QUO WARRANTO-WHO MAY MAINTAIN.

A private individual cannot maintain a bill in the nature of quo warranto to test a street railway company's right to use a public street in a city.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Quo Warranto, § 41.]

Appeal from Court of Common Pleas, Philadelphia County.

Bill by the Thirteenth & Fifteenth Streets Passenger Railway Company against the Broad Street Rapid Transit Street Railway Company and the Philadelphia Rapid Transit Company. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

N. Du Bois Miller, H. La Barre Jayne, and J. Rodman Paul, for appellant. Ellis Ames Ballard, John G. Johnson, and E. O. Michener, for appellee.

Decree affirmed.

(218 Pa. 624)

without any agreement on behalf of the person
making the payment, although a bond or mort-
gage was a consideration for the deed.
[Ed. Note. For cases in point, see Cent. Dig.
vol. 47, Trusts, §§ 102-107.]

Appeal from Court of Common Pleas,
Northampton County.

Action by Maria Donata Casciola and Filippo Casciola, in right of Maria Donata Casciola, against Donato Donatelli and Filippo Giacomo Donatelli. Judgment for defendants, and plaintiffs appeal. Affirmed.

At the trial, when Leo Donatelli, a witness for the defendants, was on the stand, the following question was asked him: "Q. Where did you see Filippo Casciola? A. In New York. I don't remember if it was on the corner of Broome and Mulberry or Grand Q. What and Mulberry; I don't recollect. was your talk with him, and who was present? Mr. Stewart: Objected to as incompetent and irrelevant, as no conversation with Philip Casciola can in any way affect the title of his wife, Maria Casciola, in this case. Q. You talked with Filippo Casciola? Don't say. what he said, now. Did you talk with him at that time? A. Filippo Casciola and his wife. Q. Were they both there? A. Yes, sir. Q. They were both there during the entire time that you talked with him? A. Yes, sir. Q. Now, what did you say to him, and what did he say to you? Mr. Stewart: We object to this conversation, on the ground that she cannot be affected or estopped by any declarations that were made by Filippo Casciola in her presence. Also, the further objection that the testimony is not directed in any way. to the time when Maria Casciola acquired title to this property from Guito Sciovoni, but is more than a year after, and that there is no testimony tending to show that the defendants, the intending purchasers of the property, were creditors of either Maria Casciola or her husband, Filippo Casciola, at the time she took title from Guito Sciovoni, or that they knew her or were in any way interested in the property itself. The Court: The objection is overruled. This testimony is received for the purpose of tending to show, by declarations of Filippo Casciola, in the presence of his wife, made without objection from her, or declarations of the wife herself at the time to which the witness refers, that she was holding the title in her name as trustee for her husband by virtue of the conveyance made in September, 1897; the special plea of the defendants in this case alleging a resulting trust in her husband by reason of that conveyance to her and the conveyance of the title to these defendants subsequently. Therefore declarations made subse quently to the time of that conveyance to Maria Casciola, by her husband in her presence or by herself, which have significance upon the question of the original intention at the time of the conveyance to her, are competent evidence, and, for that reason, I receive this evidence as having some bearing

Q.

