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ga hela Nav. Co. v. United States, supra. The United States, is just and full compensation appraisal must be made, having in mind what to said water company for each and every we have already said concerning the charac thing of value of which it is to be deprived ter and duration of the franchises and the by this taking; that, in addition to the spereasonableness of rates. While, with these cial property covered by request 4, the plant, limitations, the owner is entitled to receive property, franchises, rights, and privileges the value of the franchises, having reference now held by said water company within the to their prospective use as now developed, territory embraced by this act contain disand to the future development of their use, tinct elements of value-First, as an asset; consideration must also be had of the fact and, second, as a source of income, having, · that further investment may be necessary to or not, present and prospective net earning develop the use, and of the further fact that power; that by the taking under this act said at any stage of development the owner of water company will be deprived, wholly and the franchise will be entitled to charge only forever, both of said asset and of said source reasonable rates under the conditions then ex of income; that just compensation to said isting. But sub'ect to such limitations, we company for what is thus compulsorily taken think it should be said that the owner is en from it requires that the sum to be awarded titled to any appreciation due to natural caus as a substitute therefor shall be the full equives,-such as, for instance, the growth of the alent of everything taken, both in value as cities or towns in which the plant is situated. an asset, and in net earning power, and such Cotting v. Kansas City Stockyards Co. (C. C.) a sum as, in the sound judgment of the ap82 Fed. 850.

praisers, will be the full money equivalent of Defendants' request 12, "that the fact that all the plant, property, franchises, rights, and the franchises, rights, and privileges of said privileges aforesaid, and at the same time, if Maine Water Company are to be taken under prudently invested at fair current rates of this act in no respect destroys or impairs their interest, will yield to said company the same value to said water company, and cannot di net incomes and revenues, and for the same minish or affect the amount to be awarded as term, that it will be deprived of by this takjust compensation therefor,” is approved, and ing; the net earning power, incomes, and the instruction should be given.

revenues aforesaid to be determined under Subject to the suggestions we have made reasonable water rates, after due allowance, under defendants' request 11, their request 13 on the one hand, for operating expense and is approved, and the instruction should be giv maintenance or depreciation, and, on the other

It is as follows: "That in estimating hand, with due regard to the probable future said franchises, and the present and future increase or decrease thereof under all condinet earning power included therein, the ap tions affecting the same." praisers should duly weigh the nature and ex Some portions of this request have already tent of these franchises, rights, and privileges, been considered so fully that it is unneceswhether the same are perpetual or otherwise; sary to repeat. It is doubtless true that the also, so far as proved, the rights of the Maine property to be taken, both plant and franWater Company under all existing contracts, chises, are to be appraised, having in view and the value thereof; the extent of existing their value as property in itself, and their business, and of the net incomes or revenues value as a source of income. The physical now derived or derivable therefrom; the ex property has value irrespective of the franisting demand for new and additional sery chise, and the franchise without reference to ices, and for the development and increase of the physical property. But these two kinds said business, incomes, and revenues; the of value practically shade into each other. past and probable future growth or decay The value of the physical property is enhanced of the territory now served, or capable of be by the existence of franchises which make it ing served, under said franchises, in popula usable. The value of franchises is enhanced tion, in wealth, and in needs and uses for by the existence of physical property by water to be supplied by some water system; which they may be profitably exercised. and the past and probable future increase or There are these items of property, but only decrease in said net incomes and revenues as one entire system. There are all of these ele affected by these or other surrounding condi ments of value, from which is to be estimated tions; also the fact that by said taking said the value of the entire property, tangible and water company will be wholly and forever intangible, as a whole. The plaintiff is not deprived of all said franchises, rights, priv. to take the physical property without the ileges, earning power, incomes, and revenues, franchises, nor the franchises without the and that it is the duty of said appraisers to physical property. It will pay one gross sum make, in their sound judgment, just and full as an entire value, and take all the property. compensation to said water company for all The consideration of the elements will be usethe same."

ful only as it will enable the appraisers to fix Defendants' request 14, is follows: the just compensation to be paid for the en"That the true measure of value, under the tire property as a whole. terms of this act, and under the requirements But we cannot assent to the proposition of the constitutions of this state and of the that the capitalization of income even at rea

en.

as

rules stated in these requests, so far as they have been approved by this court, and as limited or explained in this opinion.

