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days before taking effect," all of which is required to be done by the act of 1851.
Upon these facts we are asked to sustain the first exception and set aside the report.
The objections then are, if we divide the exception into such parts as will enable us the more readily to discuss it:
Ist. That the eastern terminis is not a public point.
It is of course meant by this that the ordinance of 1870 is repealed by that of 1871, but the latter ordinance has never been completed, and is now inoperative. This was recognized by the counsel who argued the exception, but he urged the view upon us that at any moment, notwithstanding the lapse of time, the necessary steps may be taken to give life to this dead enactment, and that then the
2nd. That South street has not been pending appeals from the assessment of opened to the borough line.
3rd. That there is no ordinance extant requiring it to be opened.
In the first place it is to be observed that the general road law of 1836, (2 Purdon 1272) nowhere provides that a public road shall terminate at a public point-the 11th section of that act which provides for the laying out of roads from dwellings or plantations to a highway or place of necessary public resort," has reference entirely to private roads, and the 3rd section of the act requires the viewers to report "whether the road desired be necessary for a public or private road. I admit that the current of judicial construction gives color to the assumption that a public as well as a private road must have such an outlet-hence we find the courts determining what constitutes a public place, and they have held a "grist mill," and a "saw mill," a "cemetery" and a "church" to be points at which a public road may terminate.
In the case we have in hand, it is difficult to conceive a more public point in the county of Cumberland than its county seat, and we do not suppose the learned counsel who argued the exceptions intended more by his argument and exception, than that there was no way of getting beyond the inclosed field and into the borough-in other words that the road proposed is a mere cul de sac.
It is true that South street has not been opened to the borough line, but we do not agree that there is no ordinance extant requiring it to be opened."
damages will end, and an impassible barrier erected to those who seek to enter the borough by means of this road.
It is enough for our present purpose that no such no action has as yet be taken, and it is perhaps well to suggest, that af ter the ordinance extending this street, the appointment of viewers to assess the damages and the confirmation of their report, it is at least doubtful whether the borough has the legal right to repeal the ordinance of 1870. Certainly not if individual rights have vested, and it would seem from the cases, that those to whom
damages were awarded have acquired a vested right to the sum so awarded.— (1 Wend. 54, 520.) 2 Wr. 249.
Again it was insisted "that the appeals now pending must be disposed of before the borough authories can proceed to open the street, and that after that they may open the street or not as they see fit and that the court would have no more power to compel them to do it, than it would have to compel the legislature to enact a certain law, and that the legislature and the councils stood upon the same footing."
It is true that the questions relating to damages must be adjusted before South street can be formally opened, but when that is done, we have no doubt that those entitled to receive the money can apply to the court for a writ of mandamus to compel the borough authorities to pay the amounts, and if necessary to collect the money by appropriate assessment, and that if they refuse to open the street that
the court would have ample power to issue a similar writ and compel them to do their duty. They have the absolute right to determine whether the public convenience and interests require them to ordain additional streets or extentions of those already opened-and as it is a matter in their discretion no court can compel them to act-but after the ordinance has passed, and the question of damages settled, the right of the citizen commences, and the power of the court may be invoked. The Supreme Court long ago decided that in this regard, there is no analogy between the legislature and city or borough councils: 20 Smith 469; 7 Wright 400.
The case cited on the argument by the learned counsel who appeared for the report, was not unlike the one in hand. (Road in Jefferson and Rush Townships, 2 W. N. C. 138.) Said the court below, "An unopened state or county road may be a suitable place for the termination of a public road. When the former road is opened, according to the duty of the supervisors, it would certainly be a public point, and the newly laid out road will perhaps not be opened before the earlier one. It becomes the duty of the supervisors to open both for the benefit of the people and then the community may be accommodated with highways as fast as required." This was affirmed.
learned predecessor in that district, dismissed the exceptions and confirmed the report, which was afterward affirmed by the Supreme Court.
