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taken to be equivalent to a renewal from Pursuant to said agreement, notes and time to time until the said total of three notice, the said John Greenaway, Sr., years has expired. .1!1 income from the purchased from the said Ilanover Savstock in the form of dividends to be paid ings Fund Society, for the petitioner and by the holder hereof to the said 1. Baer on her behalf, the said 384 shares of Gitt.
stock of the Hanover Cordage Company “Second: In the event of the death of and the said 130 shares of stock of the E. Baer Gitt at any time within three said 1.1. Giit Company, and paid said years from the late hereof, or in the society $70,000 for the same. event of any default in the payment of That since the said notes were given interest, the sail John Greenaway, Sr., and stock transferred as aforesaid, the or the holder of this obligation, shall petitioner paid to said John Greenaway, hrve the right, and is hereby authorized Sr., six months' interest on the said to retain the said stock as full payment S13.000 noie. of the obligation svith the same force and
Since that time the said John Greenaciest as if the said stock had been sold as of the date hereof by the said E. Baer var; Sr., diel testate, on the 2nd day of
Ilis will was duly proGitt to the said Jolini Greenaway, Sr., for the sum of tiity-seven thousand six sued by the register of wills of York
bated and letters testamentary were is
; Pa of the parties hereto that the transaction Countyr, l'a., 10 John Greenaway, Jr. reșresented by this instrument shall have
Since that time, the petitioner tendered the same effect as a sale in the event
the interest due on said notes to Said either of default in payment of interest, John Greenaway; Jr., executor as aforeor in the death of said E. Baer Gitt, said of the will of ihe said John GreenWithin the said period of three years.
away, Sr., as said interest became due, "llitress my hand and seal.
buut the said John Greenaway, Jr., re
fuser the same, claiming the stock as the "( Signer) E. BIER GITT (Scal). Jabsolute property of the estate of John “Witness: Lena Strickler.”
Greenaway, Sr., deceased, and that peti
tioner has no right, title or equity thereThe petitioner then executed and de-in, and that petitioner owes sai iestator, livered to the Hanover Savings Fund So-for his estate, nothing on account of said ciety the following: “January 21st, 1922.
That said! John Greenaway, Jr., has "Ilanover Saving Fund Society,
cleclared luis intention to treat all of said "Hanover, l'a.
stock as the unqualified property of the "Gentlemen,
estate of said John Greenaway, Sr., de“I hereby authorize you to make sale cener, and to dispose of the same in the of 384 shares of capital stock of Han- course of his administration of said esover Cordage Co., represented by Cer-tate as a part of the estate of said testificates Nos. 41 for 231 shares, 42 fortator. 95 shares and 40 for 58 shares, regis- The said John Greenaway, Jr., has tered in the name of the Hanover Saving filed a demurrer to the above petition, in Fund Society, Ilanover, Pa., at $150.00 which he denies the jurisdiction of the per share; and 130 shares of the capital orphans' court to act on the pravers of stock of the J. W. Gitt Co., represented the petition because, he alleges and arby Certificates Nos. 35 for 100 shares, gues; "the said petition shows upon its 36 for 25 shares and 37 for 5 shares, as face that there is a substantial dispute well registered in the name of the Han- involving the property mentioned in the over Saving Fund Society, llanover, petition.” Pa., at $100.00 eachi to John Greenaway, We cannot agree with the position Sr., Hanover, Pa. The proceeds of the taken lov the demurrant. sale of said shares to be applied to my
We must take the undenied facts as indebtedness with you.
stated in the petition as being true, until "Signed) E. BAER GITT."
they are specifically denied.
It must be remembered that a demur- not the court inquire as to the fact in isrer does not dispute the facts as stated sue? Within certain limits, imquestionin the petition, but only raises the ques-ably it may. If at testator's death the tion of a "dispute," "a substantial dis- property is shown to have been in his pute," without defining the “lispute” or possession, or if for any other reason it stating any facts which would deny the was presumptively his, a mere denial of statements and allegations contained in the ownership unsupported will not oust the petition.
the court of its jurisdiction, but the court Chief Justice Black, in the case of may proceed with the investigation so Knight's Appeal, 19 Pa. 193-404. has far as to inform itself whether the denial aptly said, " I fact is properly said to be is made in good faith and a substantial in dispute when it is alleged by one party dispute exists. If the dispute be a suband denied by the other, and by both stantial one, and the title be really inwith some show of reason.
the court further proceed to naked allegation without evidence, or settle and determine the matter in disagainst the evidence, cannot create a dispute?" pute within the meaning of the law. If
That question can only be answered by it could, a party might stop the distri- what the investigation reveals. bution (transaction) whenever he chooses to make a groundless assertion."
