by statute. Section 10 of the act of 1891 expressly gives the right of appeal to abutting owners from ordinances "opening, widening, straightening, extending, grading, paving, macadamizing, or otherwise improving any street or alley." Not a word is said about an appeal from ordinances vacating streets. It is argued by appellee's counsel that the words "otherwise improving" would embrace the vacating of a street. They do not convey that meaning to our minds, and were doubtless inserted to meet the evergrowing new methods of paving, some of those then well known being enumerated. If the act were to be passed to-day, it is probable asphalting would have been named. The word "vacating" could as easily have been inserted as the words "opening, widening," etc., altogether eight words; but it was not. "Vacating" is not suggestive of improvement, but of abandoning, abolishing, or destroying. We do not think the words "otherwise improving" within any reasonable interpretation give the right of appeal for vacating. The act contains 12 sections, and is very comprehensive. It expressly gives the right of appeal only in the tenth section, and, as we think, intentionally omits giving it there from ordinances vacating streets.

The Legislature was doubtless aware of the law as it then stood with reference to this particular exercise of municipal power. The right of appeal on assessment of damages for private property taken for public use by municipal and other corporations, and the right to a trial by jury to either party according to the course of the common law, are guarantied by the eighth section of the sixteenth article of the Constitution. But whether, in any given case, private property has been taken, and the use to which it is sought to appropriate it is a public one, are necessarily judicial questions to be determined by the courts; and this is the declared law in all the states and in the United States courts. The facts here do not, as we have more than once decided, bring the case under the section of the Constitution referred to.

In Paul v. Carver, 24 Pa. 207, 64 Am. Dec. 649, this court decided that the Legislature had the power to vacate a public street without the consent of the abutting owners; that such an act was in no sense of the word a taking of private property for public use, but was nothing more than a surrender of the public right of way to the owners of the soil. In McGee's Appeal, 114 Pa. 470, 8 Atl. 237, it was held that the power of the Legislature to vacate streets and to invest municipal corporations with the same power was not restricted by the Constitution. The same was held in Wetherill v. Penna. R. R. Co., 195 Pa. 156, 45 Atl. 658. In this last case Justice Mitchell, in rendering the opinion of the court, says: "But vacating a street takes no property from any one. It merely restores to abutting owners their portion of the

land freed from the servitude of the public way. There is no constitutional right to damages, even on the ground of injury, under the present Constitution." As under the law thus established the abutting owner could not be damaged in his property by the vacation of a street or highway, he had no tangible interest which gave him a right of complaint. A sentimental interest or artistic taste might be shocked by the closing up of an ancient street or highway, but this affected no property right, and the complainant was not given the rights of an appellant. The Legislature, by the act of 1891, adopted no new rule when it did not confer the right of appeal for vacation of a street on the abutting owner. It merely accepted the law as it stood. He was not damaged, and therefore had nothing to appeal from.

We think the court had no jurisdiction to entertain the petition, and, even if it had on the record, the decree was erroneous. Therefore the decree of the court below in Nos. 136 and 137, October term, 1902, are both reversed, and the petitions to the court of common pleas to quash ordinances vacating Fort street and Point Alley are both dismissed.

POWER OF ATTORNEY-CONSTRUCTION-RATIFICATION OF ACTS.

1. An owner of unimproved lands situated in a city authorized her attorney in fact to lay out lots in such form and fronting on such streets, lanes, alleys or areas as in his judgment might be advisable. Held, that such attorney could petition the common council to vacate streets, and if his act was afterwards formally ratified by his principal, there was no ground to attack the validity of the ordinance passed in response to such petition.

Appeal from Court of Common Pleas, Allegheny County.

Bill by the Daughters of the American Revolution of Allegheny County against Mary E. Schenley and others. From a decree dismissing the appeal, the plaintiff appeals. Affirmed.

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

John Reed Scott, J. W. White, and S. W. Childs, for appellant. William W. Smith and T. D. Carnahan, City Sol., for appellees.

