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present claimant, The contention is that, tice to all claiming under bim, including granting the previous existence of the right, the respondent. Therefore I report a right it expired because it was omitted from a deed of way appurtenant to the complainant's lot by which the sheriff transferred the dominant was created with due regularity, and notice tenement. I am unable to see how this omis- thereof placed on record for all purchasers sion can affect the rights of the parties. of the servient tenement. This easement There is nothing amounting to a release, for was never released. It was never overrid. the owner of the servient tenement was not dence by any prescriptive right. Nor did it privy to these transactions, and was fully in- expire merely because it was not mentioned formed of the existence of the easement by in one of the deeds through which the comthe record in his own line of title. More- plainant obtains his title of the respondorer, the presumption is that, where notice ent's title, it is enough that the record show is given to the servient holder either by ap- full notice to him that he bought subject parent use of the way or upon the record, all to the easement. rights created to assist in the enjoyment of “After the testimony had closed, and durthe dominant land become appurtenant there- ing the argument, the respondent contended to, and pass therewith, even though not men- for the first time that the bill should be distioned in the deed. This rule is established missed for want of jurisdiction, although this by numerous authorities, among which may question had not been set up by demurrer be mentioned the following cases: Swartz or suggested in the answer. Under the dev. Swartz, 4 Pa. 353, 45 Am. Dec. 697; Rhea cisions of the Supreme Court it should not v. Forsyth, 37 Pa. 503, 508, 78 Am. Dec. 441; now be considered. The following language, Ott v. Kreiter, 110 Pa. 370, 1 Atl. 724; Held taken from the opinion in Shillito v. Shillito, v. McBride, 39 Wkly. Notes Cas. 284; Wright 160 Pa. 167, 28 Atl. 637, is in point: 'MoreV. Chestnut Hill Iron Ore Co., 45 Pa. 475; over, the jurisdiction of the court was not Erb v. Brown, 69 Pa. 216. Especially is it denied or questioned by demurrer, plea, or true that an omission from a sheriff's deed

answer. The first intimation of a want of is not fatal. A sheriff's sale operates to jurisdiction came after the most of the testransfer the mortgagor's title such as it is, timony had been taken by a master appoint. not merely such as it is described to be. In ed on the agreement of the parties, and Kieffer v. Imhoff, 26 Pa. 438, it is said: “The after the most of the expenses of the litigaomission to specify the privilege particularly tion had been incurred. We have, therefore, does not change the qualities annexed to the a case to which the language of this court in estates, nor do the other trifling inaccuracies Adams' Appeal, 113 Pa. 449, 6 Atl. 100, is produce that effect. Precision of description | applicable, even if it be conceded that there is never expected in a sheriff's deed, and it is is room for doubt respecting jurisdiction. In always construed with great liberality.' delivering the opinion of the court in the See, also, Buckholder v. Sigler, 7 Watts &

case cited, the present Chief Justice Greek S. 154; Wright v. Chestnut Hill Iron Ore Co., said: "While it is true that manifest want 45 Pa. 475; Middleton's Ex'rs v. Middleton, of jurisdiction may be taken advantage of 106 Pa. 252; Overdeer's Adm'r v. Updegraff, at any stage of the cause, the court will 69 Pa. 110; Zeil v. Universalist Society, 119 not permit an objection to its jurisdiction Pa. 390, 13 Atl. 447, 4 Am. St. Rep. 654; and to prevail in doubtful cases after the parties Geible v. Smith, 146 Pa. 276, 23 Atl. 437, 28 have voluntarily proceeded to a hearing on Am. St. Rep. 796. I am of opinion, accord- the merits, but will administer suitable reingly, that the said sheriff's deed effected a lief."! See, also, Evans v. Goodwin, 132 Pa. transfer of an appurtenant easement, even 136, 19 Atl. 49; Searight v. Carlisle Deposit without express mention of it.