It has been decided in an opinion renIn "Words and Phrases" (1st ed.), we dered by Mr. Chief Justice Voschzisker, find “substantial dispute” to be defined for the Supreme Court, in the case oi as follows:
“When a conclusion of Cross' Estate, 278 Pa. 170, that the orfacts to be drawn from the testimony is phans' court has power of its own volione about which reisonable men might lion to send any issue of fact to the comhonestly differ. When, at the close of mon pleas. plaintiff's case, such a dispute exists on the evidence, a motion to non-suit on
The demurrant's counsel have not satthis ground cannot prevail."
isfied the court by any argument, that
the orphans' court has lost jurisdiction It is true that the legal authorities in of the proper settlement and distribution the State of Pennsylvania, as the able lof the decedent's estate, including the counsel for the demurrant argue, have matters brought before us on the petimany times declared that when there is tion. Under the equity powers of this "a substantial dispute upon a material court, we therefore make the following matter of fact," there can be an issue order and decree: awarded to try the fact, but those clecisions do not deprive the orphans' couri
And now, February 9, 1925: of jurisdiction in all cases, for, as was ist. It is ordered and decreed that said by Jr. Justice Stewart, in Cutler's John Greenaway, Jr., executor of the listate, 225 Pa. 167, 170-171: “Presum- will of John Greenaway, Sr., deceased, ably, every item of property an executor shall not sell, assign, transfer or in any has included in his inventory belongs to manner whatsoever dispose of the 384 the estate, and for all such he must ac- shares of the capital stock of the said count. The inventory is an admission on Hanover Cordage Company involved in his part that the property embraced in it the present controversy, or the 130 came into his possession as the legal rep- shares of the capital stock of the said I. resentative of the testator. If it be 11. Gitt Company involved in this conclaimed that testator owned other prop-troversy, until the further order of this erty which either came or should have
court, come into the hands of the accountant,
2d. The demurrer is dismissed. the burden is upon the party so claiming to show, first of all, that the omittech 3d. The demurrant, respondent in
. property was the property of the testa- this case, is ordered to file his answer to tor. Where this is denied and a claim the petition within twenty days from this
. of ownership in another is set up, may date.
10 D for a new
Allesheni culing in the latter the entire title. This Eisenberg v. Wolf
lot fronted about 31 feet on Last Street, and extended back about 10 feet to Gerst Alley. December 22, 1923. John
Wolf made a mortgage of the same preMechanics lien Sheriff's special re-mi-es to Julius Eisenberg, the plaintiff,
to secure payment of $3,500. turn: Erceptions to schedule of distri
March 20, 1024, Dell & Frederick, bution-lloraen - Via structure allorijanjer
partners, filed a mechanic's lien for ce
ment flooring against John Wolf and Alteration and repairs-cets of 1001 Robert J. Fisher, owner of the same
premises and contractors, for $1,358.78, and 1905.
claiming the last work had been done Exer lons were sustained sheriff's November 5, 1923. This mechanic's Seal return itWardina fund realized at alien was purchased by and was duly asjudic al sale to the mortgager instead of a mernenies' lion, where the contract was le signed to The Title Guaranty Company, and the last work done was prior to the plac, which postponed the lien thereof to the ing of the mortgage, but the lien was tiled the mortgages of the l'nited Security Subest quent thereto. In a mechanics' lien proceeding, it was held Company, above recited. April 1, 1927.
erection and construction Julius Eisenberg, the plaintiif herein, ennot alteration and repairs. where the Stered julgement by confession upon the
bond which accompanied the mortgage, standing, but a new building, about 30 by 60 fert, was built, two stories high. This was given him by Jolu lolf, in the sum of connected with a partially new building in the rear, only one story high, and they were
53.207.75, and issued execution thereon. o adjusted that they could be used together. Whereupon the sheriff sold the premises The crnent floors were laid over practically lon May 9, 1924, to Julius Eisenberg for the whole lot. This within the meaning of the law.
$2,050, of which suim the sheriff, after
payment of costs and taxes, distributed Exception to sheriil's special return. the balance, $1,410.08, in vit plaintiff.
