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R. F. Downey and James E. Sayers, for appellant. J. B. Donley, T. S. Crago, and D. S. Walton, for appellee.

MESTREZAT, J. This was an action of ejectment brought April 1, 1898, by David Shroyer and George B. Shroyer against William D. Smith for (quoting from præcipe) "a tract of land situate in Cumberland town. ship, Greene county, Pennsylvania, adjoining lands of J. H. Rea on the south and west, lands of Thomas Hawkins on the west and north, lands of W. C. Huston on the north and east, and land formerly owned by Barnhart; containing seventy-three acres, more or less." Before the trial of the case, in November, 1901, David Shroyer died, and his name was stricken from the record as a party plaintiff. Both parties to the record, as thus amended, claimed title to the premises in dispute through David Shroyer, the father of the plaintiff and the grandfather of the defendant, to whom the land was conveyed by Johnson Waycoff by deed dated September 20, 1884, and duly recorded in the recorder's office of Greene county. The plaintiff's title is founded upon a deed from his father to him dated November 4, 1897, and duly recorded, by which the land in controversy was conveyed "to the said George B. Shroyer for life, and at his death to his wife, Elizabeth Shroyer, if she survive him and remains his widow, to her for life, and at her death, or upon her remarriage, then the reversion and remainder to the use of Edward C. Shroyer and John Shroyer, children of the said George B. Shroyer and Elizabeth Sbroyer, in equal shares in fee, to them, their heirs and assigns, forever.” The plaintiff put in evidence the record of the deed, and relied upon it as his right to recover in this action. The defendant, Wildiam D. Smith, claimed the premises by vir. ture of an alleged parol contract entered into oetween himself and David Shroyer just before or about the time he was of age, in 1884, by the terms of which Shroyer was to purchase a farm and devise it to Smith, in consideration of which the latter was to give up his trade of blacksmith, remove to the farm with his grandparents, and care for them, and work and manage the farm, until their death, or they were done with the farm. It is alleged by the defendant that, in pursuance of said contract, Shroyer pur. chased the farm in dispute, known as the "Harper Farm,” in 1884, and executed a will, dated March 16, 1887, by which he de vised said farm to Smith; that the latter removed to the farm with his grandparents, and took possession of it, and has fully and faithfully complied with all the stipulations of the contract to be performed by him. It is claimed by the defendant, and his evidence tended to show, that at the age of 13 months he became a member of his grandfather's family, and that, when he was between 10 and 11 years of age, his parents

(about removing West) permitted him to remain with his grandparents in consideration of the latter agreeing to give him $4,000 and certain personal property when he became of age. It further appears from the testimony that Smith continued to reside on the Harper farm with his grandparents until the death of his grandmother, in 1897, and that he still remains in possession of the farm. Prior to the removal of the parties to the farm, at the suggestion of his grandfather, Smith learned the blacksmith trade. The right of the plaintiff to recover was also resisted by defendant on the ground that David Shroyer, at the time he executed and delivered the deed to his son, the plaintiff, did not have sufficient mental capacity to execute the deed, and that it was procured through the undue influence of his son. Mr. Shroyer's wife died September 2, 1897. He left his grandson's home September 6th, and has since resided with the plaintiff. The two questions thus raised by the defense, to wit, the mental incapacity of David Shroyer at the time he executed the deed to his son, as well as the undue influence exercised upon him by the latter at that time, and the existence and sufficiency of the contract between David Shroyer and his grandson, and the fulfillment of its terms by the latter, were submitted to the jury by the learned trial judge in a clear and adequate charge. The verdict was in favor of the defendant, and, a new trial having been refused, judgment was entered on the finding of the jury. The plaintiff appealed.

The assignments of error suggest two prop. ositions for consideration: (1) Was the evidence, if believed by the jury, sufficient to establish the alleged agreement between David Shroyer and his grandson, and, if so, was the contract within the statute of frauds? (2) Was the defendant a competent witness, under the act of June 11, 1891 (P. L. 287), to testify to matters occurring in the lifetime of David Shroyer?

