"said resolutions be declared a lien or encumbrance upon said premises, a cloud upon the title, and, under the circumstances, null and void." That the formal action of the city thus taken by its council constitutes, by virtue of the Act of 1913, a cloud upon plaintiff's title is apparent. Cloud on title is "something that shows prima facie some right of a third party, either to the whole or some interest in the title. Anything is a cloud which is calculated to cast doubt or suspicion upon the title, or seriously to embarrass the owner, either in maintaining his rights or in disposing of the property:" 7 Cyc. 256, citing Cooley on Taxation, 542; 11 Corpus Juris, 920. In Evans v. Taylor, 177 Pa. 286, it was held that a street located through land on the city map, but unopened, was such an encumbrance as would preclude recovery in an action of assumpsit for purchase money where the contract of sale was executory, and contained a clause that the property was to be "clear of all encumbrances." Mr. Justice Green, quoting from Bank v. Alexander, 3 Cent. Repr. 388, says at page 290: "It has been stated in the findings of fact that this street has been laid out thirty feet wide over a portion of the lot. This fact presents a most serious obstacle to the granting of a decree for specific performance of the contract between the parties. It is true the street is not opened, but is laid out on the city plan. The effect of this is to give notice to whomsoever takes the lot of the possibility, or rather the probability, that the street will be opened at any time, and, therefore, he cannot claim damages from the city should he erect improvements upon it. See Act of April 3, 1851, P. L. 327. He finds himself in the awkward position of not being able to claim damages, as there has been as yet no physical taking, and yet he cannot improve except at his peril. At the best, he is subject to uncertainties, and is liable to a lawsuit to test the question of benefits or damages to which he may be entitled or for which he may be liable. This would seem to present a very similar state of facts to that governed by the decision of the Supreme Court in Speakman v. Forepaugh, 44 Pa. 374." See, also, Batley v. Foerderer, 162 Pa. 460.

If, therefore, action by a municipality in accordance with rights and powers given it by section 12 of the Act of 1891, with relation to streets, imposes an encumbrance

upon the land over which an unopened street is located, it follows that the effect of similar action under an act which would extend those rights and powers to the acquisition of future parks and playgrounds would likewise impose an encumbrance.

That equity has jurisdiction to restrain the filing or enforcing of an invalid lien or encumbrance is settled: Harper's Appeal, 109 Pa. 9; Leake v. Philadelphia, 171 Pa. 125; Gregg v. Sanford, 65 Fed. Repr. 151. In Dull's Appeal, 113 Pa. 510, it was held, quoting from the syllabus: "The jurisdiction of the court of equity to remove clouds from title is an independent source or head of jurisdiction, not requiring any accompaniment of fraud, accident, mistake, trust or account or any other basis of equitable intervention." See, also, Slegel v. Lauer, 148 Pa. 236, where the court held that an owner of property has a right, not merely to possession, but to a clear title, and when his right to the title is incapable of being enforced in any legal action he can institute, as is the case here, he is entitled to the protection of a court of equity. DECREE.

And now, Jan. 15, 1923, this cause came on to be heard at this term, and, upon consideration thereof, it is ordered, adjudged and decreed that this action of the defendant municipality, as evidenced by the resolution of its city planning commission and its city council, hereinbefore fully recited, constitutes an encumbrance upon plaintiff's land and a cloud upon its title; that the said action is violative of the plaintiff's protection under the Constitution of the State of Pennsyvania and the 14th Amendment of the Federal Constitution, and, therefore, null and void as against the right of the plaintiff, its lessees or vendees, to improve the said premises, or any part thereof, by the erection of buildings thereon or otherwise, and to receive just compensation for such improvements made subsequent to the said action of the defendant city, in the event of a future appropriation by the defendant of the land in question; and that the injunction heretofore granted be made permanent, and that a perpetual injunction be issued to the City of Easton, the defendant, its officers, agents and employees, from interfering with the said premises of the plaintiff, or the construction or erection of any buildings or other im

provements upon the same. It is further ordered and decreed that the defendant shall pay the costs of this proceeding. The prothonotary will enter this decree "nisi" and give notice of the same to the parties or their respective counsel, and if no exceptions are filed within ten days, this decree shall be entered by him as a final decree.

MEHRKAM v. SCHLEGEL AND WILLIAMSON, INC. Judgment-Opening Judgment by Default-Mistake of Coun

sel.

A judgment entered by default, as a result of the mistake or oversight of counsel, where application is promptly made, a reasonable explanation or excuse for the default offered and a defense upon the merits shown, will be opened.