DEAN, J. This bill was filed, praying the court to quash the ordinances in Nos. 136 and 137, October term, 1902, which the same court was petitioned to quash in proceedings at law. The appeals in those cases and from this decree in equity were all argued together before us. We reversed the decree of the court below in Nos. 136 and 137, quashing the ordinances of councils vacating Fort

street and Point alley in opinion handed down herewith. 54 Atl. 366. Anticipating such possible or probable event, the Daughters of the American Revolution filed this bill, substantially averring the same facts as in the petitions to quash, and praying for the same decree. The answer denied the averments of the bill. The court below, after hearing, dismissed the bill for the reason that plaintiffs had already invoked the statutory remedy, and therefore could have no relief in equity. This decree is directly in appellees' favor, but it can do them no harm except in so far as the findings of fact by the learned judge of the court below may be inconsistent with it. In the ninth finding of fact the court says: "At the time of the signing and presentation of the petition to councils and the passage of the ordinances, Mary E. Schenley had no knowledge of the transaction. Some time after the passage of the ordinances she first heard of it, and was satisfied with what John W. Herron had done, and afterwards ratified his act." This finding is too narrow. It does not bring out the scope and full significance of the fact. Mrs. Schenley was a resident of London, England. To manage, control, and supervise her extensive and large property holdings in Pittsburg, from the very nature of the case, she could not minutely know all the specific acts necessary to or incident to the proper management of her estate. By her letter of attorney of July 23, 1900, she conferred on him very large powers over her property. It does not specifically authorize him to sign for her petitions to councils for vacation of streets and alleys on which her land abutted, but such power is plainly implied in the fifth clause of the letter, thus: "The said John W. Herron is also hereby authorized and empowered to lay out lots in such form and fronting on such streets, lanes, and alleys or areas as, in his judgment, may be advisable." She owned many large plots of land, unimproved, and which, when streets and alleys were opened, would cut up into many city lots suitable for occupation and building. This both the principal and attorney knew. She desired to utilize and realize on this property. It was practically useless without streets and alleys; so she gave her attorney full power to lay out lots in such form and fronting on such streets, lanes, and alleys as in his judgment might be advisable. Take the plot before us, 91⁄2 acres, the whole of which was hers, and over which she had full control. What the buying or leasing public would demand in means of access to the lots carved out of this large tract of land was wholly problematical when the power was executed. It might desire the lots to conform to older streets extended through this tract in accordance with general plans, and the vacation of streets and alleys already laid out. The demands, and even whims, of the public, would appreciate or depreciate the value of lots. So far as her

property was concerned, her agent could lay out a street or alley on any part of it, but she did not contemplate an independent settlement on her land, or the establishment of a village within the city. She knew in the general management of this property it must be made to conform to the general plan and improvement of the city. In the process of creating streets, others must be vacated which did not so conform and which became useless. The agent could exercise no judgment if, in laying out and fronting lots, he was tied down to streets already planned. It seems to us clear the power to join in asking for vacation of streets and alleys which, in his judgment, would be of advantage to the property of his principal, was plainly implied in the power. Besides, both the principal and agent so interpreted the written authority, and the principal afterwards formally ratified his act, which is equivalent to precedent authority.

Nor do we think the court's tenth and twelfth findings of fact are correct. The tenth is as follows: "By the vacation of Fort street and Point alley all access to the blockhouse property is entirely destroyed, except through the dwelling house on Penn avenue." How access to the blockhouse property is destroyed when the very deed conveys to the Daughters of the Revolution an entrance way from Penn avenue 20 feet wide to the blockhouse, we do not see. True, at present this entrance is obstructed by an old building, the property of Mrs. Schenley; but, if she does not tear this down, they can, for it is on their land.

As to the twelfth finding-that the blockhouse will be irreparably damaged-that is a mere inference, not warranted by the facts. There will no longer be a street at the one side of the 100 by 90 feet plot, but there will be a clear 20-foot space all around it, with a 20-foot entrance from one of the principal streets of the city. The outside view of the blockhouse will be unobstructed. The replacement of the old and tumbledown buildings on Mrs. Schenley's land by new, improved, and more sightly structures will but add to its conspicuousness as a relic of time long past.

Therefore, while we concur in the decree of the court below, we do so for different reasons than those given by the learned judge who made it. As the facts found by him are wholly contradictory of those developed by the record in Nos. 136 and 137, October term, 1902, on which last we based our decree in those cases, it is proper we should give our reasons for affirming the decree in this case. Plaintiffs have no equity on which to base a decree in their favor. We have considered with care the able argument of the counsel for appellant, tending to demonstrate that equity has jurisdiction, according to the old definition that equity is the correction of that whereof the law, by reason of its universality, is deficient. We neither affirm nor deny