So ordered.

sonable rates can be adopted as a sufficient or satisfactory test of present value. Such a capitalization would fix at the present time a specific value which would continue for all time to come, as a fixed and unvarying source of income, no matter how conditionsómay be changed.

Our attention has been called to no case, resting on the same principles as this one does, where the capitalization of profits has been adopted as the test of present value, certainly not in this country. Take, for instance, the case of Edinburgh Street Tramway Co. v. Lord Provost, App. Cas. 1894, p. 456, cited by defendants. It does not support the doctrine. In that case the arbitrator declined to value the tramway lines by capitalizing the rental, and upon appeal his assessment was affirmed, and the appeal dismissed. It was held that the statute under which the proceedings were had limited the appraisal to construction value, which the arbitrator had considered in the light of the fact that the tramways were then successfully constructed and in complete working condition; in other words, that the company was a going concern. Lord Watson, in the same case, at page 475, said that valuation by rental “is not a satisfactory method in the case of a tramway line which has never been let, and has no competing line within its district.” How much importance is attributed to the last suggestion, is not stated. See National Waterworks Co. v. Kansas City, 10 C. C. A. 653, 62 Fed. 853, 27 L. R. A. 827; Newburyport Water Co. v. Newburyport, 168 Mass. 541, 47 N. E. 533. If the franchises were exclusive, if they were perpetual, and if it could be known that what are reasonable rates now would continue to be reasonable, there would be more ground for sustaining such a test. But the franchises are not exclusive. Competition is possible,-even, as the event has shown, more than probable. They are not perpetual, but may be repealed. And what may be reasonable rates at any given time will depend upon conditions which not only may vary, but are likely to vary.. Therefore the basis for capitalization is too uncertain to afford a satisfactory test of val. ue. By this we do not mean to say that, while not a test, present and probable future earnings at reasonable rates are not properly to be considered in determining value. We have already stated that they are.

Defendants' request 15 raises no new question of law. It is sufficient to say the constitution of the United States requires that just compensation should be made to said wa. ter company for all its property, of every nature, taken under the act in question, at its full value, not to the taker, but to the seller.

To conclude: The appraisers should be in. structed to receive and consider all evidence offered, so far as admissible under the general rules of law, which is pertinent under the

(204 Pa. 295) BOYER V. WEIMER et al. (Supreme Court of Pennsylvania. Jan. 6,

1903.) FRAUDULENT CONVEYANCES BONA FIDE GRANTEE-RIGHTS ACQUIRED-EVIDENCE

-DECLARATIONS OF GRANTOR. 1. Under St. 13 Eliz. c. 5, bona fide purchasers from a fraudulent grantor are protected, and such protection extends to a purchaser from a fraudulent grantee.

2. In ejectment defendant claimed title as purchaser at a sheriff's sale on a judgment rendered several months after defendant in execution had conveyed the property to plaiutiff's grantor. There was no evidence of fraud in such conveyance.

Held error for the court to charge that, if the conveyance by defendant in execution was fraudulent as to creditors, it was, void, and plaintiff's grantor acquired no title, and could convey none to plaintiff.

3. Where the good faith of a transfer has been attacked by creditors of the grantor, and some evidence has been introduced of an intent to hinder or delay creditors, subsequent declarations by the grantor are admissible.

Appeal from court of common pleas, Cambria county.

Action by Harry Boyer against S. A. Weimer and A. L. Keagy. Judgment for defendants, and plaintiff appeals. Reversed.