The principal and only witnesses on the part of the defendant who were present at the time the agreement was made were the defendant and Mrs. Coil, his mother. The latter testified at some length, giving the arrangement under which the defendant, as an infant, was taken to his grandfather's home, and detailing various conversations between her father and her son, leading up to and terminating in the contract which is set up here as a defense to this action. She testified that under the agreement the defendant "was to live with them [his grandparents), and farm and work for them, and, when they were gone, they would give him the farm”; that he was to get the farm by will; that he was then living with his grandfather, in Carmichaels, and the latter requested him to leave his trade, and go with his grandparents to the Harper farm, which he did. The date of the contract, as fixed by the witness, was in 1884, at or about the time the defendant

arrived at the age of 21 years. She also testified that her father told her in the presence of her son that, in compliance with the contract, he had made a will, and devised the farm to the defendant, and that he would get it when he (her father) was gone. The defendant, in his deposition, taken under a rule before the death of his grandfather, substantially corroborates his mother as to the terms of the contract between him and his grandfather. He says that at the time the agreement was made, and he entered upon the performance of it, he had acquired the blacksmith trade; that the inducement to leave his trade was the farm which he was to get by will. He further says that his grandfather told him "he had willed the farm to me, and I would get it. He would see that I got it.” The witness speaks of the several efforts made by his grandfather to purchase a farm before he bought the Harper farm, to which he removed with his grandparents in pursuance of the agreement. Smith also testifies that he performed his part of the contract faithfully; that his grandfather resided with him until after the death of his grandmother, in 1897, when he left without cause, and went to the home of the plaintiff, where he lived until his death. In addition to this testimony, other witnesses were called who testified to frequent conversations with David Shroyer in which he admitted the contract between him and his grandson, and his intention to carry out its terms. If the testimony is believed, the jury was fully warranted in finding that the contract between David Shroyer and the defendant was established in all its terms. The parties were brought face to face, and the evidence disclosed a complete contract made by them. It also authorized the finding that the defendant had performed his part of the agreement. It is true that David Shroyer left the home of his grandson and resided with the plaintiff during the last four years of his life, but there was no sufficient reason, in the judgment of the jury, for his action in doing so. It clearly appears, if the witnesses are credible, that David Shroyer had frequently admitted making the contract with his grandson, and that in pursuance thereof he had made a will devising the Harper farm to the defendant. This testimony is supplemented by a paper in evidence, purporting to be the last will of "David Sbroyer, of Cumberland township, Greene county, Pa.,” dated March 16, 1887, in which he devises "to William D. Smith the farm that I live on, and is known as the *Harper Farm,' adjoining lands of T. H. Hawkins, Wilson Huston, and others; also all my personal property that is thereon 'at my decease.” The paper was in proper form as a testamentary disposition of property.

It is contended by the learned counsel for the appellant that the will is not a sufficient writing to take the contract out of the statute of frauds; that it “says nothing about

the possession of any prior contract relating to the same; it does not define the quantity of land; it is entirely deficient witbout parol testimony to take it out of the statute of frauds”; and that the description is not sufficient to locate the land. It is not necessary that the will should set forth the possession of the premises by the devisees, or that there was a contract. These facts must appear, but may be shown by parol proof. Testimony was introduced to establish the contract, and to show that the devisee took such possession of the land as the agreement required in 1884, and has since continued such possession of it till the present time. This was followed by testimony, believed by the jury, that the will was made pursuant to and in conformity with the terms of the contract. The will therefore became a writ. ing embracing the terms of the agreement, and satisfied the statute of frauds. Brinker V. Brinker, 7 Pa. 53; Smith v. Tuit, 127 Pa. 341, 17 Atl. 995, 14 Am. St. Rep. 851.

