compliance with its terms. But the conduct of the defendant, as outlined in the findings of fact by the court, was such as amounted to a waiver of his right to receive any other notice than that which was served upon him in the latter part of February. At that time the agent of the other party to the agreement proposed to return upon March 19th and serve upon the defendant a written notice of acceptance, in literal compliance with the terms of the contract. The defendant, however, capriciously and arbitrarily refused to accept any such notice, and said that he would not let his coal go. How could there be any more positive or definite relinquishment of his right to further notice? There is no reason why the right to receive written notice may not be waived by parol. We are not aware of any principle of public policy or of any enactment of positive law which would prohibit such a waiver. "A waiver may be evidenced by express agreement, or by declarations and conduct from which a fair implication of it arises." Smith v. Snyder, 168 Pa. 541, 32 Atl. 64. Having expressed his intention of repudiating the contract, and having declined to receive any further or written notice of acceptance, it would be unconscionable to now allow the appellant to claim any benefit from his refusal to permit literal compliance with the terms of the agreement as to notice. party who dispenses with or prevents performance of a contract cannot take advantage of the nonperformance by the other." Grove v. Donaldson, 15 Pa. 128.

"A

The assignments of error are all overruled, and the decree of the court below for specific performance of the contract is affirmed, and this appeal is dismissed, at the cost of appellant.

(204 Pa. 341)

COVERT et al. v. PITTSBURG & W. RY. CO. et al.

(Supreme Court of Pennsylvania. Jan. 5, 1903.)

RAILROADS-ADVERSE POSSESSION-TITLE TO

LAND.

1. Where a railroad, having the right to exercise eminent domain, took land as a purchaser from one holding adverse possession, its title became good when the combined adverse possession of the railroad company and its grantor exceeded 21 years.

Appeal from superior court.

Action by Hezekiah Covert and L. M. Covert against the Pittsburg & Western Railway Company and Thomas M. King, receiver. Judgment for plaintiffs was affirmed by the superior court, and defendants appeal. Reversed.

The evidence tended to show that the land in dispute was a strip of land which the defendant claimed as a portion of its right of way under a deed from a mere intruder on the land. The trial judge refused to instruct that the railroad company could tack its

possession to the possession of its grantor, and thus acquire a good title by 21 years' adverse possession.

Argued before MCCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

R. P. Scott, for appellants. John H. Wilson, Lev McQuistion, and J. O. Vanderlin, for appellees.

BROWN, J. The single question raised here is, not whether a railroad company, possessing the right of eminent domain, can acquire title to land by 21 years' adverse possession of it, but whether, as a purchaser of the same for railroad purposes from one holding adverse possession, its title is good, if the combined adverse possession of vendor and vendee exceeds 21 years. The appellant offered testimony tending to prove that John Winter had been in adverse possession of the land in dispute for several years prior to November 9, 1877, when he entered into an agreement with the railroad company, whose successor the appellant became, for the sale of it for railroad purposes. The agreement was followed by a deed for the land on July 23, 1879. This suit was brought December 8, 1897, but the common pleas and superior court were both of opinion that the railroad company could not avail itself of the act of limitations of March 26, 1785, even if the combined adverse possession of Winter, its vendor, and itself had been of the character required by the law, and had continued for more than 21 years. The trial judge instructed the jury that, "if John Winter had occupied and had possession of this land for twelve years, and had sold to some person, not a corporation like a railroad company, and that person had held nine years longer, then the title would have gone, and the two possessions would have come together; but our law does not give a railroad company that right where it enters unlawfully, where it enters without authority of law." The superior court seems to have adopted the same view. In it we cannot concur. The appellant is not claiming a right of way over the land and resisting payment of damages under the plea of the statute of limitations. It stands upon what it asserts is its title to the fee, acquired by purchase, just as a private person might have acquired the land. We need not consider the cases holding that a railroad company, possessing the right of eminent domain, cannot set up adverse possession for the statutory period, when the real owner of the land undertakes to assert his rights in it. The reason that adverse possession cannot be set up in such a case is that the law presumes, when a railroad company takes land for its corporate purposes, it does so under its high right of eminent domain, and not as a willful trespasser, whose trespass may grow into a title. Its enjoyment of the easement so acquired is upon

the condition that proper compensation to the landowner will be made whenever demanded. The law regards such occupancy of the land as by its permission, on the condition stated, and not as the act of a mere trespasser, to whom statutes of limitations may give rights. The simple question now before us is whether a railroad company may purchase land for railroad purposes from one whose inchoate title rests upon adverse possession.

