페이지 이미지

by statute. Section 10 of the act of 1891 land freed from the servitude of the public expressly gives the right of appeal to abut way. There is no constitutional right to ting owners from ordinances "opening, widen damages, even on the ground of injury, uning, straightening, extending, grading, pav der the present Constitution.” As under the ing, macadamizing, or otherwise improving law thus established the abutting owner any street or alley." Not a word is said could not be damaged in his property by the about an appeal from ordinances vacating vacation of a street or highway, he had no streets. It is argued by appellee's counsel tangible interest which gave him a right of that the words "otherwise improving" would complaint. A sentimental interest or artistic embrace the vacating of a street. They do taste might be shocked by the closing up of not convey that meaning to our minds, and an ancient street or highway, but this afwere doubtless inserted to meet the ever fected no property right, and the complainant growing new methods of paving, some of was not given the rights of an appellant. those then well known being enumerated. The Legislature, by the act of 1891, adopted If the act were to be passed to-day, it is no new rule when it did not confer the right probable asphalting would have been named. of appeal for vacation of a street on the The word "vacating" could as easily have abutting owner. It merely accepted the law heen inserted as the words "opening, widen as it stood. He was not damaged, and thereing,” etc., altogether eight words; but it was fore had nothing to appeal from. not. "Vacating" is not suggestive of im We think tbe court had no jurisdiction to provement, but of abandoning, abolishing, or entertain the petition, and, even if it had on destroying. We do not think the words "oth the record, the decree was erroneous. Thereerwise improving" within any reasonable in fore the decree of the court below in Nos. terpretation give the right of appeal for va 136 and 137, October term, 1902, are both cating. The act contains 12 sections, and is reversed, and the petitions to the court of very comprehensive. It expressly gives the common pleas to quash ordinances vacating right of appeal only in the tenth section, and, Fort street and Point Alley are both disas we think, intentionally omits giving it missed. there from ordinances vacating streets. The Legislature was doubtless aware of

(204 Pa. 584) the law as it then stood with reference to this particular exercise of municipal power.


TION OF ALLEGHENY COUNTY v. The right of appeal on assessment of dam

SCHENLEY et al. ages for private property taken for public use by municipal and other corporations, and

(Supreme Court of Pennsylvania. Jan. 5, the right to a trial by jury to either party

1903.) according to the course of the common law,


FICATION OF ACTS. are guarantied by the eighth section of the

1. An owner of unimproved lands situated in a sixteenth article of the Constitution. But | city authorized her attorney in fact to lay out whether, in any given case, private property lots in such form and fronting on such streets, has been taken, and the use to which it is

lanes, alleys or areas as in his judgment might

be advisable. Held, that such attorney could pesought to appropriate it is a public one, are tition the common council to vacate streets, and necessarily judicial questions to be deter if his act was afterwards formally ratified by mined by the courts; and this is the declared his principal, there was no ground to attack the

validity of the ordinance passed in response to law in all the states and in the United States

such petition. courts. The facts here do not, as we have more than once decided, bring the case un

Appeal from Court of Common Pleas, Alder the section of the Constitution referred

legheny County. to.

Bill by the Daughters of the American In Paul v. Carver, 24 Pa. 207, 64 Am.

Revolution of Allegheny County against Mary Dec. 649, this court decided that the Legis- E. Schenley and others. From a decree dislature had the power to vacate a public street

missing the appeal, the plaintiff appeals. AP

firmed. without the consent of the abutting owners; that such an act was in no sense of the word