We do not agree with appellant's counsel that the will is not sufficiently definite as to the quantity of the land, or as to description of the locality of the premises. It will be observed that it was similar to, and about as definite as, the description in the præcipe in this case. The will recites the fact that David Shroyer is “of Cumberland township, Greene county, Pa.," and devises "the farm that I live on, and is known as the 'Harper Farm,' adjoining lands of T. H. Hawkins, Wilson Huston, and others." So far as the will discloses the fact, this is the only real estate Shroyer possessed.

It follows from what has been said that the court below committed no error in submitting to the jury the evidence introduced to establish the contract, and in sustaining the verdict on that branch of the case.

The defendant was offered as a witness in his own behalf. His competency being objected to, the court below ruled as follows: "I will rule he is competent to testify to any facts occurring in the lifetime of David Shroyer in presence of George Shroyer.” From this ruling it is evident that the learned trial judge thought the defendant was made competent by the act of June 11, 1891. Both parties claim title under David Shroyer, who was dead at the time of the trial. The plaintiff claimed by deed, and the right of David Shroyer to make that deed was the matter in controversy. Shroyer was dead, and the defendant, whose interest is adverse to Shroyer's right to grant the premises, was offered as a witness in the case. His interest was adverse to the right of Shroyer to convey, and he was therefore incompetent to testify, under clause "e" of section 5 of the act of May 23, 1897 (Purd. Dig. 817). Baldwin v. Stier, 191 Pa. 432, 43 Atl. 326; Myers v. Litts, 195 Pa. 595, 46 Atl. 131. His incompetency to testify, under the facts disclosed by the record, was not removed by the act of 1891. The defendant, under this

act, could testify to any relevant matter occurring before the death of David Shroyer, only if such matter occurred between himself and another person, or in the presence or hearing of another person, who had been called and testified to such matter against the defendant. Under such circumstances, the act very properly permits the surviving party to testify. The inequality of the parties created by the death of one of them seals the lips of the other; but when that incquality has been removed by a living and competent witness, who testifies against the surviving party to any relevant matter occurring in the lifetime of the deceased, between the witness and the deceased or in the presence of the witness, the competency of the other and remaining party to the transaction is restored by the act of 1891, to the extent of permitting him to protect himself against the testimony of his adversary's witness. Here, however, when the defendant testified, his incompetency had not been removed by the testimony of any witness called by the plaintiff to testify to any matter occurring between the defendant and the witness, or in the presence of the latter, and which had occurred before the death of David Shroyer. The defendant was therefore clearly excluded as a witness by the act of 1887, and was not made competent to testify under the act of 1891. Nor was the error in admitting him to testify cured by the admission of the defendant's deposition, which was clearly competent. It is conceded by the appellee's counsel that Smith's “testimony itself was very material to the defendant's case." We therefore cannot assume that its admission was "harmless error," or that it did not injuriously affect the plaintiff's case.

If the defendant's title to the premises is sustained, the question of undue influence exercised by the plaintiff upon David Shroyer, and the condition of the latter's mind when he executed and delivered the deed to his son, become immaterial. These matters were properly disposed of by the learned trial judge.

The tenth assignment of error is the only one having any merit, and, for the reasons stated, it is sustained, and the judgment is reversed, with a venire facias de novo.

intended to establish a general system for the relief of the poor throughout the state, and repealed Local Acts March 21, 1865 (P. L. 501), April 11, 1866 (P. L. 608), and April 10, 1873 (P. L. 763), giving the commissioners of Clarion county authority to act as directors of the poor of such county, and providing for the erection by them of necessary buildiugs for the reception and employment of the poor.

3. Act June 4, 1879 (Þ. L. 78), being an act to establish a general system for the relief of the poor, does not exempt from repeal the local acts relating to the care of the poor in Clarion county by section 21, providing that the act shall not repeal any local act under which poorhouses have been erected, where at the time of its passage no poorhouse had beeu erected under such local act, nor had any lands beeu purchas. ed, or poorhouses commenced to be built.

Appeal from court of common pleas, Clarion county.

Petition by the commonwealth, on the relation of W. J. McEntire and others, for a writ of mandamus to J. A. Summerville and others, county commissioners. From an order refusing the writ, relators appeal. Reversed.