his conclusion. The illustrations, however, put in his argument are not necessarily conclusive of its soundness. Says appellant's counsel: "If a property owner have no recourse to the courts for the purpose of attacking an ordinance passed upon a petition purporting to be signed by a majority in number and interest of abutting owners, then the careful provision in the act of 1895 [P. L. 106] as to a three-fourths majority is absolutely nugatory. Under such condition any street in the city of Pittsburg could be vacated by a simple majority vote of councils upon a petition signed by any two individuals, provided they averred they were the majority of owners in number and interest of the abutting property. There might be a thousand other owners of property abutting on that street, and is it possible they would be utterly helpless and unable to take any legal steps to strike down an ordinance passed on such a petition? Must these property owners stand calmly by, and see their rights swept away from them by the passage of an ordinance under an act of assembly, but in plain violation of its purpose and spirit, and, being without statutory relief, have no relief in equity?" It is easy to put extreme and remotely possible cases as illustrations of what might result if those intrusted with power under our government abuse it. As is said by Chief Justice Black in Sharpless v. Mayor, etc., of Phila., 21 Pa. 147, 59 Am. Dec. 759: "The great powers given to the Legislature are liable to be abused. But this is inseparable from the nature of human institutions. The wisdom of man has never conceived of a government with power to answer its legitimate ends and at the same time incapable of mischief." The power to councils to vacate streets and alleys without appeal from their action may be abused, but they are the power next to the people, and are directly answerable to them for any abuse of power, and under our form of government there is no other cure for such abuse. It may be that our republican form of government is not the best that could be devised; but the people think it is, and appellants will have to rest content with it. The decree is affirmed.

(24 R. I. 594)

WOOD v. PAGE et al. (Supreme Court of Rhode Island. Jan. 26, 1903.)

TENANT BY SUFFERANCE-LEASE FOR A YEAR -HOLDING OVER.

1. Gen. Laws, c. 269, § 6, enacts that the time agreed on in a definite letting shall be the termination thereof for all purposes. A landlord leased premises for one year, and died during the year, and the tenant held over after the expiration of the year. Held, that after the expiration of the year the defendant became a tenant at sufferance, and was not a tenant from year to year.

Action by Alberto E. Wood, as executor of Richard M. Grayson, against William R.

Page and others. Judgment for plaintiff. Defendants' petition for new trial denied. Argued before STINESS, C. J., and DOUGLAS and DUBOIS, JJ.

C. E. Salisbury and J. C. Collins, Jr., for plaintiff. F. P. Owen and Page, Page & Cushing, for defendants.

DUBOIS, J. At the trial of the case before Mr. Justice TILLINGHAST and a jury, it appeared that Richard M. Grayson made a parol lease of the premises described in the declaration to the defendant Page, for one year from the 1st day of November, 1900, and died testate on the 1st day of March following; that his will was duly proved on the 13th day of April of the same year, and letters testamentary were issued to the plaintiff, the executor named therein; that William R. Page occupied the premises under the lease until November 1, 1901, and continued in occupation after the service of the writ, April 11, 1902, although served with a notice on the 1st day of said April to quit and deliver up possession of the premises to the plaintiff on the 5th day of that month, he claiming to be a tenant from year to year by virtue of such occupation, and entitled to a quarter's notice ending November 1, 1902. The presiding justice directed the jury to return a verdict for the plaintiff, upon the ground that when the year expired the term expired, and after that the defendant Page became simply a tenant at sufferance. The petition for a new trial is based upon this ruling, which is claimed to be erroneous.

It has been held that the nature of an estate from year to year is a lease for a year certain, with a growing interest during every year thereafter, springing out of the original contract and parcel of it; consequently, the moment any new year begins, the tenant has a right to hold to the end of that year, but it is not to be considered as a continuous ten

ancy, but as recommencing every year. Gandy v. Jubber, 5 B. & S. 78; Oxley v. James, 13 Mees. & W. 214; Cattley v. Arnold, 1 Johns. & H. 651. Under Gen. Laws, c. 269, § 6, "the time agreed upon in a definite letting shall be the termination thereof for all purposes; and if there be no time of termination agreed upon, it shall be deemed a letting from year to year."

However the case might have been had Mr. Grayson lived beyond November 1, 1901, and had permitted the defendant to continue in occupation beyond that time, such is not the case; and we do not believe it will serve any useful purpose to incumber the estates of persons deceased with tenancies created by implication after death of the lessors, and not arising out of the acts or nonaction of the decedents themselves. As in the case at bar the agreement as to time was definite, the letting terminated at that time, and the defendant became tenant at sufferance thereafter, subject to be divested of the same by

notice to quit, which was duly served upon him as herein before set forth. Hence the ruling of Mr. Justice TILLINGHAST was correct, and must be sustained.

Petition for new trial denied, and case remanded to the Common Pleas Division for further proceedings.

(24 R. I. 599)

McLEAN v. BRYER et al. (Supreme Court of Rhode Island. Jan. 28, 1903.)