Argued before MITCHELL, DEAN, FELL, a taking of private property for public use,

BROWN, MESTREZAT, and POTTER, JJ. but was nothing more than a surrender of John Reed Scott, J. W. White, and S. W. the public right of way to the owners of the Childs, for appellant. William W. Smith and soil. In McGee's Appeal, 114 Pa. 470, 8 Atl. T. D. Carnahan, City Sol., for appellees. 237, it was held that the power of the Legislature to vacate streets and to invest munic DEAN, J. This bill was filed, praying the ipal corporations with the same power was court to quash the ordinances in Nos. 136 not restricted by the Constitution. The same and 137, October term, 1902, which the same was held in Wetherill v. Penna. R. R. Co., court was petitioned to quash in proceedings 195 Pa. 156, 45 Atl. 658. In this last case at law. The appeals in those cases and from Justice Mitchell, in rendering the opinion of this decree in equity were all argued togeththe court, says: “But vacating a street takes er before us. We reversed the decree of the no property from any one. It merely re court below in Nos. 136 and 137, quashing stores to abutting owners their portion of the the ordinances of councils vacating Fort

street and Point alley in opinion handed property was concerned, her agent could lay down herewith. 54 Atl. 366. Anticipating out a street or alley on any part of it, but such possible or probable event, the Daugh she did not contemplate an independent setters of the American Revolution filed this tlement on her land, or the establishment of bill, substantially averring the same facts as a village within the city. She knew in the in the petitions to quash, and praying for general management of this property it must the same decree. The answer denied the be made to conform to the general plan and averments of the bill. The court below, after improvement of the city. In the process of hearing, dismissed the bill for the reason that creating streets, others must be vacated plaintiffs had already invoked the statutory which did not so conform and which became remedy, and therefore could have no relief in useless. The agent could exercise no judgequity. This decree is directly in appellees' ment if, in laying out and fronting lots, he favor, but it can do them no harm except was tied down to streets already planned. in so far as the findings of fact by the It seems to us clear the power to join in learned judge of the court below may be in asking for vacation of streets and alleys consistent with it. In the ninth finding of which, in his judgment, would be of advanfact the court says: "At the time of the sign tage to the property of his principal, was ing and presentation of the petition to coun plainly implied in the power. Besides, both cils and the passage of the ordinances, Mary the principal and agent so interpreted the E. Schenley had no knowledge of the trans written authority, and the principal afteraction. Some time after the passage of the wards formally ratified his act, which is ordinances she first heard of it, and was equivalent to precedent authority. satisfied with what John W. Herron had Nor do we think the court's tenth and done, and afterwards ratified his act." This twelfth findings of fact are correct. The finding is too narrow. It does not bring out tenth is as follows: "By the vacation of Fort the scope and full siguificance of the fact. street and Point alley all access to the blockMrs. Schenley was a resident of London, house property is entirely destroyed, except England. To manage, control, and super through the dwelling house on Penn avenue.” vise her extensive and large property hold How access to the blockhouse property is ings in Pittsburg, from the very nature of destroyed when the very deed conveys to the the case, she could not minutely know all the Daughters of the Revolution an entrance specific acts necessary to or incident to the

way from Penu avenue 20 feet wide to the proper management of her estate. By her blockhouse, we do not see. True, at present letter of attorney of July 23, 1900, she con this entrance is obstructed by an old buildferred on him very large powers over her ing, the property of Mrs. Schenley; but, if property. It does not specifically authorize she does not tear this down, they can, for him to sign for her petitions to councils for it is on their land. vacation of streets and alleys on which her As to the twelfth finding-that the blockland abutted, but such power is plainly im house will be irreparably damaged-that is a plied in the fifth clause of the letter, thus: mere inference, not warranted by the facts. "The said John W. Herron is also hereby au There will no longer be a street at the one thorized and empowered to lay out lots in such side of the 100 by 90 feet plot, but there will form and fronting on such streets, lanes, and be a clear 20-foot space all around it, with alleys or areas as, in his judgment, may be a 20-foot entrance from one of the principal advisable." She owned many large plots of streets of the city. The outside view of the land, unimproved, and which, when streets blockhouse will be unobstructed. The reand alleys were opened, would cut up into placement of the old and tumbledown buildmany city lots suitable for occupation and ings on Mrs. Schenley's land by new, imbuilding. This both the principal and attor- prored, and more sightly structures will but ney knew. She desired to utilize and realize add to its conspicuousness as a relic of time on this property. It was practically useless long past. without streets and alleys; so she gave her Therefore, while we concur in the decree attorney full power to lay out lots in such of the court below, we do so for different reaform and fronting on such streets, lanes, and sons than those given by the learned judge alleys as in his judgment might be advisable. who made it. As the facts found by him are Take the plot before us, 942 acres, the whole wholly contradictory of those developed by of which was hers, and over which she had the record in Nos. 136 and 137, October term, full control. What the buying or leasing 1902, on which last we based our decree in public would demand in means of access to those cases, it is proper we should give our the lots carved out of this large tract of land reasons for affirming the decree in this case. was wholly problematical when the power Plaintiffs have no equity on which to base a was executed. It might desire the lots to decree in their favor. We have considered conform to older streets extended through with care the able argument of the counsel this tract in accordance with general plans, for appellant, tending to demonstrate that and the vacation of streets and alleys al equity has jurisdiction, according to the old ready laid out. The demands, and even definition that equity is the correction of that whims, of the public, would appreciate or de whereof the law, by reason of its universalpreciate the value of lots. So far as her ity, is deficient. We neither affirm nor deny

