound mind and of the age of twenty-one years or upwards, whether married or single, may dispose by will of his or her real estate, whether such estate is held in fee simple or for.the life or lives of any other person or persons, and whether in severalty, joint tenancy or common, and also of his or her personal estate.”

It would, therefore, seem to follow that if an infant cannot make a will he could do no other act of testamentary character, such as making a valid designation of a beneficiary in life insurance policies issued to him, the premiums of which were paid out of his own estate.

The second question, as to whether the insurance trust contract is valid, seems to be without difficulty.

The rule stated in 31 Corpus Juris, at page 1033, is as follows: “A deed of trust executed by an infant is not binding on him. While in some jurisdictions, by force of statute, such deed is void, and such deed may also be void when it was procured fraudulently, ordinarily a deed of trust executed by an infant is merely voidable, and not absolutely void.”

The rule is also stated in Pedro v. Pedro, 127 N. Y. Supp. 997, as follows:

“An infant, executing a deed of trust for his benefit, may disaffirm it on reaching his majority, provided he exercises the right seasonably.

“An infant executed a deed of trust for his benefit. For a year after attaining full age he received the interest from the trustee in ignorance of his right to disaffirm the deed, but he accepted no income to which he was not entitled, regardless of the deed. Held, not to show a ratification of the deed after attaining full age.”

To the same effect is the case of Ownes v. Ownes, 23 N. J. Eq. 60.

The reason for this rule seems to be lack of legal discretion and capacity in the minor to enter into contracts affecting his estate. It will be noted, however, that the rule is that the trust agreement is not absolutely void, but voidable at the option of the minor, and upon attaining his majority he may either ratify or avoid the instrument.

There seems to be no conflict of authority that the right of an infant to void his contracts is a personal privilege, and in the case of his death such privilege is exercisable, in the case of real estate, by his privies in blood or heirs, and in the case of personal property, by his personal representatives.

“The right of an infant to avoid his contracts is a personal privilege of which no one can take advantage but the infant himself, or, in the case of his death, his privies in blood or heirs or personal representatives:” 31 Corpus Juris, 1066; Kuns’s Exec’rs v. Young, 34 Pa. 60; Hussey v. Jewett’s Exec’rs, 9 Mass. 100; Jefford’s Admin'rs v. Ringgold, 6 Ala. 544; Martin v. Mayo, 10 Mass. 136; The Ledger Bldg. Ass’n v. Cook et ux., 12 Phila. 434.

We are, therefore, of opinion that the designation of the beneficiary, the Lycoming Trust Company, in the policies of insurance issued upon the life of the said Jonathan L. Hough, being an act testamentary in character, was voidable and could be avoided by the legal representative of the said Jonathan L. Hough, and that as to the funds collected on the said policies, they belong to the administrator of his estate as though no designation of beneficiaries had ever been made in said policies.

We are also of opinion that the insurance trust agreement entered into by the said Jonathan L. Hough with the Lycoming Trust Company, having been made during the said Hough’s minority, was also voidable by the said Jonathan L. Hough, and that he having died during his minority, said contract may be voided by his legal representatives, who in this case is the plaintiff, Glynn L. Krise, administrator of his estate.

We are, therefore, of opinion that a decree should be entered in accordance-with the prayers (a), (b), (c) and (d) of the plaintiff’s bill.

And now, to wit, May 4, 1928, it is ordered, adjudged and decreed that a. decree be entered nisi by the prothonotary in accordance with above opinion, subject to exceptions sec. reg.

From Don M. Larrabee, Williamsport, Pa.


author: Saybrs, P. J.,

text:
    Byrne v. Williams.

      H. C. Sayers, Jr., for plaintiff; C. W. Waychoff, for defendant.
    May 14, 1928.
   Saybrs, P. J.,

The facts in this case as gleaned from the depositions are very meagre and poorly developed, and the exhibits recited in the depositions were not attached to them or submitted to the court. No brief was filed on behalf of plaintiff. From the depositions and such admissions as appear in the pleadings the court finds the following

Facts.

