a ground of defense. No evidence, satisfactory or otherwise, was submitted to the board; both defendant and his wife testified that they had not notified the board of the fact. It will be noted that the defendant was tried by a jury. Whether or not this is the correct method of trying an appeal from a summary conviction under the school code is not raised by defendant. Indeed, having applied for a trial by jury, he could not be heard to allege error in its granting. bring the bill upon record by its own pleading by way of a demurrer. Until defendant has first moved to compel plaintiff to perfect his statement by setting forth a copy of the standard form of vouch er, advantage of the limitation of right of action contained therein can not be taken by demurrer. Statutory demurrer to plaintiffs statement. L. P. Stark, for plaintiff. D. R. Reese, for defendant. Newcomb, P. J., January 8, 1926.This is one of the cases in the hands of Judge Edwards at the time of his death. Plaintiff sues for the loss sustained on a shipment of perishable freight delivered to it by defendant. Counsel for defendant having stated, during the argument, the efforts made by him to compose the differences between his client and the school authorities, we No doubt the latter is sued as a commust not conclude this opinion without commending him for the zealous and con- rather than asserted. The terms "shipmon carrier. But that is suggested, scientious efforts which he has put forth. ment," "bill of lading," etc., are used. We trust that he may bring these efforts That leaves something to conjecture and to a successful conclusion. The school authorities having agreed to allow de- as such is not good pleading. Instead of fendant's children to attend another attacking it for informality defendant demurred because on the face of the deschool within the district, which is not much farther from his home than the claration it appeared that upwards of school to which his children were here- eight months elapsed before the claim tofore assigned, defendant should follow was presented to defendant. The point of the objection is that it was then barred by limitation prescribed in the standnot only a violation of the law, but also a law to be issued by railroad companies. ard form of that voucher as required by grave injustice to his children. the advice of his able counsel and send them there. Any other course constitutes Now, March 8, 1926, the motions for new trial and in arrest of judgment are overruled and dismissed. Defendant will appear within ten days of this date for sentence. C. P. of Lackawanna Co. But, in order to avail itself of this limitation, defendant had to bring the bill upon record by its own pleading, no copy being exhibited in plaintiff's statement. Hence, there is nothing here but a speaking demurrer, and that is not permissible. The fact in mind of counsel would be all right as a matter of defense on the merits if he were setting it up by way of plea. But it is not for him to introNotarianni & Co. v. D. L. & W. duce it into plaintiff's pleading in this R. R. Co. way in order to make it demurrable. He should have first moved to compel plaintiff to perfect his statement by setting forth a copy of the bill to which it had referred. That is the office of an excep Perishable freight-Claim-Lapse of tion to the statement for informality. time-Pleading. In order o avail itself of the limitation prescribed by law in the standard form of voucher required to be issued by railway companies, the proper practice is for defend ant to except to plaintiff's statement for informality on the ground of no copy of same Until it so appears, advantage of the limitation of the right of action can not be taken by demnrrer. The demurrer is stricken off with leave to counsel to except, as above suggested, or at his option to take defense being exhibited in the statement, and not to on the merits within fifteen days. C. P. of Dauphin Co. Metzger's Petition Tax sales-Payment of taxes-Overpayment-Set-off in subsequent Voluntary payment. Charles H. Meily formed a partnership for the transaction of a sawmill business, under the name of McCreary & Company, and the said land was assessed for taxes in the name of McCreary & Company. 3. Elijah McCreary died intestate, seized of a one-quarter undivided interest in said property, on April 12, 1910. 4. The Treasurer of Dauphin County sold to D. S. Light, for $14, the said years-land as a whole as the property of McCreary & Company, on Aug. 2, 1920, for the unpaid taxes of 1917. A tax is not a debt in the ordinary sense of the word, and the right to demand the tax does not depend on the consent of the taxpayer. in Taxes are not the subject of set-off. A taxpayer who has voluntarily paid taxes excess of what is due cannot demand that the overpayment shall be set off against the taxes for the succeeding year. If he makes such demand and is refused, and his property sold for the tax assessed which he refuses to pay, the tax sale is valid, and he cannot afterwards complain. Petition for establishing title to land acquired by predecessors in title at a sale for unpaid taxes. er. 5. Within two years subsequent to Aug. 2, 1920, Mrs. A. J. Antrim, for herself and other parties interested as heirs of John McCreary, redeemed the one-fourth undivided interest in said land. 6. The Treasurer of Dauphin County executed and delivered his deed to D. S. Light, conveying the said threefourths undivided interest in said property, which deed is resorded in Deed Book M, volume 20, page 576. 