his conclusion. The illustrations, however, Page and others. Judgment for plaintiff. put in his argument are not necessarily con Defendants' petition for new trial denied. Clusive of its soundness. Says appellant's Argued before STINESS, C. J., and DOUGcounsel: “If a property owner have no re LAS and DUBOIS, JJ. course to the courts for the purpose of at

C. E. Salisbury and J. C. Collins, Jr., for tacking an ordinance passed upon a petition purporting to be signed by a majority in plaintiff. F. P. Owen and Page, Page & number and interest of abutting owners, then

Cushing, for defendants. the careful provision in the act of 1895 (P. L. 106) as to a three-fourths majority is abso DUBOIS, J. At the trial of the case belutely nugatory. Under such condition any fore Mr. Justice TILLINGHAST and a jury, street in the city of Pittsburg could be va it appeared that Richard M. Grayson made a cated by a simple majority vote of councils | parol lease of the premises described in the upon a petition signed by any two individ declaration to the defendant Page, for one uals, provided they averred they were the year from the 1st day of November, 1900, majority of owners in number and interest and died testate on the 1st day of March folof the abutting property. There might be a lowing; that his will was duly proved on the thousand other owners of property abutting 13th day of April of the same year, and leton that street, and is it possible they would ters testamentary were issued to the plaintiff, be utterly helpless and unable to take any the executor named therein; that William R. legal steps to strike down an ordinance pass Page occupied the premises under the lease ed on such a petition ? Must these property until November 1, 1901, and continued in ocowners stand calmly by, and see their rights cupation after the service of the writ, April swept away from them by the passage of an 11, 1902, although served with a notice on ordinance under an act of assembly, but in the 1st day of said April to quit and deliver plain violation of its purpose and spirit, and, up possession of the premises to the plaintiff being without statutory relief, have no relief on the 5th day of that month, he claiming to in equity?" It is easy to put extreme and be a tenant from year to year by virtue of remotely possible cases as illustrations of such occupation, and entitled to a quarter's what might result if those intrusted with notice ending November 1, 1902. The prepower under our government abuse it. As is siding justice directed the jury to return a said by Chief Justice Black in Sharpless v. verdict for the plaintiff, upon the ground that Mayor, etc., of Phila., 21 Pa. 147, 59 Am. when the year expired the term expired, and Dec. 759: “The great powers given to the after that the defendant Page became simply Legislature are liable to be abused. But this a tenant at sufferance. The petition for a is inseparable from the nature of human in new trial is based upon this ruling, which is stitutions. The wisdom of man has never claimed to be erroneous. conceived of a government with power to an It has been held that the nature of an esswer its legitimate ends and at the same time

tate from year to year is a lease for a year incapable of mischief." The power to coun certain, with a growing interest during every cils to vacate streets and alleys without ap year thereafter, springing out of the original peal from their action may be abused, but contract and parcel of it; consequently, the they are the power next to the people, and moment any new year begins, the tenant has are directly answerable to them for any a right to lold to the end of that year, but abuse of power, and under our form of gov it is not to be considered as a continuous tenernment there is no other cure for such

ancy, but

recommencing every year. abuse. It may be that our republican form Gandy v. Jubber, 5 B. & S. 78; Oxley V. of government is not the best that could be