In 1923 the plaintiff was the owner of a lot in Greensboro Borough, Greene County, Pa., fronting on County Street, which runs through said borough from northwest toward the southeast (apparently about 40 degrees), and bounded in part on the northwest by Second Street, which intersected County Street at right angles. Seventy-four and one-half feet of the back of the lot in controversy fronted on Second Street. On Aug. 17, 1923, the plaintiff appears to have conveyed to R. M. Clovis a part of this lot at the southeast corner of the intersection of Second and County Streets, apparently fronting on County Street 24h feet, and extending northeast along Second Street a distance of 74 feet. The plaintiff, about Oct. 15, 1923, sold, and on Oct. 18, 1923, by deed, which appears as an exhibit in the petition to open judgment in this case, conveyed to defendant the lot described in said deed.

The description of the lot sold defendant begins at a point on County Street at the Clovis line and 5 feet northwest of the store building on the lot sold to defendant; from thence the line runs to the northeast along the Clovis lot 74 feet; thence northwest along the Clovis lot 24J feet to Second Street; thence in the same direction 74J feet along Second Street to lot of Eli Boone; thence southeast along lot of Boone 74J feet to lot of Dr. A. L. Eddy; thence by lot of Eddy southwest 1481 feet to County Street; thence northwest along County Street 50 feet to the beginning. There was on the lot a store building 24 feet wide, with a story above the storeroom, used in part by a lodge of Independent Americans. Apparently, there was another small frame building on the lot, of which we have neither location nor description.

The dwelling-house on the Eddy lot fronted on County Street and extended back along the southeast line of the lot conveyed to defendant, and was a brick building of some description.

In order to make the 50-foot front on County Street, the corner of the lot sold by plaintiff to defendant was pointed out as down on the Eddy house, according to various witnesses, from 2 to 9 feet, and this line would cut a strip off the Eddy house along the northwest side. This strip, to reconcile the testimony of all the witnesses, would be about 5 feet wide at the front on County Street. Nothing appears as to the width of the strip on the rear of the building, and there are no surveys exhibited to show any measurements or plan.

When the survey was made for the Clovis lot, plaintiff pointed out to Clovis the southwest corner of his whole lot as being down on the Eddy building at County Street 5i feet. That is the best evidence of the location of this corner by defendant’s witness. Dr. Eddy, who is interested, says this corner was 7 feet down on him, and that he had been in possession of his building about twenty-one years. He did not see the surveyor point out the mark which was chiseled on the sidewalk.

According to the surveyor who made a plan of the town for the borough council, quite a little property encroached on the lines of the streets and alleys in the borough, and, as a consequence, in surveying the lot sold by plaintiff to one Clovis, he relocated Second Street and the property-lines south of it intersecting County Street and moved them all south 5 or 6 feet, and, as a result of this relocation, the corner of the lot sold defendant was located by his survey about 5 feet over on the Eddy house. The borough council, of which plaintiff and Dr. Eddy were members, adopted the engineer’s plan as a working plan for the borough, and the survey in this case was made to conform to that plan.

That was the working plan or borough survey in effect when plaintiff sold the lot in suit to defendant. Defendant bought the lot on Oct. 15, 1923, and at the same time he bought with the lot the house, storeroom and goods (presumably belonging to defendant) for a lump sum of $9000. On that day plaintiff pointed out to defendant the location of the southeast line of his lot, cutting off from the Eddy lot and through the Eddy building a strip about 5 feet wide. They recognized that Eddy was in possession of this strip, and presumably knew that the relocated borough survey pushed the line down on Eddy.

When the location of the Eddy corner was pointed out to defendant before he got his deed, he stated that he knew where the corner was and he was satisfied; that he was relying on his general ^warranty deed and expected to get possession when he was ready for it; and he also said, that “if that is where the line went, I knew there would be no trouble with Dr. Eddy;” “I felt satisfied Dr. Eddy and me would get along without any trouble.” Later, he said, speaking of Dr. Eddy, “I knew he was in possession of it. I did not know he claimed it.”