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

Harry M. Rimer, Harry E. Rugh, and Don C. Corbett, for appellants. George F. Whitmer, for appellees.

BROWN, J. The appellants were the petitioners below for a writ of mandamus to compel the appellees, commissioners of the county of Clarion, to purchase real estate and erect buildings for the accommodation of the poor of that county, and to furnish them relief and give them employment, in accordance with the provisions of the act of June 4, 1879 (P. L. 78). The writ was denied for the reason that local acts relating to the erection of a poorhouse in the county had not, in the judgment of the court below, been repealed at the time proceedings were instituted under the act of 1879, which was on June 20, 1898. On that day a petition, as required by the act, was presented to the court of quarter sessions of the county, in pursuance of which an election was ordered, resulting in a vote in favor of purchasing real estate, and erecting buildings thereon, that the design and purpose of the act might be carried out. The commissioners, however, refused to act; alleging that the act of 1879 was not in force in their county, in which view, as just stated, they were sustained by the court below.

The local acts held by the court below to have been in force were: Act of March 21, 1865 (P. L. 501); act of April 11, 1866 (P. L. 608); and act of April 10, 1873 (P. L. 763). By the first, the commissioners of Clarion county were authorized to "exercise and perform all the duties of directors of the poor of the said county," and to select and purchase such real estate as they might deem proper and necessary for the support and employment of the poor of the county, and take conveyance of the same, in the name

(204 Pa. 300) COMMONWEALTH ex rel. McENTIRE et al. V. SUMMERVILLE et al., County

Commissioners. (Supreme Court of Pennsylvania. Jan. 5,

1903.) STATUTES-REPEAL-RELIEF OF POOR-LOCAL

ACTS. 1. Statutes of a general nature do not repeal by implication charters and special acts passed for the benefit of particular municipalities, and, if the general and special acts can stand, they will be construed accordingly.

2. Act June 4, 1879 (P. L. 78), being an act to create poor districts, and to authorize erection of buildings for the relief of the poor, was

and for the use of the said county; and they act of June 4, 1879," as was said in Jenks were directed to proceed to build such build Township Poor District V. Sheffield Town. ings as might become necessary for the re ship Poor District, 135 Pa. 400, 19 Atl. 1004, ception and employment of such persons as "was intended to establish a general system might be a public charge on the townships for the relief and employment of the destitute of the said county, and to increase and en poor throughout the state. The general plan large said buildings and accommodations as or purpose of the act is that each county the same might become necessary. To en shall be or become a single poor district.” able them to do these things, they were au Contrasting the provisions of the acts of 1865 thorized to increase the county taxes. The and 1866 with those of 1879, it is most man. act of April 11, 1866, which was a supple ifest that the legislative intent was that those ment to that of 1865, provided for the ap of the latter were intended as a substitute pointment, first, and then the election, of for the former; and in such case, although three suitable persons, to be directors of the the later act contains no express words to poor of the county, who were “created and that effect, it must, on principle, as well as constituted a body politic and corporate, by in reason and common sense, operate to rethe name, style, and title of the directors of peal the former. Johnston's Estate, 33 Pa. the poor of Clarion county," and upon whom 511; Best v. Baumgarduer, 122 Pa. 17, 15 were imposed all of the duties that the act Atl. 691, 1 L. R. A. 356. “The rule of conof 1865 had directed the county commission struction on this subject has been stated in ers to perform. The act of 1873 was for the Johnston's Estate, 33 Pa. 511, where it is erection of a poorhouse in the township of held that (following Harcourt v. Fox, 1 Show. Piney, in the county of Clarion, with a pro 506) an atfirmative statute introductive of a vision that it might be lawful for any town new law on the same subject does imply a ship or borough in the said county to accept negative of the former law, if they are reits liabilities and privileges. Nothing, so far pugnant; or, as stated in Dillon on Municipal as is disclosed by the record, was ever done Corporations (section 87), for which he cites under this last act; and the admission of cases in our own and many other states: 'It the appellees is "that at the date of the pas is a principle of very extensive operation that sage of the act of June 4, 1879, there had statutes of a general nature do not repeal by not been erected poorhouse or home for the implication charters and special acts passed relief of the destitute, nor were there at that for the benefit of particular municipalities, time any controlled or managed, nor had but they do so when this appears to have lands been purchased or poorhouse com been the purpose of the legislature. If both menced to be built, within the said county the general and the special acts can stand, of Clarion or said poor district.”