7. The said D. S. Light and Laura F. Light, his wife by deed dated June. Metzger & Wickersham, for petition-fourths interest to the petitioner, which 18, 1924, conveyed the undivided three Hargest, P. J., July 1, 1926.-The petitioner in this case asks the court to adjudge and decree valid and indefeasible in her the title to certain land situate in the Borough of Royalton, in this county. An answer was filed and depositions taken, from which we find the following. Facts. 1. Jorn McCreary was seized of the real estate specifically described in paragraph 5 of the petition filed in this case. He conveyed an undivided onefourth interest therein to Elijah McCreary and a one-half interest therein to Adolphus Reinoehl and Charles H. Meily, leaving a one-fourth undivided interest remaining in himself. He died intestate Sept. 8, 1892. deed is recorded in the office aforesaid in Deed Book M, volume 20, page 577. 8. In August, 1914, the same tract for taxes, and on July 5, 1916, within of land was sold by the county treasurer for taxes, and on July 5, 1916, within two years after the sale, it was redeemed by H. A. Reinoehl, of Lebanon. In redeeming said property, the said H. A. Reinoehl inquired of the county treasurer the amount of taxes due up to that time, to wit, July 5, 1916, and was advised that the amount was $228.57, which amount he paid. 9. The said amount of $228.57 included $150.57, which was legally assessable against the property in question, and $78, which was not assessed against said property, but against property of the McCreary estate. IO. When the said H. A. Reinoehl 2. The said John McCreary, Elijah learned of the mistake, he notified the McCreary, Adolphus Reinoehl and county treasurer thereof and demanded consent of the taxpayer. There is no express or implied contract to pay taxes. The levy of a tax is an act of government: I Cooley on Taxation (4th ed.), pars. 22 and 23. If the 1917 tax is inDis-valid, it must be because H. A. Rein a return of the surplus payment of $78. II. Thereupon the said H. A. Reinoehl requested a credit on future taxes which might be levied and assessed against McCreary & Company, but no official of the county promised or agreed to such credit or set-off against subse quent taxes. 12. On May 2, 1917, said H. A. Reinoehl sent a check for $6.05 to the tax collector of the Borough of Royalton to pay the taxes for the year 1917 on the property in question, but subsequently requested the tax collector to return the check and received back $5.85. The difference of twenty cents was not accounted for. He made no subsequent effort to pay the tax for 1917, nor for any year thereafter. Discussion. oehl had a right to demand that his In McCracken v. Elder, 34 Pa. 239, 240, the Supreme Court said: "We are not prepared to admit that a taxpayer can interpose a claim of set-off against the collection of taxes assessed upon him:" Com. v. Mahon, 12 Pa. Superior Ct. 616. tion:' 34 Cyc., 565. In Bindley v. Pittsburgh, 64 Pa. Superior Ct. 371, 377, the court said: "It is almost universally held that, in an The petition in this case is based upon action for taxes, set-off of an indebtedthe Act of May 31, 1923, P. L. 477. ness of the state or municipality to the which provides that in cases where land tax debtor will not be allowed, the stahas been sold for unpaid taxes and not tutes of set-off being construed in the redeemed, the purchaser or his succes- light of public policy as not allowing the sor in title may present his petition, un-remedy in proceedings for this purpose, der oath, to the court of common pleas nor is such a claim subject to compensaThe same should of the county in which the land is situate, setting forth the requirements as be true as to municipal liens for imcontained in the said act of assembly, provements. It can readily be seen how and thereupon a rule shall be granted a defence such as here proposed, in a upon all persons who have or claim any proceeding depending on statute, with right in said land to show cause why the an appropriation of funds for a specific title of the petitioner to said land should amount by a legal body from money usnot be adjudicated and decreed valid ually secured by an issue of bonds as the and indefeasible as against all rights and basis of its action, might involve the city claims whatsoever. The proceeding set in many collateral questions which out in the act has been followed in this would work a great injustice to and seriously interfere with its rights. The city depends on the amount realized