James, 13 Mees. & W. 214; Cattley V. Ardevised; but the people think it is, and ap nold, 1 Johns. & H. 651. Under Gen. Laws, pellants will have to rest content with it. c. 269, § 6, "the time agreed upon in a defi. The decree is affirmed.

nite letting shall be the termination thereof for all purposes; and if there be no time of

termination agreed upon, it shall be deemed (24 R. I, 594)

a letting from year to year.” WOOD V. PAGE et al.

However the case might have been bad (Supreme Court of Rhode Island. Jan. 26,

Mr. Grayson lived beyond November 1, 1901, 1903.)

and had permitted the defendant to continue TENANT BY SUFFERANCE-LEASE FOR A YEAR

in occupation beyond that time, such is not -HOLDING OVER. 1. Gen. Laws, c. 269, § 6, enacts that the

the case; and we do not believe it will serve time agreed on in a definite letting shall be the

any useful purpose to incumber the estates termination thereof for all purposes. A land of persons deceased with tenancies created lord leased premises for one year, and died dur by implication after death of the lessors, and ing the year, and the tenant held over after the expiration of the year. Held, that after

not arising out of the acts or nonaction of the the expiration of the year the defendant be decedents themselves. As in the case at bar came a tenant at sufferance, and was not a the agreement as to time was definite, the tenant from year to year.

letting terminated at that time, and the deAction by Alberto E. Wood, as executor of fendant became tenant at sufferance there Richard M. Grayson, against William R. after, subject to be divested of the same by



notice to quit, which was duly served upon cases, this note was kept alive by continuous him as hereinbefore set forth. Hence the payments of monthly interest to the original ruling of Mr. Justice TILLINGHAST was payee and to this plaintiff after he took the correct, and must be sustained.

note. Mrs. Bryer testified that she signed Petition for new trial denied, and case re the note for her husband's accommodation, manded to the Common Pleas Division for who has died since the trial, leaving her the further proceedings.

sole defendant; that she expected to pay the principal as she could; that she left the pay

ment of interest to her husband, and that any (24 R. I. 599)

arrangement he made about the interest was MCLEAN V. BRYER et al.

satisfactory to her. Under these circum(Supreme Court of Rhode Island. Jan. 28,

stances, the note cannot be considered as 1903.)

overdue at the time of transfer. In Bacon

v. Harris, 15 R. I. 599, 10 Atl. 647, the deOVERDUE NOTES—INTEREST-ESTOPPEL.

fendant was an accommodation maker of a 1. A note payable on demand, transferred 18 months after date, cannot be considered over

note, which bore indorsements of interest due when transferred, so as to be subject to equi paid to a time beyond the sale of the note to ties in favor of a maker, interest having been the plaintiff. The court held that the quespaid monthly to and after the transfer,

tion should have been left to the jury whether 2. The maker of a note, who monthly paid 5 per cent. thereon, and who knew when he

Mrs. Harris, the defendant, knew of, assented paid it that it was received and applied as id to, or ratified such payments of interest, terest, without protest on his part, is estoppea thereby implying that, if she did, the note to claim the payments were on the principal,

could be regarded as overdue. Upon the first Assumpsit by James H. McLean against note the verdict for the defendant was Stafford W. Bryer and others. Plaintiff peti wrong, and contrary to the substantial intions for a new trial. Granted.

structions of the court. Argued before STINESS, C. J., and TIL As to the note of $400, dated July 24, 1899 LINGHAST and ROGERS, JJ.

the defendant stands in a different relation. Huddy & Easton, for plaintiff. George T.

Upon this note she was an indorser. Pub. Brown, for defendants.