At the trial it appeared that the title to the land in controversy was originally in Annie D. Keck. On January 21, 1895, Mrs. Keck and her husband conveyed the land to Savilla Allison. On November 29, 1900, Sa. villa Allison conveyed the land to the plaintiff, Harry Boyer. Both conveyances were by deeds of general warranty. On December 12, 1895, S. A. Weimer secured a judg. ment against Annie D. Keck, and on execution under said judgment bought in the property at sheriff's sale. Weimer secured possession of the premises from a tenant. Under objection and exception the court admitted evidence of declarations made by Mrs. Keck after the execution of the deed from her to Mrs. Allison. The court also admitted under objection and exception the record in the case of Weimer v. Keck.

The court charged in part as follows: "There is one thing in passing that we want to call your attention to (we believe the record will show some little evidence on this question), namely, if there is any evidence to satisfy the jury that Savilla Allison was a married woman at the time she made the deed, the title of the plaintiff in this case would not be perfect; in other words, his title would not be good. Savilla Allison, if she were a married woman, could not convey a good title without her husband join

.

f 1. See Fraudulent Conveyances, vol. 24, Cent. Dig. $ 620.

*

ing in the conveyance. On the other hand, entitled to a peremptory direction in his fashe could transfer title if she were not a vor. The court, however, instructed the jury married woman at the time of the transfer. that, if the transfer by Mrs. Keck was made

We have permitted counsel for de not in good faith, but for the purpose of fendants to call, as if upon cross-examina defrauding her creditors, it was void, and tion, Annie D. Keck, who made that trans that Satilla Allison acquired no title, and had fer, and we permitted them to call her be none to convey to the plaintiff, whose only cause she was an interested person. If the remedy, if he was misled, was by an action transfer was not a bona fide one, then the on a warranty in the deed to recover back plaintiff in this case was misled, and he, hay the purchase money. This is not the law. ing a warranty deed, as shown by the evi It is uue that, as against creditors defrauddence, might recover his purchase money. ed, Savilla Allison's title was invalid, if she

We submit all the evidence to you, had notice or knowledge of the fraud of her and advise you that you can pass upon that grantor; but the title of the plaintiff could be evidence. If it satisfies you that the trans impeached only by proof of notice affecting fer from Mrs. Annie D. Keck to Savilla Alli him, or of his knowledge of the fraud. Bona son was made for the purpose we have stat. fide purchasers from a fraudulent grantor ed, and was a fraudulent transfer, then, on are protected by the statute of 13 Eliz. c. 5, the principle that fraud vitiates all contracts, and it is a settled rule that the protection that contract would be void, and would pass extends to a purchaser from a fraudulent no title to Savilla Allison, and, having no grantee. Hood v. Fahnestock, 8 Watts, 489, title, she could not convey any to the plain- 34 Am. Dec. 489. The deed of a fraudulent tiff in this case. Now, gentlemen, it nar. grantor is not a nullity, nor ineffective to rows down to that."

devest his title as against the paramount inVerdict and judgment for defendants. terest of a bona fide purchaser. Plaintiff appealed.

As the case goes back for trial, the excepArgued before McCOLLUM, C. J., and tions to the admission of declarations made MITCHELL, DEAN, FELL, BROWN, MES by Mrs. Keck after she had parted with the TREZAT, and POTTER, JJ.

title require notice. The general rule that

the declarations of a grantor made after the S. L. Reed, for appellant. Robert S. Mur

execution of a grant cannot be used to imphy, Thomas E. Murphy, D. P. Weiner, G.

peach it has been so far modified that, when C. Keim, H. E. Baumer, and R. E Creswell,

the good faith of a transfer has been attackfor appellees.