The lump consideration for the store, stock of goods and lot was $9000, and when the deed was delivered defendant paid plaintiff $4000 in cash and gave him the judgment exemption note under seal for $5000, on which the judgment in this case was entered. Judgment was entered for $5000, Oct. 18, 1923, in the Common Pleas of Greene County on warrant and confession and defendant paid the entry fee. The note was payable one day after date, with interest, and recites that it is for balance of purchase money. The defendant says the note was for the balance of the $9000 paid in the trade for the house and lot purchased at the time the note was delivered. The fact that the note was for $5000 was discussed between them, and that the consideration in the deed was $4200 or less than the note given, defendant saying: “I told you that the value you had put on the property would look like an entry against the property for more than the deed called for.” Defendant stated, also, that he had other property against which the judgment would be a lien. The real estate evidently was sold for $4200, and the store goods were sold for the balance of $9000, or $4800. The judgment was to secure the balance of purchase money on both. The defendant says that $4200 was a very reasonable consideration for the house and lot.

The defendant paid $2000 on the judgment on Feb. 15, 1924, and $300 on Jan. 6, 1925. He says that sometime after he paid the $2000 he got a verbal notice from Dr. Eddy’s wife. “She came in one morning and asked me about this; I told her where this line was, and she told me I had better look my title up before I paid the rest of it.” There is nothing to indicate when this conversation or notice was with reference to the payment of Jan. 6, 1925, the presumption being that it was before that date.

Nothing was paid thereafter and execution issued on the judgment on Nov. 3, 1926, almost eleven months after the last payment was made, more than a year after defendant had notice his line might be disputed, more than three years after the judgment was entered and defendant went into possession of his property.

On Nov. 29, 1926, defendant petitioned to open the judgment, alleging that there was a failure of consideration by reason of plaintiff not having the quantity of ground in possession, which he described in his deed from 5 to 7 feet wide running back from County Street.

The defendant had notice of the adverse, actual, open and notorious possession of Dr. Eddy when he paid his money and took his deed. The defendant did finally what should have been done, and what he inquired about, when he paid his money, he measured the lot and found there was 5 feet between the Clovis line and the north line of the store building, that the building was 24 feet wide and that from the store buildings to Eddy’s house was 14 feet, making the width of the lot 43 feet in the clear or wider, depending on the proper location of the Clovis line. The defendant was not shown the corner on Second Street, and this was the important corner, the shifting of which by the borough survey probably gives rise to this whole controversy and dispute. The presumption is, if the possession of the original owners was on the old lines, defendant would have his fifty feet without disturbing the possession or lines of the Eddy lot.

According to the borough survey or working plan, Eddy should have shifted his line 5 or 7 feet, as the case may be, over on to his neighbor to the south, and then everything would be lovely and nobody harmed.

It is a fair presumption that defendant knew of the proposed or actual relocation of these lines when he bought his property and he was satisfied to take a chance that in this shift he would have no trouble with Dr. Eddy.

The plaintiff denies that the court has equitable power to open the judgment; avers the consideration for the lot was $4200 and that plaintiff never undertook to deliver possession of any part of the Eddy lot, and there was no fraud in the sale or delivery of possession; that the defendant has by his laches deprived himself of his right to have the judgment opened, and has made no offer to restore to the plaintiff the property described in the deed which he received for the consideration of the judgment, and prays that the rule to open should be discharged. There was no evidence of fraud in this transaction and no charge of it on the part of defendant. Both parties knew how the proposed shift in the south line of the lot was affected by the possession of Dr. Eddy and should have known the legal effect of such possession. Both were satisfied with the understanding they had of the matter and all the terms of their negotiations leading up to the sale, so far as they related to the real estate, were merged in the deed and purchase-money note involved in this transaction.

Law.