If Winter had owned the land on a title by deed, it would not be contended that he could not have sold to the railroad company, or that it could not have purchased from him; and it seems to be conceded that, if he had been in adverse possession for more than 21 years on November 9, 1877, or July 23, 1879, the railroad company would have taken a good title from him. It seems to be still further conceded-and, if not, it is the lawthat if an individual had purchased from Winter during his adverse possession of less than 21 years, he could afterwards count such possession as part of the 21 years upon which he could safely rely as his title against another having a better one, but lost by delay in asserting it. "I have no manner of doubt that one who enters as a trespasser, clears land, builds a house and lives in it, acquires something which he may transfer to another; and, if the possession of the two, added together, amounts to twenty-one years, and was adverse to him who had the legal title, the act of limitations will be a bar to his recovery." Tilghman, C. J., in Overfield v. Christie, 7 Serg. & R. 173. The purchaser from a trespasser may tack the latter's adverse possession to his own, so as to give title by the statute of limitations. Hughs v. Pickering, 14 Pa. 297. But the contention of the appellees is that, though this is the law as to others, a railroad company cannot acquire any rights from a trespasser selling his inchoate title. Why not? The reason of the law in the case of a simple taking by a railroad company possessing the right of eminent domain does not exist when it becomes a purchaser, and "cessante ratione legis, cessat lex." What Winter sold to the railroad company was all he could convey in the land; and, whether his title was good or bad, the law permitted him to transfer it. Overfield v. Christie, supra. If he could transfer it to an individual, why not to a corporation possessing the power to purchase? It is true that when he sold he conveyed simply a sprouting title, liable to be cut down by the holder of the better one, but just as certain not to be felled by the blow of any man, if allowed to spread its roots and fully mature after a growth of 21 years. Such was the title purchased by this appellant, and which it claims should now shelter it. The risk was assumed that this title might never become perfect, but the chances were also taken that to the years of Winter's adverse possession of the land the company might be

able to add its own uninterrupted ones, until 21 of them would stand in the way of any, save the commonwealth, who should attempt to enter upon the land. If the testimony offered by the defendant was to be credited by the jury, the railroad company's chances of ultimately acquiring a good title were successfully taken, and the fourth point submitted by it should have been affirmed.

The judgment of the superior court is reversed, as is that of the court below, and a venire facias de novo awarded, that on another trial the view herein expressed may be followed

(204 Pa. 345)*

MILLER et al. v. MACKEY. (Supreme Court of Pennsylvania. Jan. 5, 1903.)

VENDOR AND VENDEE-EXTENSION OF

STREET-CONTRACT.

1. Plaintiffs sued to compel defendant, who had laid out certain lots in a plan, and sold them to plaintiffs, to extend the street on the plan to a main street of the borough. Defendant had agreed with one of the plaintiffs to extend the street when it became possible, but there was no agreement with the other plaintiffs. Defendant had concealed no material facts and made no misrepresentations on the sale of the lots. Held, that the evidence was insufficient to sustain a decree compelling defendant to open the street by a deflected course over a lot originally conveyed by defendant to another, but afterwards repurchased.

Appeal from court of common pleas, Butler county.

Bill by Adam Miller and others against Sarah Mackey to compel the opening of a street. Decree for plaintiffs, and defendant appeals. Reversed.

Argued before McCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

T. C. Campbell and A. E. Reiber, for appellant. H. H. Goucher, for appellees.

FELL, J. In 1867 the defendant was the owner of a tract of land on the south side of Centre avenue, in the borough of Butler, which she laid out in building lots fronting on the avenue and extending south 160 feet to an alley 20 feet wide. In 1873, after she had sold all these lots, she laid out another tract, adjoining the first on the south, into lots, with streets and alleys. On the plan of this tract Walker avenue was the main street. It was 40 feet wide, and extended from the south side of the tract, intersecting cross-streets, 1,125 feet, to the alley in the rear of the lots first laid out. This avenue was at an angle of about 60 degrees with Centre avenue, and ended at the alley 160 feet from it. In order to give the owners of lots on Walker avenue a better means of access to Centre avenue and other streets, the alley west of the former was widened to 40 feet, and extended to Fullerton street, which opened into Centre avenue. Walker

avenue was opened, and lots abutting on it were sold according to the plan, a part of the description of each lot being: "No.

on Mrs. Mackey's plan of lots." In 1887 the defendant purchased from Henry De Wolfe a lot on Centre avenue, which she had before owned and had sold in 1867. The lot was 60 feet wide and extended back to the alley opposite the end of Walker avenue, but was not in line with it, as the avenues were not at right angles. The extension of Walker avenue in a straight course would take the smaller part of this lot and the larger part of two lots to the west, not then nor now owned by the defendant.