ed by creditors, and some evidence has been

advanced to show a common purpose or deFELL, J. Apparently there was much sign by the parties to hinder, delay, or demerit in the defense, but the case was sub fraud creditors, subsequent declarations by mitted to the jury on grounds that are un. the grantor are admissible. Hartman v. Diltenable. The real estate for which eject ler, 62 Pa. 37; Souder v. Schechterly, 91 Pa. ment was brought was conveyed in January, 83. The vital question in this case was 1895, by Annie D. Keck to Savilla Allison, whether the plaintiff had notice or knowl. who, in March, 1900, conveyed it to Henry edge of a fraud on the creditors of Mrs. Boyer, the plaintiff. In December, 1895, Keck. Until there was some testimony tend. more than 11 months after Mrs. Keck had ing to show knowledge on his part, the tesparted with her title, a judgment was ob timony objected to was inadmissible. As the tained against her, and in September, 1897, record of the trial then stood, there was noththe real estate was sold by the sheriff, under ing to impeach his good faith as a purchaser proceedings under the judgment, as her prop for value, and the testimony should have erty. The defendant was the purchaser at been excluded. the sheriff's sale, and obtained possession of The suggestion in the charge that, if Sathe property from the tenant who occupied it. villa Allison was a married woman at the It will be seen that the plaintiff had a per time of her transfer to the plaintiff, she still fect record title. The defendant had none, held the title, as her deed was ineffective as the judgment under which the sale was without the joinder of her husband, was not made was not a lien. The defendant, there warranted by the testimony, even were it fore, could succeed only by showing that both competent for a third party to question the of the transfers by which the title was vest conveyance on that ground. ed in the plaintiff were collusive and fraud To what extent the possession of the deulent. He succeeded in showing circumstan. fendant was notice to the plaintiff when he ces connected with the transfer from Mrs. acquired title, and whether the burden was Keck to Savilla Allison that cast doubt on on the plaintiff after notice to prove the pay. the good faith of the parties to that transfer; ment of the purchase money, are matters but there was not a word of competent tes not raised by the exceptions, and do not at timony that tended to impeach the convey. this time call for decision. ance to the plaintiff. As the case stood at The judgment is reversed, and a venire the close of the testimony, the plaintiff was facias de novo awarded.

(204 Pa. 305)

by a chancellor in a court of equity. The ULLOM V. HUGHES.

petitioner alleges that respondent's rights un(Supreme Court of Pennsylvania. Jan. 6,

der said agreement or option have been lost 1903.)

by his failure to perform his part of the

agreement. Under the act of June 10, 1893 QUIETING TITLE-EXCLUSIVE REMEDY-REMOVING CLOUD-OPTION TO PURCHASE.

(P. L. 415), and the authorities of Del. & 1. Act June 10, 1893 (P. L. 415), entitled

Hudson Canal Co. v. Genet, 169 Pa. 343, 32 "An act to provide for the quieting of title to Atl. 559, and McGarry V. McGarry, 9 Pa. lands," does not provide an exclusive remedy,

Super. Ct. 71, the court of common pleas is but merely a cumulative oue, and either party may go into equity for the rescission of a con

required to find two facts to be true from tract or for specific performance thereof, and a

the petition before said act is mandatory of vendee has the further choice of ejectment or an issue. They are the facts of the petitionan action for damages for breach of the con

er's possession and the (respondent's) or adtract. 2. Where an owner of land has given an op

versary's denial of the title. Of the fact of tion thereon, and claims that such option has the petitioner's possession there is no denial, not been fully exercised, he is entitled, under

and we so find the fact of the petitioner's Act June 10, 1893, providing for the quieting of titles to land, to sue to remove the clouă possession in this case; but we do not find from his title.

as a fact the denial by this adversary of the 3. In an action to quiet title under Act June petitioner's title, but an affirmance of the pe10, 1893, where plaintiff claims a failure by de

titioner's title by his adversary to said coal fendant to exercise option to purchase land, defendant may disclaim as directly provided in

and mining rights. By the agreement, nothe act, or may deny default on his part, and tice of acceptance, and a tender of the purask for a conditional verdict as in ejectment, or chase money, as set up by respondent, he may set up a default on the part of the vendor, and recover damages for breach of contract.