No opinion was filed in the court below, but the decision doubtless proceeded upon the broad ground that the borough line was a public point, and that when the travelers over Spring Garden Road sought admission to the borough, the Councils of York would furnish an avenue through which to enter. No street had been ordained connecting with the "post on the borough line," but the authorities, mindful of their duty to the public, soon supplied the missing link.
It is no answer to these petitioners that they may reach Carlisle by other roads as was said on the argument. It was said of old that "all roads lead to
Rome," and it may doubtless be said with equal truth, that in Cumberland county, all roads lead to Carlisle-but when seventy-five respectable citizens complain of the inconvenience of access to it, and the report of viewers lays out a road for public use, from which its necessity must be inferred, (17 S. & R. 388) it ought to require something more than the barren technicalities here interposed, to defeat the public convenience.
We are therefore of opinion, for the reasons assigned, that the first exception to this report ought not to be sustained. We merit under the authority of the case think the second exception also withont above cited (17 S. & R. 388). There are other exceptions pending, relating to the whose property this road is laid out. They damages assessed the land owners through have not been argued, and until disposed of no order can issue to open the road.
A stronger case than either is Spring Garden Road, 7 Wr. 144, the facts are imperfectly reported-but enough appears to show that the road was prayed for and laid out "to the line of the borough of York." The petition and report show more fully that the western terminus of the road was "through the improved lands of George Welsh to a post at the line of the borough of York on the east side of said borough on lands of George Welsh." The fifth exception filed to that report was that, "the western terminus of said road has no public outlet or connection with any other public road or highway." My promise.
For the present therefore we only dismiss the first and second exceptions.
Deeds without words convey no real estate.
Court plaster-Damages for breach of
C. P. of
Socks v. Socks.
Judgment--Assignment of--Equities between original parties.
A petition was presented by the children of A., deceased, alleging that the judgment originally given by B. to C. was to secure moneys which C.. as guardian of said children, had loaned to B; that the judgment had been assigned by C. to the present equitable plaintiffs, and praying the Court to set aside said assignment, and that the judgment be decreed for the use of said children. HELD, That the judgment being to C. absolutely, and having no ear-marks on it to show the presence of any secret equities and there being no evidence that the assignees had notice of such equities, the assignment will not be disturbed.
that he does not take it subject to the secret Adams County. equities of third persons. This is very familiar doctrine and has been repeatedly enforced by the Supreme Court of this State. In Davis v. Barr, 9 S. & R. 140, it was said by Gibson J.: "It certainly is not a general principle of equity, that a purchaser for valuable consideration of the legal title to any kind of property, should take it subject to an equity of which he had no notice." And again on p. 141: "But with any agreement between the original parties inconsistent with the purport or legal effect of the instrument, the assignee had nothing to do. No such act; and the assignee is not bound to call agreement is within the purview of the matters, the existence of which he has no on the obligor for information about reason to suspect, the necessity of inquiry being limited to want of consideration and set off."
Rule to set aside assignment, &c.
The petition of Margaretta Socks, defendant in the above judgment, alleges that she being about to purchase some land as a home for herself and family made an arrangement with the guardian, with the consent of her children, to invest their money in land, and that the money secured by said judgment against her is a trust fund, invested in the property, now and ever since occupied by her and said children. This judgment was given to the guardian in his individual capacity, and not as guardian. The judgment was afterwards assigned and revived, and is now held by Edward McPherson, Margaretta Socks and Edward J. Cox. The guardian died insolvent. This rule was taken to set aside the assignment, and the judgment marked for the use of the children of Lieut. John Socks,
June 25, 1883. MCCLEAN, P. J. The Court is prayed that all the assignments may be deemed invalid and set aside, and the judgment be decreed and held in trust for the use of Peter Socks, Sophia Shildt, Elizabeth Sheely and Annie Socks, children of Lieut. John Socks, deceased, and of Margaretta Socks, the defendant in judgment, on the equitable ground that the judgment represented trust funds of said children. "It is very true that the assignee of a judgment or mortgage takes it subject to all the defences of the obligor against the obligee, but it is equally true
In Mann v. Dungan, Assignee of Morris, 11 S. & R. 75, a set off was permitted between the original parties, against the assignee of the bond. In Gochenauer et al v. Gooper et al, 8 S. & R. 203, the question was with the assignees under the Insolvent Act.