Bank, 162 Pa. 504, 29 Atl. 783; Drake v. "It is true that the mortgage to satisfy Lacoe, 157 Pa. 17, 27 Atl. 538; Edgett v. which this sheriff's sale took place was prior Douglass, 144 Pa. 95, 22 Atl. 868; and Marin time to the creation of the easement. It garge & Green Co. v. Ziegler, 9 Pa. Super. is settled, however, by Cannon . Boyd, Ct. 438.

passt, where the teachers were very similar to Ct

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, even if the objection to the Juris

those in the present case, that the easement diction of equity be considered at this stage passes notwithstanding the priority of the of the proceeding, it is not at all clear that mortgage.

the plaintiff is not entitled to equitable re"Both parties have inquired at some length lief. It is true that in 'actions respecting into the nature of the respondent's title to real property, where the plaintiff's right has the soil of the alley. This question it is not been established at law, or is not clear, unnecessary to consider. The most perfect he is generally not entitled to remedy by intitle to the soil would not relieve the re. junction; but where in a proceeding in equi. spondent from his duty to respect the plain- ty the plaintiff's title is clear, and all the tiff's right of way thereover. The important evidence relating to it is of such a characfact in this case in the line of title is that ter that a judge in a trial at law upon the the existence of the servitude was on record same evidence would not be at liberty to subin Paxon's deed to Grau. Binding Grau, it mit the question of the plaintiff's title to also bound the subsequent purchaser at the the jury, equity will grant relief although sheriff's sale, and constituted a sufficient no- there has been no adjudication of the title

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at common law. Edgett v. Douglass, 144 ors and their assigns might evade the most Pa. 95, 22 Atl. 868; Manbeck v. Jones, 190 solemn obligations, and fraudulently rid Pa, 171, 42 Atl. 536. In Manbeck v. Jones, themselves of troublesome servitudes for a bill in equity was filed for an injunction which they have received a large price. Such to restrain the closing up of an alleged road a construction of the laws relating to the across defendant's land. The answer denied collection of taxes does not appear to be nec. the existence of the road. Although the essary in order to secure the payment of the question of the existence of the right of way tax, and would produce a manifest injustice bad not been tried in an action at law, the without any important advantage to the state court below heard testimony on both sides, or the city. This, then, is precisely the case and decided that the defendant took his con- in which the argument from inconvenience is veyances subject to the right of way. Judge decisive of the construction. The words of Bechtel, delivering the opinion of the court the various acts of assembly relating to the below, cites authorities to the effect that the levying and collection of taxes have no such right should be clear to warrant a decree necessary meaning or effect as that which and injunction to compel the keeping open the argument for the plaintiff attributes to of a way, and, if the right be doubtful, a them, and, this being so, the great inconchancellor will pause until it be established venience which would result from the conby law. He then says: 'Of course, the right struction which he contends for supplies a should be clear, and no chancellor would powerful reason for believing that such a interfere in a doubtful case until it is estab- construction was never contemplated by the lisbed; but when the right is clearly shown, Legislature, and fully warrants us in rejectas in this case, a suit at law is unnecessary, ing it. The decisions and the general curand really a useless expense.

We rent of legislation upon this subject tend think, if the testimony before us was submit- greatly to‘strengthen this conclusion. That a ted to a jury, there could be but one finding, ground rent was not divested by a judicial to wit, in favor of the existence of the road. sale for taxes assessed upon the land was Vor could any other be conscientiously sus- settled the courts before the passage of tained.' The court entered a decree ordering the act which expressly so enacts. Irwin v. that the road be opened, and restraining any Bank of United States, 1 Pa. 349; Salter v. further obstruction of plaintiff's right of way. Reed, 15 Pa. 260. The legislation which proThe decree was affirmed by the Supreme. tects mortgages which are prior to tax claims Court, which held: 'For reasons given by is also a clear indication of the policy of the the learned trial judge in his opinion, we are state upon the subject. The right which is satisfied he was right in concluding that the acquired by the covenantee and his assigns plaintiff was entitled to equitable relief, and in a building restriction, such as that which in adequately providing therefor by the terms exists in that of the line of his title, is a right of the decree from which this appeal was not in the land, but appurtenant to the land. taken.'