has but an equity in the coal and mining

rights, of which the legal title and possesAppeal from court of common pleas, Greene

sion are both in the petitioner, and which, county; Taylor, Judge.

the respondent contends, under a contract Action by Harrison Ullom against William

between them, should be conveyed to the T. Hughes to quiet title. From an order

lessee's assignees. If it can be held under refusing an issue, plaintiff appeals. Revers

the undisputed facts of this case that the ed.

act of June 10, 1893 (P. L. 415), applies, on From the record it appeared that on Au a trial on an issue framed, before the regust 9, 1899, Harrison Ullom, an owner of spondent could recover, if the facts found lands in Greene county, gave to William T. by a jury were with him, he would have to Hughes an option in writing to purchase the tender the purchase money, and this would coal under the said lands and a portion of be, in effect, turning an action of ejectment the surface. The option ran until Decem into a proceeding for specific performance ber 1, 1899. Hughes assigned his interest in of a contract, an existing remedy for the enthe option to one Slease. Slease, on Novem forcement and determination of contracts ber 30, 1899, caused a notice of acceptance that the act of June 10, 1893, was never into be served on Ullom. The agreement or tended and does not supersede; nor does said option was subsequently recorded. Each act provide a new remedy to settle and adparty denied that the other had performed judicate questions arising out of contract, the covenants undertaken in the agreement. nor a new remedy for the specific perform

Taylor, P. J., filed an opinion, in which, ance or cancellation of contracts relating to after reciting the agreement, he found as fol the sale of real estate." lows:

Argued before McCOLLUM, C. J., and “The terms of the agreement or option con MITCHELL, DEAN, FELL, BROWN, tained therein, as above set out, are not in MESTREZAT, and POTTER, JJ. dispute between the parties. The only question arising under this agreement or option

A. H. Sayers and Joseph Patton, for apbeing whether or not the parties to it and

Dellant. D. C. Cumpston, A. F. Silveus, and

M. R. Travis, for appellee. their assignees have complied with its terms, on the one hand, to be entitled to a decree of specific performance, and, on the other hand, MITCHELL, J. The plaintiff, being the to a decree of cancellation of the contract. owner of land, gave an option to the assignor Under the undisputed facts of the case as of the present defendant to purchase the coal disclosed by the petition and answer, does and part of the surface upon notice of acthe act of June 10, 1893 (P. L. 415) apply? ceptance before a certain date, payment, etc., The respondent makes no denial of petition the plaintiff covenanting on his part to furer's title or possession of the coal as describ nish a survey, abstract of title, and general ed in said agreenient, except in so far as the warranty deed, clear of incumbrances. As to same are affected by the terms of said agree these facts there is no dispute between the ment and notice of acceptance, or that he parties, but each charges the other with subhas ever paid the purchase money so as to sequent default in the performance of his devest petitioner's title, but that the petitioner covenants. The learned judge below held and his wife contracted to convey the same that there was no denial of plaintiff's title, to him, which contract he asks be enforced but that defendant's claim was in affirmance

get rid of the cloud on his title by going into equity. Under this act he may have the facts of acceptance or default determined by a jury. The act expressly assimilates the proceeding to an equitable ejectment, and there is no valid reason why the remedy should not have a liberal construction in furtherance of the expressed purpose. If the plaintiff is in possession under claim of title, and the defendant makes an adverse claim, whether by title paramount or title dependent by contract on his own, the dispute or denial within the contemplation of the act exists, and a case for an issue is made out. The control of the court over both the form and the substance of the issue is ample, and should be exercised to fit the requirements of the real' controversy between the parties. The defendant, on coming in to answer the rule, may disclaim, as provided in the act, or he may deny default on his part, and ask for a conditional verdict, as if in ejectment; or he may set up a default by the plaintiff, and elect to recover damages under a plea of set-off, as in an action for breach of contract. The court should mold the issue according to the circumstances, so as to reach a trial on the merits.