The defense offered in this case is failure of consideration. The seal on the note imports a consideration and creates a legal obligation. The following distinction between want of consideration and failure of consideration as affected by a simple contract or an instrument under seal is made by the Supreme Court in Candor and Henderson’s Appeal, 27 Pa. 119: “It is under seal and is found expressly to be a 'voluntary’ bond. The seal imports a consideration and created a legal obligation. In a ‘voluntary’ bond no consideration is contracted for or expected. The absence of one is, therefore, no ground for equitable relief from a contract conceded to be good at law without it. To say that the ‘want of consideration’ is a defense against a bond is to express, in language not remarkable for precision, nothing more than the familiar principle that where the obligor fails to receive the consideration contracted for, and on the faith of which he entered into the contract, he is not bound to pay his bond. This principle has no application whatever to the case before us, because no consideration was contracted for or expected. A voluntary bond, it is true, must be postponed until creditors are paid; but it is always good against the party himself and against heirs, legatees and others who stand in no higher equity: 2 Williams on Executors, 871; 3 P. Wms. 223; 2 Mylne & K. 769. In this respect a simple contract differs from a specialty. In the one case the party is not bound without a consideration: 5 T. R. 8; in the other, no consideration is necessary if none was contracted for: 17 John. Rep. 301.”

The money secured by the judgment in this case, or the balance now due, is part of the $4200 purchase money for the real estate.

“When, in point of fact, a valuable consideration is relied on to support a deed or contract, under seal or otherwise, it may be inquired into by parol, although the result of the admission of such evidence is to show that the consideration set forth in the writing is not the real one (Nichols v. Nichols, 133 Pa. 438, 454, 455), so long as nothing is permitted to be proved that is ‘directly inconsistent’ with the consideration named in the instrument itself (Buckley’s Appeal, 48 Pa. 491, 496; Lewis v. Brewster, 57 Pa. 410, 414; McGary v. McDermott, 207 Pa. 620, 623), or which directly changes the character of the writing or its covenants (Henry v. Zurflieh, 203 Pa. 440, 450); and, in cases of sealed instruments, while a plea of want of consideration ordinarily will not be heard (Burkholder v. Plank, 69 Pa. 225, 233; Cosgrove v. Cummings, 195 Pa. 497, 498; Clymer v. Groff, 220 Pa. 580, 583; Owens v. Wehrle, 14 Pa. Superior Ct. 536, 538), a failure of consideration may be shown, for this, instead of attempting to change the terms of the contract, gives a reason why it should not be carried out. In Yard v. Patton, 13 Pa. 278, 284, we said that the presence of a seal was more than mere ‘presumptive evidence’ of a consideration, but immediately added that ‘where an actual valuable consideration is intended to pass, and furnishes the motive for entering into a contract, a party may defeat it by showing failure of consideration at any time before its final execution.’ Meek v. Frantz, 171 Pa. 632, 638; Anderson v. Best, 176 Pa. 498, 500, and Dohan v. Yearicks, 253 Pa. 403, 405, all recognize failure of consideration as a defense to sealed instruments:” Piper v. Queeney, 282 Pa. 135, 142.

Nothing is more certain than that a judgment entered on warrant or by confession may be opened, at any time within reason, to permit a defendant to show failure of consideration.

“In reaching his conclusion, the learned judge overlooked the plaintiff’s position. The latter had a regular judgment, entered on a regular bond, to which there was no legal defense. Want of consideration is not a defense to a bond executed and delivered: Burkholder v. Plank, 69 Pa. 225; Rishel v. Crouse, 162 Pa. 3. Failure of consideration, however, is a ground of defense, because it raises an equity for relief which will be enforced in Pennsylvania even by courts of law:” Anderson v. Best, 176 Pa. 498, 500.