In the Court of Common Pleas of Lehigh County. No. 161 October Term, 1923. Harry Mehrkam v. Schlegel and Williamson, Inc., successors to George G. Schlegel and James D. Williamson, co-partners trading as Schlegel and Williamson. Rule to Open Judgment. Rule absoute.

Dallas Dillinger, Jr., for Plaintiff.

Charles W. Webb, for Defendant.

Reno, P. J., February 4, 1924. Recent cases hold that relief should be granted from a judgment entered by default, as a result of the mistake or oversight of counsel, where application is promptly made, a reasonable explanation or excuse for the default offered and a defense upon the merits shown: Fuel City Mfg. Co. v. Waynesburg Products Corporation, 268 Pa. 441; Tabas v. Robinson, 273 Pa. 164.

Judgment was entered October 30, 1923, and the petition to open the judgment was filed the same day. Obviously, the application was promptly made. Counsel for defendant, with a degree of refreshing frankness that should secure absolution, confesses that in his zeal as a member of a committee engaged in a "drive" for funds for a local semi-public institution, he neglected his professional interests and permitted the last day for filing

the affidavit of defense to pass without performing that duty. This is a satisfactory explanation of the circumstances. The defense set out in the affidavit of defense, now filed, is so undeniably meritorious that if the defendants were not permitted to defend they would be punished for the sins of their counsel. Beyond this, nothing need now be said upon the defense disclosed by the affidavit. It follows that the judgment must be opened.

Now, February 4, 1924, rule to show cause why the judgment should not be opened and the defendant let into a defense is made absolute; the judgment is opened and the case will proceed to trial upon the statement of claim and affidavit of defense; with leave to plaintiff to file a reply to the defendant's counter claim contained in the affidavit of defense, if he so desires, within fifteen days from the date of service of this order upon him or his counsel.

PAMMER v. MARGYAS.

Judgment-Opening Judgment-Evidence-Question for Jury.

Judgment was entered upon a confession contained in a bond accompanying a mortgage. This mortgage, it was alleged, was drawn into controversy in a prior action between the same parties, wherein it was determined that nothing was due thereon. Held, that as the question cannot be determined by the pleadings and depend in part, at least, upon parol evidence, the judgment should be opened.

In the Court of Common Pleas of Lehigh County. No. 821 January, Term 1924. Louis Pammer v. Michael Margyas. Rule to Open Judgment. Rule Absolute.

Daniel L. McCarthy, for Plaintiff.
Dallas Dillinger, Jr., for Defendant.

Reno, P. J., February 4, 1924. The judgment which we are asked to open was entered upon a confession of judgment contained in a bond accompanying a mortgage. This mortgage, the defendant alleges, who prays that the judgment be opened, was drawn into controversy in a prior action between these same parties wherein it was determined that nothing was due thereon. We are not

called upon now to pass upon the merits of petitioner's contention. It is sufficient to say that the contention is equivalent to a plea of former recovery and raises the the question of the conclusiveness of the first judgment of the claim pressed in this action. This question cannot be determined by the pleadings now before us. It depends, in part, at least, upon parol evidence, and it is, therefore, to that extent, a question of fact for the jury: Crotzer v. Russel, 9 S. & R. 81; Converse v. Colton, 49 Pa. 346; Chase v. National Bank, 56 Pa. 355; Kaster v. Welsh, 157 Pa. 590. This requires that the judgment be opened so that defendant have an opportunity to defend upon this ground.

Now, February 4, 1924, the rule to show cause why the judgment should not be opened and the defendant let into a defense is made absolute; the judgment is opened; and an issue to determine the validity of said judgment is framed between the parties, which issue shall be created by the plaintiff's statement of claim which he will file within fifteen days after service of a copy of this order upon him, and an affidavit of defense which defendant will file within fifteen days after service of a copy of the statement of claim upon him.

ESTATE OF REBECCA HUBER, DECEASED.

Orphans' Court-Decedents' Estate-Auditors-Fee-Act of June 4, 1879, P. L. 84, Section 1-Act of June 7, 1917, P. L. 447, Section 63.

Auditor's fees must not be excessive.

Where the balance for distribution is $5477.23 and the auditor appointed to make distribution held one meeting, took six pages of typewritten testimony and filed a report of seven typewritten pages, and where the one question of law involved was comparatively simple, necessitating inspection of few authorities and the construction of only one act, a fee of $400 was reduced to $100.

The act of June 4, 1879, P. L. 84, Section 1, has been repealed by the Act of June 7, 1917, P. L. 447, Section 63, and there is no longer a per diem basis for allowance of auditor's fees.

Auditors are entitled to fair and reasonable compensation and no

more.

In the Orphans' Court of Lehigh County. In Re Estate of Rebecca Huber, Deceased. Exception to Auditor's Report. Exception sustained.