To this special return exceptions were Edvin B. Goldsmith, for plaintiff. filed by Dell & Frederick for use, raisSamuel L. Dille, for defendant.
ing the question of prority of their
mechanic's lien. Pefore Sucaringen, Cohen and Kline, In the pring of 1923, while John Wolf JL.
and Robertit. Piher were together the
owners of the premises, they determined Swearingen, J., January 8, 1925. This
to erect an auto repair shop anıl garage case came before us upon exceptions to
11 on the lot afraid.
There was no a sherit's special return. The sheriff
general contractor. Ther themselves let di-tributed the balance of the money in the contracts for erecting the various his hands to the plaintill a- mortgagee. I parts of the structure, such as excavaThe exceptant claimed that this bal- tion foundation, cementing, etc. The ance should have been listributed to their mechanic's lien, asserting that it there were left standing the rear wall
structure upon the lot was removed, but was prior to the mortgage, though later and a portion of the side walls, which in late.
were but one story in height and extendJohn Wolf, the defendant, and Roberting from Gertley in the rear toward 1. Fisher were each the owner of an un-Ea-i Street about 50 feet. They condivided half of the premises described tracted with Knopp & Stork for the erecin the above stater writ, and on Novem- tion of a new building two stories high, per 22, 1923, each of them made a mort- having the front on East Street and exgage of his interest to United Security: tending back about ho feet until it joinLife Insurance & Trust Company, as se-jed with the old stable walls in the rear; curity for his debt of $2,000, or a total, for the removal of the stable partitions ; of $18,000; and on ecember 7, 1923.! and for putting a new skylight on the Robert A. Fisher countered luis interest rear portion, which was but one story in the premises to Tolin oli thus vent in height.
By August the building was ready for It is but fair that the building should the cement work. Tugust 27, 1923, Dell present to the eye that external change
! & Frederick gave Wolf and Fisher a indicating newness of structure which is written offer "To do the cement floor in calculated to put purchasers, mortgagees pour garage" for $797. The bid was ae- and other lien creditors upon an inquiry cepted orally, and they began work un for liens." Miller v. Hershey, 59 l'a. 64. der the contract a few days afterwards. The law was held to be the same after There was considerable delav; some of the passage of the Ict of 1901. Dunbar which was caused by other work, but the Washington Foundry, 210 P'a. 58. greater part was because Dell & Tired
Ilow then can it be said that what was erick had to excavate for the boiler room. done here was but an alteration and rewhich was placed under the rear, put in pair of an old structure? I new buildla concrete wall and underpin stone walls
ing, about 30 by 60 feet, was built, tho of the main part, and had come rein stories high, fronting on East Street. force work This produced quite a This was conected with a partially new lot of extra work. The extras amounted to $601,28. Dell & Frederick, however, and ther were
builling in the rear, only one story high, allowed a credit of $129.50 for some old could be used together.
so adjusted that they
The cement Hoor between the front and rear and in
tlocrs the boiler room, which was found sulti-whole lot. is one of the witnesses said,
were laici over. practically the cient. So that the total amount of the bid and the extras was $1,358.78.
Anybody can see it is a new building According to the testimony the last there now." We have no doubt this was
; work was done by the exceptants on No
a nel structure, within the meaning of
the lan. Veither lave we any doubt vember 5, 1923. Their mechanic' lien that the last work was done November was filed on larch 26, 1927. If the
5. 1923. Consequently the mechanic's building erected was nell structure,
lien was filed within six months after the their lien was filed in time; if it was a completion of the work. case of mere altering and repairing an old building, then their lien was filed too
The plaintiff contended that the lien late. This, therefore, is the important
was insufficient. With this contention question for decision.
We do not agree. This lien was not filed Section 3 of the Act of June 4, 1901,
under the Act of 1001, P. L. 131. It was P. I. 13!, provides:
filed under the amendment thereof, ap"A substantial addition to a structuri proved April 17, 1905, P. I.. 172, which or other improvement shall be treated a struck down Section 11 of the Act of
1001. a new erection or contruction there of and the addition and the structure or
In this case there was no general conother improvement of which it becomes tractor and no architect, and the owners a part, and the curtilage appurtenant to let the various contracts themselves, as both, shall be subject to the lien. Every before stated. There was about August adaptation of an old structure or other 27, 1923,
written contract for the improvement to a new or distinct use. cement flooring, which is attached to the which effects a material change in the in- lien. There was an oral contract to exterior or exterior thereof, shall also be cavate for the boiler room and for supdeemed an erection or construction there-porting the cement floors above the same, of."