In the case of Bury, assignee of Binkley v. Hartman, 4 S. & R. 186, the question was a payment made by the obligor to the obligee before notice of the assignment. So it was in Wheeler, assignee of Baynton v. Hughes' Ex., 1 Dallas 27.
In Rundle et al v. Ettwein, 2 Yeates
YORK LEGAL RECORD. will gain or lose by the decision; vide
23, the bond, was without consideration. In Reed's Appeal, 1 Harris 476, the question was as to the title to the land.
There is nothing in evidence whatever that would have put the assignees as prudent men upon inquiry. I am inclined to the opinion that in any point of view they were not subject to the duty of inquiry for such latent equities as it is sought to set up against them, and that they can stand upon their clear legal title to the judgment. The principles stated here received recent recognition and application in appeal of the Mifflin Co. Nat. Bank, reported in Outerbridge 150. The present claimants by petition are strangers to the record. The note with warrant of attorney is executed to John Socks, Sr., not as guardian. It has no ear marks whatever indicating that it was for trust funds. And still further, there is no competent or sufficient evidence that the judgment represented guardian money. We have no testimony from Mr. Woods, the attorney who drew the note, as to the nature of the debt. But what are we offered? First, the testimony of the petitioner, Margaretta Socks the obligor, who alleges in her petition that she being about to purchase some land as a home for herself and family, made an arrangement with said guardian, with the consent of her children, to invest their money in said land, and that the money secured by said judgment against her is a trust fund, invested in the property, now and ever since occupied by her and said children. She seeks to defeat the right and effort of the assignees to collect from her. Her interest and attitude are directly in conflict with the unqualified terms of the judgment and with the interests of the assignees.
The obligee assigned the judgment note just before judgment was entered upon it. She disputes and denies the lawfulness of this assignment and seeks to impress upon the fund a character which it does not bear upon the record, and all this with the mouth of the other principal party closed in death. She is directly interested in the question and case before the Court? She
McMurray's Appeal, 13 W. N. C. 136.
The next witness John F. Socks does not prove anything about the consideration of the judgment, neither does John Sheely.
Peter Socks testifies in relation to it, but can it be contended that he is a compehimself and others against the act of the tent witness? He is directly claiming for man who is dead. Peter must certainly gain or lose by the decision in this proceeding. Neither does the calling of Peter by the respondents to depose before another officer remove his incompetency when called to testify in his own behalf. Under Sect. 2 of Act 15 April 1869, a party to the record of any civil proceeding in law or equity or a person for whose immediate benefit such proceeding is prosecuted or defended, may be examined as if under cross-examination, at the instance of the adverse party, or any of them, and for that purpose may be compelled, in the same manner, and subject to the same rules for examination, as any other witness, to testify; but the party calling for such examination shall not be concluded thereby but may rebut it by counter-testimony.
And the third section provides that the testimony of witnesses authorized by the act may be had by depositions, &c.
Well, when he is called by the adverse party his testimony does not prove the consideration of the judgment. But it weighs against his mother and himself, when he shows that he read the judgment of revival in favor of John N. Socks and Edward McPherson and explained to his mother as he was able, notwithstanding the force of this may be somewhat obscured by other statements of his not consistent with it.
Sophia Shildt, another of the parties, does not prove the issue, and she is clearly incompetent.
The standing and testimony of the last witness for the petitioners, Margaretta Socks, sen., must be examined with some care. She is the widow of John Socks the elder, and also one of the assignees of the judgment. Mr. Duncan appeared for her, but has not answered. It may be said that she testifies against her own interest, as an assignee of a part of the judgment. But the effect of this is to relieve the estate of her deceased husband and to benefit her consequently if that
estate were solvent. Her testimony is claimed to be adverse to the act of her
husband in the assignment of the judg
ment and he is dead.