they will be construed accordingly. If one The act of June 4, 1879, is entitled "An must give way, it will depend upon the supact to create poor districts, and to authorize posed intention of the lawmaker, to be colpurchase of lands and erection of buildings lected from the entire course of legislation.'" to furnish relief and give employment to the McCleary V. Allegheny Co., 163 Pa. 578, 30 destitute, poor and paupers in this common Atl. 120. wealth.” Its first section is "that for the That the legislature intended the act of purpose of furnishing relief to the poor, des 1879 to be not only a substitute for prior titute and paupers, giving them employment, local acts upon the same subject-matter, but and carrying out the provisions of this act, that it should operate as a repeal of them, is each county of this commonwealth is hereby most manifest from the twenty-first section, created a district, to be known as

which is: “This act shall not be construed County Poor District.'” It places the man to repeal any local act or acts under which agement of the poorhouse in the hands of poorhouses or homes for relief of the destithe county commissioners, instead of the di tute have been erected or are now managed rectors of the poor of Clarion county. The or controlled, nor repeal any general law uncommissioners cannot purchase real estate der which lands have been purchased or and erect buildings until authorized to do so poorhouses have been commenced to be by a popular vote, but by the acts of 1865 built.” So clearly did the legislative mind and 1866 no such popular approval was re think it had expressed itself in the first 20 quired. The conveyance and title for the sections as intending to repeal all local acts, real estate to be acquired for the use of the and that its intention would be so under: county poor district are to be made and tak stood, that it inserted the last and saving en in the name and for the use of the poor clause, where, if the appellants cannot find district. By the local acts, the money for the their exemption from the act, there is none purchase of the land and the erection of the for them. When the legislature declared buildings, and the expenses of maintaining what local acts alone should be saved from them, was to be provided for by a county repeal by this substitutionary act, those not tax, while under the act of 1879 there is to be within the exception were without it. What a taxatiou for poor purposes; and, to enable was not saved by the act fell under it, and the commissioners to carry out the provisions the legislative intent cannot be understood of the act, they are authorized to issue bonds otherwise. On June 4, 1879, no poorhouse to be payable by the poor district. “The and home for the relief of the destitute had

been erected or was managed or controlled Plaintiff presented these points: under any local act in Clarion county, nor (1) As against the alleged title of the dehad lands been purchased or poorhouses fendant, which had its inception by warrant commenced to be built; and the county is dated March 19, 1889, on which patent was not within the saving clause of the act. issued on August 18, 1899, the sale to Brien "Expressio unius est exclusio alterius.” “The & Coleman of March 11, 1808; the power exception of a particular thing from general of attorney from Dorothea Brien to Abrawords proves that, in the opinion of the law ham Morrison, dated August 8, 1845, and regiver, the thing excepted would be within corded June 26, 1847; the deed of Dorothea the general clause, had the exception not Brien, by her attorney in fact, Abrabam been made.” Marshall, C. J., in Brown v. Morrison, to Henry McKenzie, dated DecemMaryland, 15 Wheat. 419, 438, 6 L. Ed. 678. ber 31, 1819. and recorded May 24, 1889,

Whether the acts of May 8, 1876 (P. L. with the recital therein of conveyance by 149), March 24, 1877 (P. L. 40), and May 18, 'secretary of commonwealth of Pennsyl1878 (P. L. 63), repealed the local acts of vania, by deed dated January 4, 1843, to 1863, 1866, and 1873, we need not decide, in Dorothea Brien, in fee'; the last will and view of what we have said as to the effect testament of Henry McKenzie, dated Febof the act of 1879. Its constitutionality does ruary 23, 1850; the petition of the executor not seem to be questioned by the appellees; of the last will and testament of Henry Mcand, though referred to in a passing way by Kenzie, deceased, to sell the land claimed counsel for the appellants, we need not con by the plaintiff in this action, with the orsider it here.