Like a ground rent, it is an interest not in "For the reasons given, I report in favor of the land itself, but incident to the ownership the complainant, and respectfully recommend of another, and arising out of a covenant that a decree be entered in accordance with fastened upon it by a former owner, The the prayer of the bill in the form herewith same reasoning and the same policy which submitted and attached."

protects a ground rent from being divested On exception to his report, the referee fur. by the sale of the land for taxes, ought, therether found as follows:

fore, to protect the right which a covenantee "In reply specially to the complainant's and his assigns have in a building restrictwenty-fourth exception, in which the error

tion.'" assigned is my finding as a matter of law Argued before MITCHELL, DEAN, FELL that the servitude imposed upon respondent's MESTREZAT, and POTTER, JJ. land was not discharged by the sheriff's sale

William S. Divine and Arthur B. Huey, for for taxes of 1887, I refer to the cases of Ir

appellant. A. I. Phillips, Dimner Beeber, win v. Bank of United States, 1 Pa. 349, and

and J. Levering Jones, for appellee. Lesley v. Morris, 9 Phila. 110, not cited in my original report. In the latter of these PER CURIAM. This decree is affirmed on cases it is held that a building restriction up- the findings of law by the learned referee, on real estate is not removed by a subse- costs to be paid by appellant. quent judicial sale for taxes. On page 111, 9 Pbila., Judge Thayer, in delivering the opinion of the court, says: 'It would be a very

(205 Pa, 444) dangerous doctrine to establish that, a cove- MURPHY . PRUDENTIAL INS. CO. OF nantee who is not a party to the proceedings

AMERICA. for the collection of the taxes, and who had (Supreme Court of Pennsylvania. May 4, no notice of their existence, should, without

1903.) any fault of his, be deprived of a valuable LIFE INSURANCE ACTION ON POLICY EVIright-a right which is as much property as

DENCE-MISSTATEMENTS IN APPLICA

TION-CROSS-EXAMINATION. the land itself. Such a doctrine would fur.

1. Where the defense to an action on a life pish a very easy method by which covenant- policy was false responses to questions of medical examiner, the physician called for the made or to be made to the company's medplaintiff cannot be cross-examined as to wheth

ical examiner, are or shall be complete and er the treatment of the disease of which the insured died was a proper treatment.

true, and that they, together with this decla2. A physician, called as a witness for plaintiff ration, shall form the basis and become a in an action on a life policy, cannot be asked part of the contract of insurance hereby apwhether, if he had been told that shortly before the application insured had consulted another plied for. And it is agreed that if any of the physician for a cough and night sweats, that said answers be incorrect in whole or in fact would have had any effect with regard to part, then the policy which may be granted passing applicant as a first-class risk. 3. Where, in an action on a life policy, the

in pursuance hereof shall be null and void, defense is false answers made by the insured and all payments made thereon shall be forin his application, defendant can show that feited to the company. And it is further deceased had consumption within a year after

agreed that the policy herein applied for the date of the policy and died therefrom, after showing that insured was treated for consump

shall be accepted subject to the conditions tion within the year preceding the policy. and agreements therein contained, and said

4. Where, in an action on a life policy, the policy shall not take effect until the same evidence for defendant shows that insured had

shall be issued and delivered by the said consumption during the year before the issue of the policy and died of that disease there

company, and the first premium paid thereafter, and insured stated in his application that on in full, while my health is in the same he never had any spitting of blood or serious condition as described in this application." illness, the trial judge should instruct the jury that the statements alleged by the defendant to

In the application, under the questions to be false were material to the risk, and if they be answered by the insured, and which were were false would avoid the policy.

answered by him before the medical examin

er of the company, is the following: I Appeal from Court of Cominon Pleas, Phil

hereby warrant that the answers to these adelphia County.

questions are true, and agree that they sball Action by Mary E. Murphy against the

form a part of the contract of insurance apPrudential Insurance Company of America.