“Nothing appears to be better settled in this State, as well as elsewhere, than that to maintain an action upon a covenant of general warranty an actual eviction must be averred and proved. Not, indeed, that the party need wait to be actually turned out of possession by legal process, for he may surrender when the result is plainly inevitable. In one case, it was held that a judgment in ejectment by itself was not sufficient: Paul v. Witman, 3 W. & S. 407. All the cases agree that there must be a change of possession: Clarke v. McAnulty, 3 S. & R. 364; Stewart v. West, 14 Pa. 336; Dobbins v. Brown, 12 Pa. 75; Wilson v. Cochran, 46 Pa. 229. It is different where an action is brought to recover unpaid purchase money. There the defendant in Pennsylvania has always been allowed to set up as an equitable defense any outstanding better title actually asserted which would amount to a failure of consideration of the contract of purchase, whatever may be the actual covenants in the deed of conveyance. Such a defense was permitted originally because equity was always a part of the law of this State and the defendant could avail himself as a defense of whatever matter would entitle him to relief at the hands of a chancellor. That was the principle on which was decided Steinhauer v. Witman, 1 S. & R. 438, and the long train of authorities which have followed in its wake:” Knepper v. Kurtz, 58 Pa. 480, 484.

The defendant claims that the contract to convey was broken as soon as it was made, because plaintiff included in his conveyance a strip of ground not in his possession. If possession had been actually delivered, we could discharge this rule, and defendant could sue on the warranty in his deed when he was ousted of possession by a superior title. That is not this case, however. Here we have the actual adverse possession of the strip of land included in the deed pointed out to defendant before his deed was delivered, and, after he declared himself satisfied with the situation, he accepted the deed and gave the note for the purchase money. The situation as to the south property-line was explained to defendant, and he agreed to accept the deed and pay $4200> for the lot in that situation. Why should the judgment be opened to permit defendant to prove a failure of consideration when he understood at the time ' why possession of a fraction of the lot could not be delivered and was satisfied with that arrangement?

Is he not estopped from asserting failure of consideration under the circumstances, and especially three years after the transaction is closed, and a long time after he knew Eddy was not satisfied or did not agree that his boundary-line should be moved over on him? Defendant agreed to take his chances with Dr. Eddy when he gave his note, and now that the agreement between plaintiff and defendant to deliver and accept a deed for a strip of land of which defendant was visibly and actually out of possession at the time is not satisfactory to defendant, he claims failure of consideration pro tanto, asks to open the judgment and recover damages therefor without offering to restore the property to the plaintiff.

“It is unnecessary to cite authorities to prove that failure of title in part of the land sold affords a pro tanto defense against payment of purchase money, unless it plainly appears that the purchaser has taken the title at his own risk, for this principle is so manifestly just that it ought to be taken for granted; but, even if it needed the support of authority, it is abundantly sustained by the adjudications of this court. This rule is entirely consistent with the cases cited by the plaintiff in error to disprove it. Smith v. Evans, 6 Binn. 102; Boar v. McCormick, 1 S. & R. 166, and Dickinson v. Voorhees, 7 W. & S. 353, are not cases of failure of title, but of mistake and misdescription in the number of acres which the tracts, otherwise correctly described, were supposed to contain:” White v. Lowry, 27 Pa. 254, 256.

“The execution of a conveyance is the consummation of a purchase, after which the parties have no recourse to each other except for imposition or fraud. Such is the rule established by Bailey v. Snyder, 13 S. & R. 160, and several other cases, in which it was ruled that when a conveyance has been made without a survey and a bond taken for the purchase money, the contract is definitely closed, except where the actual quantity differs so grossly from the estimate as to be evidence of deceit:” Baker v. Barley, 34 Pa. Superior Ct. 169, 174.

All negotiations merged in the deed and purchase-money note. The defendant knew all about the circumstances relating to the location of the south line and the possession of Dr. Eddy.

“These instruments constituted the final agreement of the parties on the subject and are presumed to supersede any other agreement different therefrom, and are to be considered the obligation by which the parties consented to be bound. Crotzer v. Russell, 9 S. & R. 78; Moser v. Miller, 7 Watts, 156; Gangloff v. Smaltz, 18 Pa. Superior Ct. 460; Krueger v. Nicola, 205 Pa. 38, and many other cases, hold that the deed of conveyance being the last act of the parties overrules all previous agreements between them in any way contradictory thereto. . . . The defendant’s own evidence shows that he knew of the existence of the incumbrance and accepted the deed with knowledge of that fact. In order to avoid the effect of the obligation, it was incumbent on the defendant to prove fraud, accident or mistake in its execution, and to do that by clear, precise and indubitable evidence. The only evidence offered tending to vary the terms of the obligation or to relieve the defendant from its literal effect was the plaintiff’s testimony, and it falls far short of exhibiting grounds for equitable relief:” Buchanan v. Dawson, 34 Pa. Superior Ct. 400, 404.