But without determining the question of the competency of this witness, and taking the testimony, what does she prove? she says: "I never saw the receipts. He (the old man) told me that he had a judgment. He told me that he had got a judgment instead of the receipts. He said nothing about giving back the receipts. He said nothing to me about the receipts." Thus seriously impairing the previous statement and on cross-examination "I can't tell what it (the judgment) was given for. My husband did not tell me what the note was taken for." In such uncertain, self-contradictary testimony sufficient for the purpose of decreeing a judgment of record to be not the property of the beneficial plaintiffs of record, but for the use of strangers
of the record.
Still further Edward McPherson and Edward J. Cox in their sworn answer deny the truth of the statements made by the petitioner Margaretta Socks, in her petition, as to certain arrangements made between her and the said John Socks, Sr., for the investment of the money of her children in real estate bought by her and as to the payment thereof and the receipts given therefore. If even the testimony of Margaretta Socks, sr., was full and perfect, we might well in equity call for the testimony of more than one witness before depriving the assignees of their property, after a revival by the defendant, of the judgment to the original assignee and to Edward McPherson, and after five years have elapsed since the assignment to Mr. McPherson, and after his assignor, John N. Socks, has become insolvent, as is represented in the petition: Burk's Appeal, 39 Leg. Int. 314. Graham v. Donaldson T. W. 453. Rule discharged.
Heaffer v. Lingg et. al.
When an arrangement is entered into with minor children, through their guardiau, the rights of all parties must be carefully preserved. The children will not be allowed to profit by an unlawful act.
Defendants, being minors, gave judgment in consideration of a conveyance of land. While of course an execution on such judgment must be restricted to the land in question, they will not be permitted to refuse to pay their share of said judgment and at the same time retain their interest in the land.
Rule to open judgment, &c.
This judgment is on sci. fa. and alias sci. fa. against John E. Lingg, Joseph F. Lingg, Francina Lingg, and Jacob H. McMaster, guardian of Elizabeth R. Lingg, David A Lingg, Sarah Emma Lingg, Mary W. Lingg and Harry M. Lingg, minor children of David Lingg. The petition asked to have the judgment opened, alleging that Francina was a married woman at the time of issuing the sci. fa., and that her husband was not jointed in the writ. It also appeared in the testimony that she was a minor at the time of giving the original judgment.
Wm. Heaffer conveyed the land to defendants in consideration of the judgment The sum of this note in controversy. judgment also included an indebtedness of the father of these defendants to Heaffer, and the entire arrangement was entered into in order to give defendants a clear title to the land. The petition attacked the validity of the original judgment, and all the questions raised are stated in the Court's opinion.
June 25, 1883. MCLEAN, P. J. The petition verified by affidavit alleges a defence to the original Judgment No. 46 of Aug. T. 1876, on the part of the first three named defendants, in the sci. fa. who were the defendants in the ali. sci. fa. to wit John E. Lingg, Joseph F. Lingg and Francina C. Lingg, and against whom upon two returns of nihil, the judgment of November 15, 1881, was entered.
No defence whatever is offered upon the ground of any matter subsequent to the original judgment, except the coverture of Francina and that is deemed in
sufficient as appears further on and therefore the opening of the judgment upon
the two nihils would avail the defendants nothing.
As to the judgment by confession of Jacob H. McMaster, guardian, upon the scire facias, he has had no day in Court in this proceeding. A rule should be served upon him to show cause why he should not become a party and why the judgment confessed by him should not be opened. It is quite plain that his act cannot bind Elizabeth B. Lingg if she was of age before the confession of judgment by the guardian, upon the sci. ia. But Jacob H. McMaster is the legal guardian at this time of Sarah Emma, Mary V. and Harry M. Lingg. It appears from the