plied for.” The case was submitted to the Judgment for plaintiff, and defendant ap

jury by the learned trial judge to determine peals. Reversed.

the truth or falsity of the answers to the Argued before MITCHELL, DEAN, FELL, questions in the application, with instrucBROWN, MESTREZAT, and POTTER, JJ.

tions that, under the act of 1885 (P. L. 134),

answers which are in fact incorrect and Frederick J. Shoyer, for appellant. Thomas A. Fahy and Walter Thomas Fahy, for

untrue would not avoid the policy if they appellee.

were immaterial to the risk, provided they were made in good faith by the insured,

and in the belief that they were true. The MESTREZAT, J. This is an action of as- verdict and judgment were for the plaintiff, sumpsit on an insurance policy issued by the and the defendant company has appealed. defendant company on the life of Edward The first assignment complains that the Joseph Murphy, the husband of the plaintiff, court erred in refusing to permit the defendwho was named as the beneficiary. The ap- ant, on cross-examination, to ask Dr. Clark, plication was signed by the insured on No- a witness for plaintiff, the following quesvember 18, 1899, the medical examination tion: "Would you say that was not a propwas made the next day, and the policy was er treatment for tuberculosis ?" The treatissued November 24, 1899. The death proofs ment referred to was alleged to have been state that Murphy died April 5, 1901, of pye- administered by Dr. Atlee prior to the date lonephritis. The application contains the fol- of the application. The question was proplowing questions and answers: "16. Are you erly excluded. The treatment of the disease in good health? Yes. 17. When were you was not in issue, and therefore the question last attended by a physician? Four years was irrelevant. An affirmative reply to the ago. For what complaint? Neuralgia of the question would have tended to show that face due to a bruise. 23. Have you ever had the treatment administered by Dr. Atlee (answer 'Yes' or 'No' to each)

spit- was, in the opinion of the .witness, proper ting of blood ? No. 24. Have you ever had for tuberculosis, but it would not have aidany serious illness? No.” The defense to ed the jury in determining whether the pathe action is that the answers to these ques- tient was suffering with that disease, which tions were not true, and were known to be was the question at issue. untrue by the applicant, Edward Joseph Mur. The second, third, and fourth assignments phy, when they were made. It is claimed by allege error by the court in excluding the the defendant company that at the time the answers to questions, on cross-examination, insured signed the application he was not in put by the defendant to Dr. Clark, the phygood health, had consulted physicians for sician who had examined the insured for hemorrhages and spitting of blood, and died the risk, to ascertain whether, if the witness subsequently, on April 5, 1901, of consump- had been told by the applicant that shortly tion. The application contains, inter alia, the prior to the application he had consulted Dr following language: “I hereby declare and Atlee for a cough and for night sweats, that warrant that all the statements and answers fact would have had any effect with regard to the above questions, as well as those to passing bim as a first-class risk. The only