In Dickinson v. Voorhees, 7 W. & S. 353, it appears that Voorhees conveyed to Dickinson several tracts of land, describing each tract in the deed as containing so many acres, aggregating 3225 acres, and took his bond for the purchase money. One tract on actual survey fell short 445 acres. It was held that this did not furnish the vendee with a* defense against the bond, the Supreme Court saying: “But still, notwithstanding, inasmuch as the parties afterwards carried into execution their contracts respectively, by the vendor, in making a deed of conveyance of the land to the vendee according to the extended quantity, without measuring the same, and the vendee’s giving to the vendor his bonds securing the payment of the purchase or balance of the purchase money according to the estimated or reputed quantity, it was held that the parties were bound by such execution of the contract, and that the vendee was thereby precluded afterwards from claiming an abatement of the amount for which he gave his bonds in the first case.”

In Rodgers v. Olshoffsky, 110 Pa. 147, there was a dispute arising out of the description of a lot conveyed, where certain lines on the ground were actually shorter than distances or measurements described in the deed. That part of the opinion of the Supreme Court peculiarly applicable to this case is here quoted at length: “The property is not described as a lot containing twenty feet in width on Main Street and extending northwardly of that width, but as a lot, two of the lines of which are twenty feet in length. It is alleged that these lines are, in reality, only eighteen and one-third feet long, and that, therefore, the plaintiff may recover from the defendant, his vendee, only so much of the purchase money as will be left after deducting an amount proportionate to the difference in quantity indicated by the difference in the length of these lines. There was no quantity of land stated in the description as being contained in the lot. There was no warranty either of the quantity of the land conveyed or of the correctness of the lines as described. The transaction was entirely closed by the execution, delivery and acceptance of a deed for the property, payment of part of the purchase money and delivery of a bond for the remainder. The purchaser, being examined as a witness on his own behalf, testified that he went to the property and looked at it before he bought it; that he looked the property over before he bought it; that there was a building on it; that he did not know the size of the building, paid no attention to it, merely bought the lot. He does not say that there was any specific representation made that the lot was twenty feet in width, or that he was induced to buy it upon the faith of its being of that width. . . . He [vendor] had bought the lot from Parsons as being twenty feet wide; his deed so described it. There is nothing to show that he knew that it was only eighteen and one-third feet wide. There is absolutely nothing to show that he practiced any fraud or deceit upon the defendant in regard to the width or anything else. The defendant had just as good opportunity as the plaintiff to ascertain the width of the lot. He could have measured it, but he did not see fit to do so; or he could have taken a warranty as to the quantity, but did not. It is impossible to find anything more in the testimony than a mistake which was mutual, with equal opportunities to both to correct it before closing the transaction. That this is not enough to open the contract and let either party in upon the other for redress after deed delivered and bond given for purchase money has been many times decided and is undoubted law in this State. In Cronister v. Cronister, 1 W. & S. 442, we held that, as between a vendor and a vendee of land, the acceptance of a deed and execution and delivery of bonds for the purchase money closes the question upon the agreement, merges it in the conveyance, and precludes the parties from afterwards claiming either, on the one side, an allowance for a deficiency in the land, or, on the other, payment for a surplus.”

We cannot hold in this case that laches alone is sufficient to defeat defendant’s claim, but his delay, coupled with the other circumstances in the case, does not add strength to his appeal to the equitable side of this court. There is no apparent excuse for his delay.