Judgment reversed, and an issue directed to be awarded.

of it, and an assertion of a mere equity in subordination, and dependent upon it under the contract. He held, therefore, that the case was not within the statute. This view was erroneous, in taking too narrow a definition of a denial of title. The defendant here, it is true, does not deny the plaintiff's former title, or assert in himself a title paramount; but he does deny the plaintiff's present title and right of possession by a claim that it has passed out of plaintiff to himself under the agreement. This is exactly the kind of denial of title that is involved in an equitable ejectment on the contract of sale,--denial of present title by affirming prior title, but averring that it has passed to the vendee. It is conceded on all hands that such an ejectment would lie here, and the statute expressly gives the verdict in an is. sue under the present rule the same force and effect as in an ejectment on an equitable title. The act of June 10, 1893 (P. L. 415), is entitled "An act to provide for the quieting of titles to land,” and provides that any person in possession of land and claim. ing to hold or own possession by any right or title whatsoever, whose "right or title or right of possession shall be disputed or denied,” may apply by bill or petition and obtain a rule, etc. The intent of the act is to give an owner in possession an additional, speedy, and convenient remedy for immediate trial and adjudication of any claim of adverse title to part or the whole of his land. It tends to equalize and assimilate the position of claimants of title, whether in or out of possession. As was pointed out in Del. & Hudson Canal Co. v. Genet, 169 Pa. 343, 32 Atl. 559, it is another step in the same direction as the enlargement of equitable remedies,—the Acts of May 21, 1881 (P. L. 24) March 8, 1889 (P. L. 10), and May 25, 1893 (P. L. 131, etc.), which Lave relieved the owner in possession from the common-law necessity of inactive waiting for an attack on his title, and have enabled him to force an immediate contest and settlement. That case logically determines this.

The consequences deprecated by the court below do not follow. The act of March 21, 1806, bas no bearing on the case, for the act of 1893 does not give a new right enforceable only in the prescribed way, but merely a new remedy for a right always existing to defend title and possession. And the new remedy is plainly intended to be cumulative only. All the old remedies remain unaffected. Either party may go into equity,-the vendor for rescission or cancellation of the contract, and the vendee for specific performance. And the vendee still has the further choice of an ejectment, or an action for damages for breach of the contract. In either vi these ways he can have his case tried by a jury. But formerly the vendor had no such remedy. On a mere option, which he did not admit had been accepted, as in the present case, he could not sue at law, and could only

(204 Pa. 310) SHROYER v. SMITH. (Supreme Court of Pennsylvania, Jan. 5,

1903.) EJECTMENT-EVIDENCE--PAROL GIFT-STAT

UTE OF FRAUDS-WITNESS-COMPETENCY.

1. Plaintiff in ejectment claimed by deed from his father Defendant, who was a nephew of plaintiff, clained under a parol contract with plaintiff's father before the deed to plaintiff, under which contract he took possession. The mother of defendant testified that after he became of age his grandfather, in presence of witnesses, agreed that, if defendant would give up his trade and live with him, he would leave him the farm in controversy. There was evidence of declarations by the grandfather confirming such promise, and a paper signed by the grandfather was introduced, purporting to be a will. leaving the land in question to defendant. Held, that the evidence was sufficient to sustain a verdict for defendant.

2. An instrument purporting to be a will, leaving land which had been given to another by parol to such person, was a sufficient memorandum in writing, within the meaning of the statute of frauds.

3. Where defendant in ejectment claimed under an alleged promise of his grandfather to convey the property to him by will, he was in. competent to testify as to such agreement after the death of his grandfather.

Appeal from court of common pleas, Greene county; Crawford, Judge.

Action by David Shroyer and George B. Shroyer against William D. Smith. Judgment for defendant, and, on death of David Shroyer, plaintiff G. B. Shroyer appeals. Reversed.

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

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