OVERDUE NOTES-INTEREST-ESTOPPEL. 1. A note payable on demand, transferred 18 months after date, cannot be considered overdue when transferred, so as to be subject to equities in favor of a maker, interest having been paid monthly to and after the transfer.

2. The maker of a note, who monthly paid 5 per cent. thereon, and who knew when he paid it that it was received and applied as in terest, without protest on his part, is estopped to claim the payments were on the principal.

Assumpsit by James H. McLean against Stafford W. Bryer and others. Plaintiff petitions for a new trial. Granted.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

Huddy & Easton, for plaintiff. George T. Brown, for defendants.

STINESS, C. J. The plaintiff sues as holder of two notes-one for the sum of $200, payable on demand to Thomas B. Cory, dated May 1, 1899: the second for the sum of $400, payable to said Cory on demand, with interest, dated July 24, 1899. These notes were transferred for value, by indorsement, to the plaintiff, 18 and 16 months, respectively, after their issue, and on each the defendant Mrs. Bryer, wife of the maker, signed her name on the back before delivery of the notes to the payee. The defense was that, as the notes were taken by the plaintiff so long after their issue, he took them as notes overdue, and subject to equities between the parties, the special equity relied on being payments made as principal which had been credited as interest, amounting in all to enough to pay the notes with interest at the legal rate. Upon this defense the question was whether there was an agreement on the part of Mr. Bryer to pay interest on said notes at the rate of 5 per cent. per month.

As to the first note, for $200, the defendant Mrs. Bryer was a joint maker, the note having been given prior to the negotiable instruments act (Pub. Laws 1899, c. 674), which went into effect July 1, 1899. Carpenter v. McLaughlin, 12 R. I. 270, 34 Am. Rep. 638; Perkins v. Barstow, 6 R. I. 505. The note was taken by the plaintiff 18 months after its date. This fact, standing alone, would have made the note overdue in this state. Guckian v. Newbold, 23 R. I. 553, 51 Atl. 210, and cases cited.

But, unlike previous

1. See Bills and Notes, vol. 7, Cent. Dig. § 875.

cases, this note was kept alive by continuous payments of monthly interest to the original payee and to this plaintiff after he took the note. Mrs. Bryer testified that she signed the note for her husband's accommodation, who has died since the trial, leaving her the sole defendant; that she expected to pay the principal as she could; that she left the payment of interest to her husband, and that any arrangement he made about the interest was satisfactory to her. Under these circumstances, the note cannot be considered as overdue at the time of transfer. In Bacon v. Harris, 15 R. I. 599, 10 Atl. 647, the defendant was an accommodation maker of a note, which bore indorsements of interest paid to a time beyond the sale of the note to the plaintiff. The court held that the question should have been left to the jury whether Mrs. Harris, the defendant, knew of, assented to, or ratified such payments of interest, thereby implying that, if she did, the note could be regarded as overdue. Upon the first note the verdict for the defendant was wrong, and contrary to the substantial instructions of the court.

'As to the note of $400, dated July 24, 1899 the defendant stands in a different relation. Upon this note she was an indorser. Pub. Laws 1899, c. 674, §§ 71, 72. As indorser she was entitled to notice of dishonor. It appears from the testimony that notice was duly given to the defendant. It further appears that the note was secured by a mortgage on personal property. It was agreed that Mr. Bryer, the maker of the note, was to pay per cent. a month to Cory, and the only question in dispute was whether this was payable as interest or Mr. as principal. Bryer testified that he was to pay 5 per cent. a month as principal; that no interest was agreed upon, but that he intended, after the principal was paid, to use the payee liberally as to interest. He also testified that he knew that the payee understood that he was receiving the 5 per cent. per month as interest; that they had conversations about it when Mr. Bryer was behind in his payments, but that he said nothing, because he "did not want a rupture"; and that Cory gave him The receipts for the payments as interest. defendant's contention shows clearly that the notes were to run more than 20 months, unless he should pay them sooner, and hence that they could not be regarded as overdue when the plaintiff bought them, even if we disregard the fact that they were kept alive by the payment of interest-a fact not disputed, and as to which no contrary claim was made to the plaintiff when Mr. Bryer paid his money after the transfer and the plaintiff gave him receipts for interest. It also shows that the maker of the notes knew that when he paid his money it was received and applied as interest, without protest on his part. He is therefore estopped from setting up afterwards that the payments were made on the principal. Draper v. Horton, 22 R. I.