Laws 1899, c. 674, 88 71, 72. As indorser she

was entitled to notice of dishonor. It appears STINESS, C. J. The plaintiff sues

from the testimony that notice was duly holder of two notes-one for the sum of $200,

given to the defendant. It further appears

that the note was secured by a mortgage on payable on demand to Thomas B. Cory, dated May 1, 1899: the second for the sum of $400,

personal property. It was agreed that Mr.

Bryer, the maker of the note, was to pay payable to said Cory on demand, with interest, dated July 24, 1899. These notes were

5 per cent. a month to Cory, and the only transferred for value, by indorsement, to the

question in dispute was whether this was

payable as interest or as principal. Mr. plaintiff, 18 and 16 months, respectively,

Bryer testified that he was to pay 5 per cent. after their issue, and on each the defendant Mrs. Bryer, wife of the maker, signed her

a month as principal; that no interest was name on the back before delivery of the

agreed upon, but that he intended, after the notes to the payee. The defense was that,

principal was paid, to use the payee liberally

as to interest. He also testified that he knew as the notes were taken by the plaintiff so lorg after their issue, he took them as notes

that the payee understood that he was reoverdue, and subject to equities between the

ceiving the 5 per cent. per month as interest;

that they had conversations about it when parties, the special equity relied on being

Mr. Bryer was behind in his payments, but payments made as principal wbich had been credited as interest, amounting in all to

that he said nothing, because he “did not enough to pay the notes with interest at the

want a rupture"; and that Cory gave him legal rate. Upon this defense the question

receipts for the payments as interest. The

defendant's contention shows clearly that the was whether there was an agreement on the part of Mr. Bryer to pay interest on said

notes were to run more than 20 months, unnotes at the rate of 5 per cent. per month.

less he should pay them sooner, and hence As to the first note, for $200, the defendant

that they could not be regarded as overdue Mrs. Bryer was a joint maker, the note bav

when the plaintiff bought them, even if we ing been given prior to the negotiable instru

disregard the fact that they were kept alive ments act (Pub. Laws 1899, c. 674), which

by the payment of interest-a fact not disputwent into effect July 1, 1899. Carpenter v.

ed, and as to which no contrary claim was MeLaughlin, 12 R. I. 270, 34 Am. Rep. 638;

made to the plaintiff when Mr. Bryer paid Perkins v. Barstow, 6 R. I. 505. The note

bis money after the transfer and the plainwas taken by the plaintiff 18 months after

tiff gave him receipts for interest. It also its date.

shows that the maker of the notes knew This fact, standing alone, would have made the note overdue in this state.

that when he paid his money it was received Guckian v. Newbold, 23 R. I. 553, 51 Atl.

and applied as interest, without protest on his 210, and cases cited. But, imlike previous part. He is therefore estopped from setting

up afterwards that the payments were made 1. See Bills and Notes, vol. 7, Cent. Dig. $875. on the principal. Draper v. Horton, 22 R. I.

592, 48 Atl. 945; Pettis v. Ray, 12 R. I. 344. optional with her as to whether she would It cannot be assumed that the holder of the thus prevent a sale under the mortgage, and note would have allowed it to run so long the mere fact that she did not see fit to do so it be had known that the rate of interest in no way prejudiced her rights as against was disputed. Mr. Bryer evidently had doubt the respondent, whom she seeks to charge as about this when he gave his reason for not trustee for her in the purchase of the estate disputing the interest that he "didn't want a in question at the mortgagee's sale thereof. rupture," and was fearful that Cory might It is true the complainant might have preforeclose the chattel mortgage. “A person is vented the sale under the mortgage in the estopped to set up the truth in contradiction manner suggested by the demurrer; but, into his conduct, so as to make the truth an in stead of doing so, she saw fit to rely upon strument of fraud.” East Greenwich Inst. v. the respondent to purchase said estate for Kenyon, 20 R. I. 110, 37 Atl. 632. Moreover, her at the foreclosure sale, which she had Mr. Bryer's claim that a man whose business the undoubted right to do. And we fail to was letting money at high rates of interest, see that it lies in his mouth to question her even though he was a friend, would loan conduct in this regard. money for whatever the debtor might see As to the second ground of demurrer, we fit to pay him, under an agreement that are of the opinion that it is also untenable. might run 20 months, is too contrary to com The law is well settled that a mortgagor mon business transactions, and too incon may bid for and purchase the mortgaged sistent with the conduct of the parties in this property at the mortgagee's sale thereof, the case, to be credible. Upon the second note, same as any other person. Jones on Mortalso, the verdict for the defendant was clear gages (4th Ed.) vol. 2, § 1887; Pingree on ly against the evidence.