In the bill filed it was alleged that the plaintiffs purchased lots on Walker avenue in reliance on the promises of the defendant to open the avenue through to Centre avenue. This averment was not sustained by the testimony. The proofs showed that at different times extending over a period of many years, the defendant had told persons, some of whom afterwards became purchasers, that she intended to have the avenue opened at some future time. Some of these statements were made before and some after she purchased the De Wolfe lot, but with a single exception there was no agreement with a purchaser to extend the avenue, but merely the expression of an intention to have it opened some time in the future. To some of the parties she said that she did not want to pay all the expenses of opening the avenue, and all her declarations were as consistent with an intention on her part to cause it to be opened by the borough as they were with an intention to do it at her own cost. The only one of the plaintiffs with whom it is found by the court that an agreement was made is Andrew Miller, who purchased in 1891, after the defendant had become the owner of the De Wolfe lot. He testified: "I asked her if she would open it [the street] if I purchased, and she said she would open it through to Centre avenue, but she did not know whether she could do it while Mr. Reif lived; and said she did not think he would live long, as he was an old man." Mr. Reif was the owner of a lot west of the De Wolfe lot, the larger part of which would be taken by the extension. By the decree entered, the defendant is ordered to open and extend Walker avenue of a width of 40 feet over and across the west side of the De Wolfe lot to Centre avenue. The enforcement of this decree will deflect the street about 30 degrees from its course, and require the removal of a house occupied by the defendant's tenants.

We find no ground on which this decree can be sustained. There was not an actual dedication of the De Wolfe lot for public use as a street. The defendant never agreed that the avenue should be deflected from its course, and extended through this lot. Her agreement with Andrew Miller was to have it extended in a straight line. This is clear

ly and unmistakably indicated by her statement to him that she did not know whether she could open the street during the lifetime of the owner of an adjoining lot over which the street would pass. The dedication of the lot did not result by implication of law from the sale of lots on Walker avenue. The sale of lots on this avenue implied a covenant with the purchasers that the avenue should forever remain open as a public thoroughfare, but nothing more. It was then opened and connected at both ends with the system of borough streets. In order to make a better connection at the south end, the defendant had widened the alley to the full width of the avenue on the west to Fullerton street. The avenue was complete, and its length and width and its connections with other streets ali appeared on the plan and on the ground itself, and there was no possible reason for the implication of an intention to extend it. A distinct agreement with a purchaser to extend the avenue through the De Wolfe lot might be enforced, but no such agreement was made with any of the plaintiffs. The agreement with one of them-and the only agreement shown-was to extend the avenue, without a change of its course, over the property of others, when it became possible to do so. With the other plaintiffs there was no agreement, but merely the statement of an intention to be carried into effect in the indefinite future. In the sale of lots to them there was no misrepresentation or concealment of material facts which would give rise to an equity that could be enforced in any manner. The plan which entered into and became a part of the description in their deeds showed the division of the land into lots, streets, and alleys. This was notice to them. Moreover, they had knowledge, and no one purchased on the supposition that the defendant owned the land extending on the line of Walker avenue through to Centre avenue, and had dedicated it, or by the sale of lots was then dedicating it, to the public

use.

The decree is reversed, and the bill is dismissed, at the cost of the appellees.

(204 Pa. 332) MUTUAL LIFE INS. CO. OF NEW YORK V. TENAN.

(Supreme Court of Pennsylvania. Jan. 5, 1903.)

JUDGMENT-REVERSAL ON APPEAL STRIKING FROM RECORD.

1. Where the Supreme Court has declared a judgment against an executor, foreclosing a mortgage, void, the court in which it was entered should strike the judgment and all the proceedings thereunder from the record, so that the record may not be used in the orphans' court to prevent plaintiff in the judgment from participating in the proceeds of a fund derived from the sale of the real estate of the decedent.