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effect of the reply to this question would stance, whether Hall's application for mem. have been to show the opinion of the witness bership in the association would have been as to whether, in view of the alleged undis- favorably passed upon if it had been stated closed facts, the risk was first-class, and in sucb application that be drank liquor. whether, if the alleged fact had been known, We think that the objections to these ques. the risk would have been accepted by the tions were properly sustained. The real iscompany. The issue to be determined by the sue was whether the statements made in jury, however, was the truth or falsity of the the application were true or false. What answers of the insured to the questions put would have been the effect if some different to him by the medical examiner; and, as af- statement from that therein contained had fecting that issue, it is apparent that it was been made to the association was of no conwholly immaterial and of no consequence sequence." what, under other facts than those disclosed The fifth assignment may be dismissed by the application, the witness thought about with the remark that a responsive answer the character of the risk, whether it was to the question put to the witness would good or bad, and whether the company would í not, in itself, have tended to disclose any or would not have accepted it. The testi- existing disease, which, as stated by counsel mony was therefore properly excluded. This on argument, was the purpose of the quesquestion has been ruled in other states, and tion. a like conclusion reached. In Rawls v. The sixth to the twelfth assignments, in. American Mutual Life Insurance Co. (N. Y.) clusive, and the twenty-second assignment, 84 Am. Dec. 280, a physician was asked on may be considered together. The defense to cross-examination, if he had known the in- this action in the court below was, as we sured had been addicted to certain practices, have seen, that the insured made false anwould he bave regarded his conduct as swers to the questions put to him by the likely to impair his health; and then the medical examiner. For the purpose of esmedical examiner was asked on cross-exam- tablishing this fact, the defendant offered ination: “If you had known, at the time to show that the insured was afflicted with you had made this examination (referring consumption during the latter half of the to the examination made for the defend. year 1900, and that he died of that disease ants), that Fisher was in the habit of using in the spring of 1901. The trial court held intoxicating liquors to excess, would you that the evidence was not admissible; that have regarded his life healthy and the risk "to ascertain whether he had consumption good?" The court held that the testimony at the time [of the issuance of the policy), was properly rejected, and observed: “This to prove that he had consumption in Septemtestimony was incompetent both on princi, ber, 1900, would not be any evidence in this ple and authority. It was of no consequence

The learned judge, therefore, exwhat, in the opinion of these physicians in cluded the testimony offered by the defendcertain cases, and under a certain state of ant to show the condition of the insured's facts, would be a good or bad risk for a life health in 1900, and that he subsequently insurance company to take, or what circum- died of consumption; and these assignments stances should be considered on the question under consideration raise the question of the of increasing or lessening the rates of insur- correctness of this ruling. We think the ance. These witnesses might give their opin. evidence should have been admitted. The ion on matters of science connected with defendant had introduced testimony tending their profession, but were not receivable to to show that during the year 1899, immedistate their views on the manner in which ately prior to the date of the policy, the inothers would be influenced if certain specific sured was afflicted with consumption, and facts existed." This decision was followed during that time was treated for that disin New York, in Higbie v. Guardian Mutual ease. It would have been evidence conLife Insurance Co., 53 N. Y. 603. There the firmative of this testimony to show that the medical examiner, called as a witness for insured was suffering with and being treated defendant, was asked in substance whether, for consumption from a date a few months if he had been advised of certain alleged un- after the policy was issued till he died with disclosed facts, it would have called upon the disease in the spring of 1901. The wellhim to make further inquiries, and as to the understood character of this disease, as beeffect such knowledge would have had upon ing usually slow and lingering, should not be his answer to the question as to the pro- overlooked in determining the relevancy of priety of taking the risk. It was held that the excluded evidence. It is doubtless true, these questions were properly rejected. In we think, that the insured could have been Illinois a similar view is taken of the ad- first attacked by the disease subsequent to missibility of such testimony. In Mutual the date of the policy, and under the eviAid Association v. Hall, 118 Ill. 169, 8 N, E. dence the jury could have so found. On the 764, the medical examiner of the company other hand, if the testimony convinced the was the witness being interrogated. The jury that during the greater part of the year court approved the ruling of the trial court 1900 the insured was afflicted with consumpin sustaining the objection to the testimony, tion, and that he died with that disease in and said: “They [questions) were, in sub- the spring of 1901, there would have been evidence, taken in connection with like testi- , dier or sailor who warrants himself a mermony as to the condition of the insured pre- chant has a void policy, even though he is not vious to the issuance of the policy, to jus- slain in battle, or does not perish at sea." tify the jury in finding that he had the dis- In Wall v. Royal Society, 179 Pa. 355, 36 ease at the date he made his answers to Atl. 748, it is said (Green, J.): "The general the questions of the defendant's medical doctrine that in actions on policies of insurexaminer in November, 1899. Whether the ance, with a warranty of the truth of the disease, if shown to have been present in the facts, the validity of the contract depends insured in 1900, existed at any prior date, on the truth of the warranty, and that the would have to be determined from the prog. engagement of the policy holder is absolute ress it had then made, and from the facts that the facts shall be as they are stated disclosed by expert medical testimony. This when bis rights under the policy attach, is evidence should go to the jury, with the so very familiar, and has been so frequently testimony showing the alleged similar phys- | declared, that a mere reference to a few of ical condition of the insured in 1899, as our modern decisions will suffice." bearing upon his condition at the time of Tbe act of 1885 has frequently been bethe issuance of the policy, and hence upon fore this court for construction. In the rethe truth or falsity of the statements in his cent case of Lutz v. Metropolitan Life Inapplication. The weight of the testimony surance Co., 186 Pa. 527, 40 Atl. 1104, it and the credibility of the witnesses were, was held error to refuse to instruct the jury as in other cases, for the jury. We are that, “the applicant and beneficiary in their therefore of opinion that the trial court application having stated and warranted that was in error in rejecting the testimony of- the insured 'never was sick,' and had no fered by the defendant tending to show that previous ‘spitting of blood,' and had conthe insured was suffering with consumption sulted no other physician, and had 'no conin 1900 and died of that disease in the spring sumption, and the written and printed stateof 1901.