There was no evidence of fraud and no charge thereof in this case, and all negotiations and understandings were merged in the deed and purchase-money note. “After a deed has been given and accepted, the purchaser may set up as a defense (to an action by a vendor to recover the purchase money) a breach- of an incidental covenant in the contract which is not merged in the deed, but, as a general rule, the contract to convey is merged in the deed, and after acceptance of the deed, the purchaser cannot set up in defense a breach of a covenant or condition in the contract, but must rely on his covenants in the deed and bring an action on them after a breach thereof:” 39 Cyc., 1919. “The contract to convey is generally merged in the conveyance, but there may be incidental covenants that are not so merged:” Colvin v. Schell, 1 Grant, 226 (Supreme Court). The defendant here accepted his deed knowing that possession of the strip in controversy was not in plaintiff. Had there been any special covenant with regard to the possession of the strip, it might have been pleaded as a good defense to the action for the purchase money. The outstanding possession of the strip was apparent to defendant, and was explained to him, and he took the chance of obtaining possession in the future and accepted the deed without condition.

In the case of Horbach v. Gray, 8 Watts, 492, 497, involving a controversy somewhat similar in principle to this case, the Supreme Court said: “Had the vendee unconditionally accepted the conveyance, containing, as it did, a covenant of general warranty, he would have elected to rely on it exclusively, and could not have used this known and contingent defect, whether real or supposed, as a pretext to withhold the purchase money.” The defendant in this case was relying on his deed; as he says, “I expected to get it any time I was ready for it. When a fellow sells something and gives a warranty deed for it, you expect him to get possession.”

The defendant has now just what he saw in possession of plaintiff when he bought the lot and took his deed. The disputed line was pointed out to him, and he was satisfied to take his chances on what Dr. Eddy would do; about it in the future. The Superior Court in a recent case has laid down the following principles which may readily be applied to this case: “Where the contract is fully executed and the purchase money paid, the transaction cannot be ripped up without actual proof of fraud or mutual mistake in an essential point. The plaintiff bought the property on inspection, and the deficiency is clearly insufficient, standing alone, to justify submitting the question of fraud or mutual mistake to a jury: Rodgers v. Olshoffsky, 110 Pa. 147; Landreth v. Howell, 24 Pa. Superior Ct. 210. He received all the property within the boundaries set out in the deed: Large v. Penn, 6 S. & R. 488; Keen v. Eaby, 254 Pa. 273; Smith v. Donahue, 60 Pa. Superior Ct. 424. The words “more or less” in connection with the length of the lot would lead one to conclude that the quantity between the front and rear lines was in the minds of the parties rather than the exact measure of the depth. See Rodgers v. Olshoffsky, supra; Coughenour’s Admin’rs v. Stauft, 77 Pa. 191. Looking at the testimony, we find that the appellant deposed that he went on the ground; ‘I examined it; I saw there was a gate there, and I saw there was an alley there. There was a right-of-way for an alley; a passage for some one to get in and out at the rear.’ The following day he paid for the deed. This shows conclusively that the plaintiff exercised his right of inspecting the property before he bought it, and saw the visible monuments on the ground defining its extent:” Mylin v. Hetrick, 82 Pa. Superior Ct. 475, 477.

The defendant’s proof is conclusive that there was no fraud or overreaching in this matter on the part of plaintiff. We do not feel, under the facts and circumstances of this case and the law applicable, that we could sustain a verdict for plaintiff in this case if a jury was permitted to pass on the facts: Freeman v. Sanner, 11 Pa. Superior Ct. 42; Joy v. Amantea, 43 Pa. Superior Ct. 529.

While defendant says in his testimony that “he told me he would give me all the time I wanted to pay the balance,” this fact is not advanced as a reason for opening judgment as a matter of defense. Such an agreement, if made, would not furnish a good reason for opening this judgment. There was no averment or proof of fraud, accident or mistake: Security Finance Co. v. Reiser et al., 7 D. & C. 634.

And now, May 14, 1928, the rule to open judgment is discharged; costs to be paid by defendant.

From S. M. Williamson, Waynesburg, Fa.