which are all set forth in the bill of parThis was no more than restating the ticulars attached to the lien; and the law as declared under the Act of 1836, owners and contractors have never raised P. L. 605.
any objection thereto. In our opinion, “The idea which runs throughout all the mechanic's lien filed is in compliance the cases is newness of structure in the with the Act of 1905, which restored the main mass of the building—that entire law to what it was prior to the Act of change of external appearance, which 1001, with respect to what such a lien denotes a different building from that must contain. which gave place to it, though into the The extras were made necessary by composition of the new structure some what the owners agreed the mechanic's of the old parts may have entered. *** lien claimants should do. These extras
were thereby made a part of the original practicable for him to carry out the purcement contract, because the flooring chase, he arranged with Frank J. Rines, could not be laid until the boiler ro was put in shape to hold the floor which one of the petitioners, that Rines take covered it. Wil of the foregoing could his place as purchaser of the property.
Ull have been seen by the mortgagee, this
Boil parties agree that Rines was to replaintiti, i hen he vas negotiating for his par to DeGeorge the $200 paid to the mortgage.
sherift. DeGeorge contended that in adle therefore conclude that the excep
dition to this he was to receive from tion to the sheriff's return hould be sus
Rines the sum of $200, as a prolit. This taineid.
in denied by Rines. Rines associated And now, to nit. January 8th, 1925. him and the two received from the
William Kosial, the other petitioner, with after argument and upon consideration, it is ordered and adjudged that the ex
sheriti a deed for the property occupied
by Deeorge. ception nedix Dell & Frederick for use
Sometime after having to the sheriff's special return, in abore received the cleed from the sheriff, they stated case, are sustained, and that the demanded possession of the premises sheriff pay to Dell & Frederick for use
from DeGeorge, who refused to surrenof The Title Guaranty Company the sum
ler possession, besause: 24 he alleged,
Riues had failed to rarry out the terms of S1,358.78, with interest from the 6th ar of lovember, 1923.
of their agreement, in that he had failed to pay him the S200 paid to the sheriff
and the $200 protit. Admittedly Rines C. P. of
Berks ('o. had not paid him the $200 paid by De
George to the sheriff. Rines and Kosak RINES et. al. v. DeGEORGE
then started a proceeding under the let of Ipril 20, 1005, P. L. 230, to recover
possession of the premises. In answer Sheriff's sule--shit 20 «Ipril, 1905, P.ivas filed to their petition and deposi
tions for each sidle were taken while the 1.. 239--Purchaser's right to possession proceeding was pending. Before the --Ludlord and tenant.
matter came before the court for final
disposition, DeGeorge vacated the premThe Act 20 April, 1905, P. L. 239, was in. ises, and when the ease came up for artended to provide a new and more efficient way to enable purchasers at sheriff's sale to gument the petitioners were in possesacire possession of the property they pur-sion of it. chased, and does not apply in a case where a landlord seeks to oust his tenant.
So far as the possession of the propProceedings under the Act 20 Ipril, erty was concerned, the question be1905, P. 1.. 230, to recover possession of comes merely a moot one except in so premises.
far as the costs are concerned.
amination of the depositions shows that Il'. A. Il'itman, Jr., and John B. Stei'- both sides contended that after Rines e'ns, for plaintiff
had agreed to become the purchaser of Rotherme & Manger, for defendant.
the premises in the place of DeGeorge,
they had also agreed that DeGeorge was Biddle, P.J., Ninth Judicial District, to continue in possession of the premises specially presiding. November 22, 1024. for some period of time. What that
Samuel DeGeorge, the respondent in period was and just what the terms were, this proceeding. was the tenant of a prop-were disputed, the parties giving differerty on Sixth street, in the city of Read- ent versions, but both agreeing that it ing. During his tenancy, the property had been agreed that DeGeorge was to was sold by the sheriff on an execution remain in possesson for sometime longer. based on a judgment which antecated The petitioner Rines states, among other DeGeorge's lease, DeGeorge became the things in regard to this: "I further sent purchaser at the sherifi's sale and paid Mr. DeGeorge, probably five weeks af$200 to the sheriff on account of the ter the two weeks agreed upon were up, purchase price. Finding that it was im-'a notice to vacate the property, which