592, 48 Atl. 945; Pettis v. Ray, 12 R. I. 344. It cannot be assumed that the holder of the note would have allowed it to run so long if he had known that the rate of interest was disputed. Mr. Bryer evidently had doubt about this when he gave his reason for not disputing the interest that he "didn't want a rupture," and was fearful that Cory might foreclose the chattel mortgage. "A person is estopped to set up the truth in contradiction to his conduct, so as to make the truth an instrument of fraud." East Greenwich Inst. v. Kenyon, 20 R. I. 110, 37 Atl. 632. Moreover, Mr. Bryer's claim that a man whose business was letting money at high rates of interest, even though he was a friend, would loan money for whatever the debtor might see fit to pay him, under an agreement that might run 20 months, is too contrary to common business transactions, and too inconsistent with the conduct of the parties in this case, to be credible. Upon the second note, also, the verdict for the defendant was clearly against the evidence.

New trial granted.

(24 R. I. 596)

COLEMAN v. McKEE. (Supreme Court of Rhode Island. Jan. 26, 1903.)

TRUST-MORTGAGE SALE-PURCHASE FOR

MORTGAGOR-PLEADING.

1. Though a mortgagor may redeem at or before the time of sale under the mortgage, she may, instead, make arrangements with one to purchase for her at the sale, so that he, having so purchased, becomes her trustee.

2. A mortgagor may purchase at the mortgage sale, though the mortgagee is a trustee for him.

3. A bill by a mortgagor, to charge the purchaser at the mortgage sale as trustee for her, need not in terms allege that respondent was complainant's agent in the purchase, but it is enough to state that she arranged with his mother to get him to bid it off in his name for her, and that his mother informed persons at the sale that he was bidding for complainant, in consequence of which they ceased bidding, and he got the property for less than the mortgage and its value, and that he knew of the doing and representations of his mother in the matter.

Bill in equity by Elizabeth Coleman against William H. McKee. Respondent demurs to the bill. Demurrer overruled.

Argued before STINESS, C. J., and TIL LINGHAST and ROGERS, JJ.

C. J. Farnsworth and J. F. Murphy, for complainant. Thomas Riley, Jr., and Hugh J. Carroll, for respondent.

TILLINGHAST, J. The first ground of demurrer to this bill is untenable. It is quite immaterial whether the complainant could have redeemed the mortgaged premises at or before the time of the sale thereof under the mortgage by paying the note secured thereby and the expenses incurred in connection with the foreclosure proceedings. It was wholly

optional with her as to whether she would thus prevent a sale under the mortgage, and the mere fact that she did not see fit to do so in no way prejudiced her rights as against the respondent, whom she seeks to charge as trustee for her in the purchase of the estate in question at the mortgagee's sale thereof. It is true the complainant might have prevented the sale under the mortgage in the manner suggested by the demurrer; but, instead of doing so, she saw fit to rely upon the respondent to purchase said estate for her at the foreclosure sale, which she had the undoubted right to do. And we fail to see that it lies in his mouth to question her conduct in this regard.

As to the second ground of demurrer, we are of the opinion that it is also untenable. The law is well settled that a mortgagor may bid for and purchase the mortgaged property at the mortgagee's sale thereof, the same as any other person. Jones on Mortgages (4th Ed.) vol. 2, § 1887; Pingree on Mortgages, vol. 2, § 1391. Indeed, under our statute (Gen. Laws R. I. c. 207, § 16), a mortgagee, by giving notice of his intention so to do, may bid for and purchase the mortgaged property in the same manner as any other person may do, and this even though the mortgagee is in law a trustee for the mortgagor. And, having thus purchased, he may by deed convey the purchased property directly to himself. Woonsocket Institution for Savings v. Worsted Co., 13 R. I. 255. In case the mortgagee does avail himself of his right to purchase, however, he will, of course, be held to the strictest good faith and the utmost diligence in the exercise of this right for the protection of the rights of the mortgagor, and his failure in either particular will give occasion to allow the mortgagor to redeem. Montague v. Dawes, 14 Allen, 369; Jones on Mortgages, supra, § 1883.

The third ground of demurrer is also untenable. It is not necessary for the complainant to allege in terms in her bill that the respondent was her agent in the purchase of said estate. All that is required in order to state a case against him is that it be clearly made to appear that he was authorized to act, and did act, for and in behalf of the complainant in making the purchase in question. And we think this sufficiently appears by the fifth clause of the bill, which sets out in substance that the complainant attended the auction sale and was anxious to purchase the mortgaged estate, or have the same purchased for her-which was the same thing-and that an arrangement or understanding was entered into between the complainant and one Mary Ann McKee, the mother of the respondent, whereby she was either to bid off said property for the complainant, or get her son, the respondent, to bid it off in his name for and in behalf of the complainant, and to advance whatever sum was necessary to secure the same at the auction sale.