case."

ment in the proof of death, and the unconThe numerous remaining assignments of tradicted proof and testimony, showing that error may be considered without special ref- he had spitting of blood, was sick previously, erence being made to them separately. The had consumption, and had consulted Dr. Muhcorrectness of the questions raised by these lenburg, the plaintiff cannot recover.” In assignments requires an interpretation of the reversing the trial court, the late Chief Jusact of June 23, 1885 (P. L. 134), Purd. Dig. tice Green said: "In a case of very recent 1046, and its application to the case in hand. occurrence in which we have just filed an The first section of the act is as follows: opinion (March 1. Metropolitan Life Insur“Whenever the application for a policy of ance Co., 186 Pa, 629, 40 Atl. 1100, 65 Am. life insurance contains a clause of warranty St. Rep. 887), we have had occasion to conof the truth of the answers therein contain: sider and decide this identical question. We ed, no misrepresentation or untrue statement there determined that the act of 1885 had no in such application made in good faith by the application in cases where the answer was applicant, shall effect a forfeiture or be a false, and related to some matter material to ground of defense in any suit brought upon the risk. Where it was doubtful whether the any policy of insurance issued upon the faith matter was material, the question of mateof such application, unless such misrepresen- | riality must be submitted to the jury; but tation or untrue statement relate to some where the matter involved was palpably and matter material to the risk."

manifestly material to the risk, the law was Hartman v. Keystone Insurance Co., 21 not changed either by the act of 1885 or by Pa. 466, was an action on a life insurance any decision before or since. Thus, in the policy in which it was stipulated that any present case, all the questions above enuuntrue or fraudulent allegations in effecting merated' were intrinsically and essentially the insurance should avoid the policy, and material to the risk, and have always been that the statements of the assured should so held by all courts of last resort. As the form the basis of the contract. Chief Jus- act of 1885 made no change in the law where tice Black, delivering the opinion, says: the matter in question was material to the "The plaintiff can only recover if the dec. risk, the duty of the court to pronounce uplaration of the assured, upon the faith of on this subject was the same after as bewhich the risk was taken, was strictly true fore the act. As a matter of course there in every material part. It will not do to say could not be any doubt that previous spitthat this was immaterial. Every fact is ma- ting of blood, or illness, or confinement to terial which increases the risk, or which, if the house by reason of illness, or medical disclosed, would have been a fair reason for service, or the attendance of physicians, or demanding a higher premium. Nor is it of having consumption, were subjects of the any consequence that the death was not, in most serious and material character, and fact, produced by a cause connected with the they have always been so held by the courts. subject of the misrepresentation. One who As it was always the duty of the court be. falsely declares himself free from consump- fore the act of 1885 to determine the mate. tion cannot effect a valid insurance on his riality of the question and answer in cases own life, though he died of cholera. A sol- which were perfectly manifest and free from

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