upon the question of her ownership of the property by virtue of that conveyance. (To which ruling plaintiff excepts, and bill sealed.) Q. Do you recollect meeting Mr. Parke Davis, my associate counsel in this case, in New York some time in 1905? A. I remember some time, but I can't say the date. Do you know whether or not it was after this ejectment suit had been started? A. Well, yes; it was at the time they were talking about bringing this suit. Q. Or had started this suit-you don't know which? A. Or it was started, I don't know. Q. Well, you and Mr. Davis talked together, and, in consequence of what he requested you to do, did you go to see Filippo Casciola or his wife? A. Yes, sir. Q. Which one of them did you see? A. Well, I went to the residence of Filippo Casciola, and I find his wife there. Q. He was not there? A. He was not there. Q. Now, did Mr. Davis ask you whether you could get another deed from her, or whether she would settle this suit? What did you say to her, and what did she say, about the ownership of this property? Mr. Stewart: Objected to as irrelevant and immaterial. She is not bound to give any deed, and not estopped by any declarations she may have made. The Court: The objection is overruled, for the reasons I have already stated, and the evidence is received for that purpose, being the declarations of the wife alone. (To which ruling plaintiff excepts, and bill sealed.) A. I found his wife at home, and I ask her where was her husband. She told me he was up at the shop in Elm street. And I told her, I says: "This is a nice way to deal.' I said: 'You know very well that your husband took the money, and you both agreed in every way, in a friendly way. Now, what does your husband want to make this fuss about?' She says: 'I don't know nothing about. You go and see him. The property belongs to him, was in my name. I can't say nothing I don't know nothing about.'" Filippo Donatelli was asked this question: "A. Leo Donatelli took him over to Filippo Casciola and his wife and give him the money. Q. How much money did you pay over? Mr. Stewart: Objected to as irrelevant and immaterial, and not connected with the transaction in which Mrs. Casciola received the deed, it cannot throw any light on that original transaction. The Court: The objection is overruled, for the reasons that I have already given, as being some evidence tending to show that at the time of the original conveyance to Mrs. Casciola it was intended to be the property of the husband and held by her in trust for him. (To which ruling plaintiff excepts, and bill sealed.)

The court charged, in part, as follows: "Now, getting your minds to realize the fact that we are concerned with determining what was the intention of the husband, Filippo Casciola, when he took this title from Dominico Del Grosso and his wife on September 3d, and on September 6th, had it transferred over to

his wife through Vito Sciovoni, what was his intention at that time-that is the point to which all this testimony is naturally directed. It is suggested to you as one of the first elements in the proof here that when Del Grosso made the deed to Filippo Casciola he paid no money. The title had been originally in him. Then the deed, after the sheriff's sale, was made by Dominico Del Grosso to Filippo Casciola on September 3, 1897, and the only consideration that was then expressed was for the mortgage of $550. That was Filippo Casciola's obligation, and it thus became his own debt, and that on the 6th Filippo and his wife transferred the property to Vito Sciovoni, without the payment of any money. No money was paid by Filippo to Dominico Del Grosso. No money was paid by Vito Sciovoni. And when Vito Sciovoni made the title to Maria Casciola she paid no money. And this is a circumstance that is referred to by the defendants as showing that it was Filippo Casciola's property; that he paid nothing for it, but gave the obligation which stood upon the property and transferred it thus indirectly to his wife without receiving any benefit or without paying any consideration. Whatever significance as an element of proof in the consideration of the question of the intention of Filippo Casciola to thus give his wife the title and yet hold the property in himself, either because he had to leave this county or believed he had to leave this county on account of threatened prosecutions, or for any other cause, whatever significance that may have, is for you in determining the question of intention."

Argued before FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

E. J. Fox, G. F. P. Young, and J. W. Fox, for appellants. F. W. Edgar and Parke H. Davis, for appellees.

BROWN, J. The defendants below took title to the property in controversy from Maria Donata Casciola by deed dated September 17, 1898. At that time she was the wife of Filippo Casciola, but he did not join in the deed. If the property belonged to the wife, nothing passed to the appellees by her defective deed, and the verdict ought to have been for her; but, if she held the title as trustee for her husband, her deed conveyed his interest, and the verdict was properly returned for the defendants. Upon the facts in the case, as gathered from the evidence submitted by the appellees, the learned trial judge could not have withheld from the jury the question of a resulting trust in the wife. The main contention of counsel for appellants is that the court should have affirmed their sixth point, asking that a verdict be directed for them because the evidence was insufficient to establish the alleged trust; and their criticism of the charge is, not that it was not technically correct, but that it was made at all. September 3, 1897, Guitana Del Grosso and