Appeal from court of common pleas, Washington county,

Action by the Mutual Life Insurance Company of New York, for use of Robert Scott and J. B. Tenan, against George M. Tenan, executor of Stephen Smith, with notice to M. H. Stevenson, terre-tenant. From an order stricking off the judgment, M. H. Stevenson appeals. Affirmed.

The court below filed the following opin

ion:

"We have no doubt that the judgment entered to No. 57, November term, 1897, appearance docket, and the lev. fa. issued thereon to No. 92, November term, 1897, are void, and that the sheriff's sale, and the deed he gave to the purchaser, were without legal effect. If this is apparent from the inspection of the record, we have no doubt as to the power of the court to summarily strike the same from the record, as something that ought not to be there. The only question, then, for us to determine, is whether or not the record shows that the judgment and the decree of this court approving the sheriff's special return are void, or not. There can be no dispute as to what the record shows. It shows a default judgment entered against an executor for want of an affidavit of defense. And the only question, then, to determine, is a legal one; and that is, is such a judgment void-has it any legal effect? What is our authority for saying it is void?

"In the appeal reported in 188 Pa. 239, 41 Atl. 539, the Supreme Court say of this Judgment: 'It follows that the judgment so entered in the present case is a void judgment, and must be set aside.' In Tenan v. Cain, 188 Pa. 242, 41 Atl. 594, the Supreme Court say of this judgment: 'We have just reversed that judgment as unauthorized and void. It was incapable of supporting an execution,' etc. In Stevenson's Appeal, 194 Pa. 259, 45 Atl. 82, the Supreme Court say of this judgment and the proceedings had thereon: "The judgment, deed, and receipt to the sheriff were all legal nullities, and possessed no efficacy whatever.' With these declarations of the Supreme Court, we think there can be no question as to the legal effect of the judgment in question. If, then, the judgment, the deed, and the receipt to the sheriff were all 'legal nullities and possessed no efficacy whatever,' why should they remain on the record? The answer of M. H. Stevenson to the motion to strike off the judgment filed avers that 'the sole purpose of the present motion is to prevent him from using the records as evidence before the auditor appointed to pass upon exceptions and make distribution in the matter of the account of Wm. M. Jackson, administrator of Stephen Smith, deceased, and he suggests that the granting of said motion would therefore be unfair and inequitable.' Would it not be nearer the mark to say that it would be unfair and inequitable not to grant the motion? If this court finds on its records a judgment and proceedings thereon 'that

are legal nullities and possessed of no efficacy whatever,' in the opinion of the Supreme Court, and that the record of the judgment and of the proceedings thereon is about to be used as evidence in another court, where there might be some question whether or not it could be attacked collaterally, why should not this be a reason to move this court to purge its records? Why should this court withhold its hand in this matter, to allow M. H. Stevenson to offer in evidence in the orphans' court a record which has already been adjudged by the Supreme Court not only a nullity, but not competent evidence to establish the claim which he seeks to establish in the orphans' court? We therefore hold that the judgment entered to No. 57, November term, 1897, and all the proceedings under it, are a nullity, and that the motion to strike off should prevail, and that the respondent, in his answer, has not shown any just ground for our delaying the entry of the decree asked for until he can use the record as it now stands as evidence in the orphans' court.

"Of course, if we were to assume that James B. Tenan had been actually paid his mortgage debt, and that the estate of Stephen Smith owed him nothing, and that he, by the sheriff's sale, was trying to collect a debt not honestly due him, there might be some force in the suggestion that it would be inequitable for this court to grant the motion to strike off the approval of the sheriff's special return. But we can make no such assumption. On the contrary, the fact that the estate of Stephen Smith owes James B. Tenan this mortgage debt has been adjudicated, and there is no claim that he was paid the money covered by the receipt which he gave the sheriff. But more than this, this very money for distribution in the orphans' court, referred to in the respondent's answer, was ordered paid to the executor of the will of Stephen Smith, that he might pay it to James B. Tenan in discharge of his debt. It may be, as stated in the answer, that the respondent has been put to expense, by reason of this sheriff's sale, in preparing his paper books for the Supreme Court in the cases that reached there, by a blunder or inadvertence of this court in entering this judgment; but if, in place of giving notice to bidders at the sheriff's sale that the purchaser would take no title, he had come into this court and called our attention to the blunder we had made in entering the default judgment, we would certainly have quashed the writ of lev. fa., and then struck the judgment from the record, and there would have been no expense for him to have paid. Decrees for default judgments are always prepared by counsel, and are handed. up and signed on motion day without much examination; and, as our court rules provide for their being opened or stricken off on cause shown, the election is with the party dissatisfied with the judgment to pursue ei

ther course, and we have no criticism to make of the course the respondent chose to take. We only say that he cannot charge the expenses incurred to 'the unconscionable conduct of James B. Tenan.' He should either charge them to the inadvertence of the court in signing the decree for the default judgment, or to his not calling the attention of this court to the slip it had made, before the sheriff's sale was made.