Mortgages, vol. 2, § 1391. Indeed, under our New trial granted.

statute (Gen. Laws R. 1. C. 207, 8 16), a mortgagee, by giving notice of his intention

so to do, may bid for and purchase the mort(24 R. I. 596)

gaged property in the same manner as any COLEMAN v. MCKEE.

other person may do, and this even though (Supreme Court of Rhode Island. Jan. 26,

the mortgagee is in law a trustee for the 1903.)

mortgagor. And, having thus purchased, he

may by deed convey the purchased property TRUST-MORTGAGE SALE-PURCHASE FOR MORTGAGOR-PLEADING.

directly to himself. Woonsocket Institution

for Savings v. Worsted Co., 13 R. I. 255. 1. Though a mortgagor may redeem at or before the time of sale under the mortgage, she

In case the mortgagee does avail himself of may, instead, make arrangements with one to his right to purchase, however, he will, of purchase for her at the sale, so that he, hav course, be held to the strictest good faith and ing so purchased, becomes her trustee. 2. A mortgagor may purchase at the mort

the utmost diligence in the exercise of this gage sale, though the mortgagee is a trustee right for the protection of the rights of the for him.

mortgagor, and his failure in either particu3. A bill by a mortgagor, to charge the pur

lar will give occasion to allow the mortgagor chaser at the mortgage sale as trustee for her, need not in terms allege that respondent was

to redeem. Montague v. Dawes, 14 Allen, complainaut's agent in the purchase, but it is 369; Jones on Mortgages, supra, § 1883. enough to state that she arranged with his

The third ground of demurrer is also unmother to get him to bid it off in his name for

tenable. It is not necessary for the comher, and that his mother informed persons at the sale that he was bidding for complainant,

plainant to allege in terms in her bill that in consequence of which they ceased bidding, the respondent was her agent in the purchase and he got the property for less than the mort

of said estate. All that is required in order gage and its value, and that he knew of the

to state a doing and representations of his mother in the

case against him is that it be matter.

clearly made to appear that he was author

ized to act, and did act, for and in behalf Bill in equity by Elizabeth Coleman against William H. McKee. Respondent demurs to

of the complainant in making the purchase

in question. And we think this sufficiently the bill. Demurrer overruled. Argued before ȘTINESS, C. J., and TIL

appears by the fifth clause of the bill, which LINGHAST and ROGERS, JJ.

sets out in substance that the complainant

attended the auction sale and was anxious C. J. Farnsworth and J. F. Murphy, for to purchase the mortgaged estate, or hare complainant. Thomas Riley, Jr., and Hugh the same purchased for her--which was the J. Carroll, for respondent.

same thing--and that an arrangement or

understanding was entered into between the TILLINGHAST, J. The first ground of complainant and one Mary Ann McKee, the demurrer to this bill is untenable. It is quite mother of the respondent, whereby she was immaterial whether the complainant could either to bid off said property for the comhave redeemed the mortgaged premises at or plainant, or get her son, the respondent, to before the time of the sale thereof under the bid it off in his name for and in behalf of mortgage by paying the note secured thereby the complainant, and to advance whatever and the expenses incurred in connection with sum was necessary to secure the same at the the foreclosure proceedings. It was wholly auction sale.

« 이전계속 »