On

her husband, Dominico Del Grosso, conveyed this property to Filippo Casciola, the husband of the plaintiff below. The consideration named in the deed was $550, but no money was paid; the vendor taking a purchase-money mortgage for $550. On September 6, 1897, Filippo Casciola and his wife conveyed the property to Vito Sciovoni in consideration of $550, which was not paid by him, as he was but the intermediary to convey the property to Maria Donata Casciola, which he did by deed bearing the same date and naming the same consideration. On September 17, 1898, Maria Donata Casciola conveyed the premises to Donato Donatelli and Filippo Giacomo Donatelli, the appellees, in consideration of $1,000, $450 of which was cash, and the balance the assumption of the mortgage of $550. In October, 1903, more than five years afterwards, this suit was brought in the right of Maria Donata Casciola for the recovery of the premises, for the reason that the property was hers, and the appellees had acquired nothing under the deed which she gave them. The question submitted by the court to the jury was whether on September 6, 1897, when Filippo Casciola had the deed made to his wife, "it was made to her intending that she should hold the written paper only, but that he should retain possession of the property, and that she was the trustee." In submitting this question, the jury were instructed that the burden was on the defendants to show by clear, precise, and indubitable evidence that their contention that the title was given to her in trust was sustained. They were further instructed that, unless it was the intention to create the trust at the time the deed was made, there could be no recovery, as a purpose subsequently formed would not be sufficient to create it; but they were also told that the declarations made at subsequent times by the husband and wife were evidence to show what the purpose was at the time the deed was made.

Where one purchases an estate with his own money, and the deed is taken in the name of another, a trust of the land results by presumption or implication of law, and without any agreement, to him who advances the money. Dyer v. Dyer, 1 Lead. Cas. in Eq., *203; Bispham's Equity, 118120; Lynch v. Cox, 23 Pa. 265; Edwards v. Edwards, 39 Pa. 369; Smithsonian Institution v. Meech, 169 U. S. 398, 18 Sup. Ct. 396, 42 L. Ed. 793; Galbraith v. Galbraith, 190 Pa. 225, 42 Atl. 683. And the consideration moving from the cestui que trust need not be money; a bond or mortgage may be given for the deed. Bispham's Equity, § 81; 15 Am. & Eng. Ency. of Law (2d Ed.) p. 1145; Morey v. Herrick, 18 Pa. 123. If the conveyance from Sciovoni had been to another than the wife of Filippo Casciola, an implied trust would have resulted in his favor because his bond and mortgage had

been given to Grosso for the payment of the purchase money. "This rule has its foundation in the natural presumption, in the absence of all rebutting circumstances, that he who supplies the purchase money intends the purchase to be for his own benefit, and not for another, and that the conveyance in the name of another is a matter of convenience and arrangement between the parties for collateral purposes, and this rule is indicated by the experience of mankind." 1 Perry on Trusts, § 126. But as the conveyance was made to Casciola's wife, the presumption is that it was a gift to her by him. This, however, is but a presumption, and, though strong, is not conclusive and may be overcome; the burden resting upon those who seek to establish this trust to overcome it. If the presumption that the conveyance was a gift to the wife has been overcome, the contention of the appellees is that the title was in her as trustee.

Was the presumption of a gift overcome? Leo Donatelli, called by the defendants, testified that when he made the bargain for the purchase of the property by the appellees he did so with the husband in the wife's presence, and that the husband said: "The house is on my wife's name, but it belongs to me. I made some kind of a fake deal and gave it to my wife, but, really, the house is mine." She made no reply to this. Raphael Falconi's testimony was that she said to him: "The property was my husband's property, but the paper is in my name." Anna Sabatino stated that she said to her: "The property belonged to my husband, but the papers is in my name." And Dominco Sabatino testified that she said to him: "The property is on my husband and the paper is on me." All of these conversations took place before the Donatellis purchased the property, and, having been against the interest of the wife, were admissible to rebut the presumption of a gift to her and to establish the contention of the appellees that she held the title in trust for her husband. After the title was put in her name, the husband took out an insurance policy on it and paid the premiums. Some time after the property was sold to the appellees, he refused to pay the insurance assessment, saying that he had sold the property. When the purchase money was paid, it was paid to him in the presence of his wife. From the $450 he took $60 or $75, and gave it to his mother-in-law, saying, "This is the money I owe you," and put the rest in his pocket. This all took place in the presence of his wife, who said nothing. The foregoing testimony was believed by the jury. It overcame the presumption of a gift to the wife, and there was clear evidence of what the intention of herself and husband was at the time the conveyance was made to her.