der of the court, under date of September The order of the court below, dismissing 13, 1853; the sale of the land as confirmed the petition of the appellants, is reversed by the court on December 5, 1853; the deed and the record remitted, with direction that from Sylvester McKenzie, executor, to Bera writ of peremptory mandamus issue, as nard McColgan, dated December 22, 1853. prayed for in the petition; the costs below and recorded November 20, 1854, with the and on this appeal to be paid by the appel-recitals therein; the deed of Bernard Mclees.

Colgan to John Reilly, dated March 21, 1871, and recorded April 22, 1889, for the land

claimed in this case by the plaintiff, with a (204 Pa. 270)

recital therein as follows: "Being the same REILLY V. MOUNTAIN COAL CO.

tract of land, inter alia, which the secretary (Supreme Court of Pennsylvania. Jan. 5, of the commonwealth of Pennsylvania, by 1903.)

deed dated January 4, 1843, and recorded PUBLIC RECORDS DEPUTY SURVEYOR'S in recorder's office of Cambria county, in

BOOKS—WARRANTS-RETURN SURVEY-
DEED FROM STATE-ACKNOWLEDGMENT.

Record Book, vol. 7, page 357, etc., conveyed 1. Under Act 1785, directing that every dep

to Dorothea Brien, and Abraham Morrison, aty surveyor shall make fair and clean entries attorney in fact of Dorothea Brien, by deed of all warrants put into his hands, the book

dated December 3, 1849, conveyed to Henry provided by him for that purpose is a public record.

McKenzie, and Sylvester McKenzie, executor 2. Where a deputy surveyor entered into the of the last will and testament of Henry book which he was directed to keep under the McKenzie, by deed dated December 22, 1853, act of 1785 a warrant, as well as a plot of the

and recorded in recorder's office of Cambria surrey made by him under the warrant, but made no return of the survey, and another dep

county, in Record Book, vol. 13, page 201, aty surveyor returned the survey more than 50 sold and conveyed, by virtue of an order of years thereafter, after having examined it on

the orphans' court of Cambria county, to the ground, and found it to be correct, the title remained good in the original warrantee or his

Bernard McColgan, party hereto'; the deed successors, where the rights of no third parties of F. H. Barker, treasurer of Cambria counhave intervened.

ty, to S. W. Davis, dated June 8, 1896, re3. As prior to Act March 14, 1846, no law re

corded July 9, 1898: ‘All that certain tract quired that patents or deeds from the commonwealth should be acknowledged before any of

of land held in the name of John Reilly, in ficer, to entitle them to record, a deed by the Summerhill township, Cambria county, concommonwealth for land owned by it, executed taining four hundred and thirty-nine acres'; in the name of the commonwealth, and under its great seal, before that date, could be re

deed of assignment of S. W. Davis and Sacorded without acknowledgment.

rah J. Davis, his wife, to John Reilly, dated

July 8, 1898, and recorded July 9, 1898; asAppeal from court of common pleas, Cam

sessment of the land claimed by the plaintiff bria county; Barker, Judge.

to John Reilly from the year 1880 conAction by John Reilly against the Moun

tinuously to this date,—the jury may find a tain Coal Company, in ejectment. Judg

good title vested in John Reilly; and the ment for defendant, and plaintiff appeals.

jury find in addition thereto, from the eviReversed.

dence, that the location contended for by The court refused to admit in evidence a the plaintiff under the warrant and survey deed in the name of the commonwealth, un of John Nicholson is the true location of the der its great seal, to Dorothea Brien, record land claimed by the plaintiff, the jury may ed in 1814, in Cambria county, but not ac find a verdict in favor of the plaintiff.” Not knowledged.

answered.

OF

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