"And now, June 26, 1902, the motion of James B. Tenan herein filed, an answer thereto of M. H. Stevenson came on to be heard, and was argued, whereupon, upon due consideration, it is ordered, adjudged, and decreed that the judgment of this court entered at No. 57, November term, 1897, and that the decree of this court of date November 12, 1897, approving the sheriff's special return on levari facias, issued to No. 92, November term, 1897, on said judgment, which decree is in these words, to wit, ‘And now, November 12, 1897, the within return presented and read in open court, and, there being no objections, the same is approved, and the sheriff is directed to present, for acknowledgment, the deed to James B. Tenan,' be, and the same are hereby, stricken from the records of this court as 'legal nullities and possessed of no efficiency whatever.'

Argued before MCCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

M. H. Stevenson, for appellant. A. M. Todd and J. A. Wiley, for appellee.

MESTREZAT, J. This was an application in the court below to vacate and strike off the judgment entered against an executor for want of an affidavit of defense, and to vacate the decree of the court approving the sheriff's special return of sale on the levari facias issued on said judgment. The learned judge granted the motion, and struck from the records the judgment and decree, as being "legal nullities and possessed of no efficiency whatever." On three separate appeals to this court, in litigation involving the validity of the judgment, we have declared it void and of no efficacy whatever. We have also held that the deed and the receipt of the sheriff by the lien creditor were likewise of no force or validity. "The sheriff's sale under the judgment," says Chief Justice Green in Smith's Estate, 194 Pa. 259, 45 Atl. 82, "was a void sale, and the deed to the purchaser was a void deed. It not only conferred no title; it was a legal nullity. In other words, the judgment and all the subsequent proceedings were the same as if they had never taken place. They had no existence in any manner which the law could or would recognize." Such was the opinion of this court, after deliberate consideration, upon the validity of the judgment and subsequent proceedings on the scire facias issued on the

mortgage. Regarding this opinion as authoritative, the learned trial judge struck from the record the proceedings to foreclose the mortgage. His opinion thoroughly justifies his action. There can be no sufficient reason assigned why a judgment or proceeding adjudged by this court to be void and of no legal effect should be permitted to remain on the record of the court of first instance. Until it is stricken from the record, and its invalidity thus declared, it can and may be enforced by the same or another tribunal. Thus the records of the court may be used as evidence to enforce a claim which this court declares to have no legal existence, or to defeat a claim which is justly and equitably due. Here the correction of the record was resisted by the appellant in order that he might use it to prevent the allowance of the appellee's claim by an auditor appointed to distribute a fund in another court. So long as the record of the common pleas showed a satisfaction of the claim, the orphans' court could not allow it to participate in the distribution of a fund arising from the sale of the debtor's real estate. The judgment and proceeding thereon, declared by this court to be void and of no legal efficacy whatever, would therefore prevent the appellee from enforcing the payment of his claim out of the fund for distribution. The necessity for correcting the record is therefore apparent, and the learned court below was entirely right in granting the motion for that purpose.

The decree is affirmed.

(204 Pa. 337)

In re SMITH'S ESTATE. (Supreme Court of Pennsylvania. Jan. 5, 1903.)

ADMINISTRATION-PRESENTATION OF CLAIMS. 1. Where the Supreme Court has declared a judgment void, and the court of common pleas has stricken it off, and all proceedings thereunder, including a sale of the mortgaged premises to the mortgagee, the latter may subsequently present his claim in the orphans' court, on distribution of the proceeds of the sale of the mortgagor's estate.

Appeal from orphans' court, Washington county.

In the matter of the accounting of William M. Jackson, administrator of Stephen Smith, deceased. From a decree overruling exceptions to the auditor's report, M. H. Stevenson appeals. Affirmed.

Argued before MCCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

M. H. Stevenson, pro se. A. M. Todd and J. A. Wiley, for appellee.

MESTREZAT, J. The allowance of the claim of J. B. Tenan to participate in the fund for distribution was resisted by the appellant on the ground that it had been paid