In the charge the rights of the plaintiff were most carefully guarded, and under it there would have been a finding in her favor

if what she and her husband testified to and what was said by their witnesses had been believed by the jury. Every position taken by the appellant was sustained in affirming the first five points submitted; the sixth only, refusing binding instructions in her favor, was refused.

The case was one of fact for the jury under proper instructions. The rulings on offers of evidence were proper, and the charge on the legal aspect of the case is absolutely free from error.

defendant averred in an affidavit of defense full compliance on its part with the agreement, and averred, further, that, with the exception of the mortgage as contemplated, the title is clear and satisfactory, and is marketable. This affidavit was adjudged insufficient by the court below, for two reasons: First, because it contained no averment as to the state of the title within the period of thirty days following the agree ment, within which the title was to be made clear and satisfactory to the plaintiff; sec

VENDOR AND PURCHASER - RESCISSION SALE.

OF

An agreement for the sale of land provided that title should be made satisfactory to the purchaser within a fixed time. Held, that failure by the seller to prove the title good to the satisfaction of the purchaser was ground for rescission by the latter.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 259.]

Appeal from Court of Common Pleas, Philadelphia County.

Action by Henry Meyers against the Catawissa Coal Company. From an order making absolute rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

C. La Rue Munson, for appellant. C. Berkeley Taylor and Franklin E. Barr, for appellee.

POTTER, J. This is an appeal from a judgment entered for want of a sufficient affidavit of defense. The defendant company agreed in writing to sell to Henry Meyers, the plaintiff, its entire capital stock, stipulating that it owned in fee a certain tract of anthracite coal in Columbia county, which was to be free of debt, liens, taxes, and incumbrances, with the exception of a mortgage for $50,000. Upon the execution of the contract, the plaintiff paid down the sum of $5,000, with the explicit agreement that if within 30 days the titles to the property were not "clear and satisfactory to said Meyers" the money was to be returned. If the titles proved to be "clear and satisfactory to said Meyers," a second installment of the purchase money was to be paid, not later than 30 days from the date of the agreement. The plaintiff brought this action to recover the said sum of $5,000, paid by him on account of the purchase money, alleging that the titles to the tract of land described in the agreement were not made clear and satisfactory to him within the period of 30 days named therein. The

clear and satisfactory, and marketable, and fails to aver that it is satisfactory to the plaintiff, as, under the agreement, it was to be.

We all agree that the first reason is good, and is in itself sufficient to sustain the judgment. The contract is clear and specific that the titles were to be proven good to the satisfaction of the plaintiff within 30 days, and that he was to make a large additional cash payment within that time. This involved not only an examination of the titles, but a financial arrangement, and it may very well have been that the time limit fixed was important, in view of the money which was to be provided by the plaintiff, and paid over. At any rate, the parties did unquestionably agree upon a definite period within which the titles were to be shown as clear and satisfactory to Meyers, and the affidavit of defense does not aver compliance with the contract in this respect within the limit fixed. The assignments of error are overruled, and the judgment is affirmed.

Act March 19, 1860 (P. L. 175) and Act April 22. 1868 (P. L. 1136), authorizing the city of Harrisburg to tax corporations for city purposes. were repealed by Act May 23, 1874 (P. L. 230), and Act May 23, 1889 (P. L. 277), providing for the creation of cities of the third class and for a complete system of taxation therein.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 2027.]

Appeal from Superior Court.

Case stated in action by the city of Harrisburg against the Harrisburg Gas Company. From a judgment of the Superior Court reversing a judgment for plaintiff, it appeals. Affirmed.

The opinion of the Superior Court, by Porter, J., was as follows:

"The case stated presents but one question: Whether the city of Harrisburg, a city of the third class, has the power to tax for general revenue purposes the real estate of the Harrisburg Gas Company, a duly organized public corporation, authorized under its charter to

manufacture gas, for heating and illuminating purposes, and supply the same to the public in said city; said property being used by the gas company exclusively in its business of manufacturing and supplying gas to the public in the city of Harrisburg, as authorized by its charter, and necessary and indispensable to the exercise by the company of its franchise and the discharge of the public duty imposed by its charter.

"The act of March 19, 1860 (P. L. 175), incorporating the city of Harrisburg, in section 24 (page 189), provides for the election of an assessor by the qualified voters of each ward of the city, the manner in which property subject to taxation shall be assessed, and 'that the assessors, in making such assessment of property in the city of Harrisburg, shall assess all the property which is now by law subject to taxation for borough purposes in the said borough of Harrisburg, and shall also assess for taxation, for city purposes, the real estate of all incorporated companies within the limits of the said city, except the real estate of the Pennsylvania Railroad Company, the Harrisburg & Lancaster Railroad Company, the Cumberland Valley Railroad Company, the Reading Railroad Company, and the several cemeteries, together with the buildings thereon erected.' The charter of the city was amended, and its taxing power increased by the act of April 22, 1868 (P. L. 1136), which contained the following provisions: "That all real estate situated in said city, owned or possessed by any corporation except religious and educational corporations, shall be and is hereby made subject to taxation for city purposes, the same as other property in said city; any law or laws contrary to or inconsistent with this section are hereby repealed. That the city councils are hereby empowered to levy, assess and collect for the use of the city, an annual tax, not exceeding one-third of one mill per dollar on the average quarterly business of all insurance companies, insurance agencies, express and telegraph companies, or other agencies or corporations doing business in said city, which do not now pay city tax.' The above recited provisions of the statutes are very clear and comprehensive, and, unless they have been repealed by later legislation, the real estate of the appellant company is by them rendered subject to taxation. Pennsylvania Railroad Company v. Pittsburgh, 104 Pa. 522; Philadelphia v. Philadelphia Traction Company, 206 Pa. 35, 55 Atl. 762. The city of Harrisburg duly accepted the provisions of the act of May 23, 1874 (P. L. 230), entitled 'An act dividing cities of this state into three classes

and providing for the incorporation and government of cities of the third class,' in the manner provided by section 57 (page 269) of said statute; and the Governor of the commonwealth, on August 25, 1874, duly certified the surrender of the former charter of the city and the acceptance of the provisions of

the act of 1874. The city of Harrisburg is therefore a city of the third class, and subject to the provisions of the act of May 23, 1874 (P. L. 230), and the act of May 23, 1889 (P. L. 277), entitled 'An act providing for the incorporation and government of cities of the third class.' The question is whether these statutes relating to the classification of cities and the government of cities of the third class repeal the local and special provisions relating to taxation contained in the act of 1860 and the act of 1868, above recited, conferring peculiar powers of taxation upon the city of Harrisburg.

"The act of 1874, in dealing with the taxing power of cities of the third class, authorized such cities, in clause 1 of section 20, 'to levy and collect taxes for general revenue purposes, not to exceed ten mills on the dollar, in any one year, on all the real, personal and mixed property within the limits of said cities, taxable according to the laws of the state of Pennsylvania, the valuation of such property to be taken from the assessed valuation of the taxable property therein made under the provisions of law regulating the same.' This statute did not designate the property which should be subject to taxation, nor provide for the manner in which the valuation of that property should be assessed. The property subject to taxation, the mode in which the assessors should be chosen, and the manner in which their duty should be discharged were left to be determined under the laws already in force in the several cities, respectively. This statute was, however, inconsistent with the acts of 1860 and 1868, in that it fixed the limit of the levy in any one year at ten mills, no such limitation being found in the earlier statutes; and, further, in that, in section 36, it provided a new and entirely different manner of collecting taxes. The act of 1874 provided that the powers of cities of the third class 'shall be and remain as now provided by law, except where otherwise provided by this act.' It is not asserted that the city has attempted to levy taxes to exceed ten mills on the dollar in any one year upon the property of the appellant, and, if the power of the city to levy a tax upon the real estate of the corporation has been taken away, it must be because of a later statute.

"The act of 1889 (P. L. 277) provided a complete system of taxation for cities of the third class, designated the property and occupations which should be subject to tax, enacted that the assessors who should fix the valuation of such property should be chosen by the qualified electors of the city, not of the several wards, ordained the manner in which such assessors should discharge their duties, created a board to hear and determine appeals from such assessments, designated the officer to whom taxes should be paid, provided a manner for enforcing payment, and fixed penalties for failure to pay the tax after it became due. The system