from the bonds and the assessments due from property owners to pay for the improvement. This money could not be diverted by the city, and it must be if this defence were allowed: Major v. Aldan Borough, 209 Pa. 247; Pittsburgh v. Harrison, 91 Pa. 206: Brientnall v. Philadelphia, to use, 103 Pa. 156; Erie City v. Butler, 120 Pa. 374. If the city owed several months' rent this could not case. The question now arises as to whether the overpayment by H. A. Reinoehl of the tax of 1916 and his request that such overpayment should be a credit or setoff against future taxes makes the sale of the property by the county treasurer for the tax of 1917 invalid. A tax is not a debt in the ordinary sense of that term, and the right to demand the tax does not depend on the be used as a set-off to a lien for taxes: McCracnen v. Elder, 34 Pa. 239; Hopper v. Pittsburgh, 5 Pa. Superior Ct. 41, 45; Tagg v. Bowman, 99 Pa. 376, 379: Nor should it be to a lien for municipal improvements." See, also, City of Enterprise v. Rawls (Ala.), 11 Am. Law Reps. 1175; 86 So. Repr. 374. In Scobey v Decatur County, 72 Ind. 552, it is distinctly held that "the county commissioners have no power to declare, even by express contract, a man's taxes paid before they were assessed, and certainly mere ministerial officers such as the treasurer and auditor would have no such authority." In Shelton v. Blount County (Fla.), 81 So. Repr. 562, it was held that taxes collected for one year could not be applied as a credit on a fund to be accounted for by the tax collector for another year, and in New Orleans v. Davidson, 30 La. Ann. 541, 31 Am. Rep. 228, the court said: "Considerations of public policy require that a tax of one year should not be compensated by an overpayment of a previous year. The taxes of each year are levied to meet the exigencies of that year. If they could be reduced by the reduction of such sums as have been wrongfully demanded and paid, the revenues requisite for the support of government might be diminished so largely, as to occasion public detriment." 159 Moreover, the overpayment by Reinoehl must be considered a voluntary payment. It is the settled law of this State due or of more than are due cannot be that a payment of taxes which are not recovered where the payment is made without protest: Borough of Allentown v. Saeger, 20 Pa. 421; Taylor v. Board of Health, 31 Pa. 73; McCrickart v. City of Pittsburgh, 88 Pa. 133, 136. In the latter case it was held with reference to the overpayment that "the city had a right to consider the money as their own and deal with it accordingly." In Peebles v. Pittsburgh, 101 Pa. 304, 310, it was held that even a payment under protest was to be considered a voluntary payment unless there was duress, restraint or compulsion, and that "a protest is of no avail except in the case of payment made under duress or coercion, and then only as evidence tending to show that the alleged payment was the | result of duress." We are, therefore, bound to conclude that H. A. Reinoehl has no authority to recover back the overpayment and could not require the application of it to the taxes for subsequent years. It follows that the county had the right to sell for the unpaid taxes of 1917, and, there being no legal obstacle to that sale, the title which passed as the result of the sale is valid and indefeasible. We file herewith an order and decree confirming said title. In Cartersville Water Works Co. v. City of Cartersville, 89 Ga. 689, 16 S. E. Repr. 70, it is held that a taxpayer cannot require a fund in the city treasury due to him to be applied on the payment c. P. of of his tax. See, also, Amey v. Shelby County, 114 U. S. 387; United States v. Pacific R. R. Co., 4 Dill. (U. S.) 71, 27 Fed. Cas. 399; McVeigh v. (Ark.), 8 S. W. Repr. 141. Lanier From the foregoing authorities it appears beyond question that H. A. Reinoehl had no right to demand or expect that the overpayment of tax for 1916 should, at his request, be applied to the payment of taxes for the subsequent years, particularly in the absence of any agreement on the part of the taxing authorities so to do. Calm v. Link, et al. Berks Co. Practice, equity-Mortgages-Prayer for decree of sale - Jurisdiction - Bill taken pro confesso. decree a sale of mortgaged premises on a bill against a mortgagor. Where in an equity proceeding the defendants have entered their appearance but failed to file answers within the time allowed, the plaintiff is bound by the rules of equity prac tice to enter an order that the bill be taken pro confesso, before asking the court to make a decree ordering the sale of mortgaged premises. Petition for decree ordering sale of real estate. J. Milton Miller, for plaintiff. F. A. Marx, Silas R. Rothermel and J. R. Dickinson, for defendants. A court of equity is without jurisdiction to alleges); (2) that said mortgages be defiled by a mortgagee, not a corporation, creed to be due and payable in default by reason of waste (although he nowhere alleges that he has been injured thereby), and that a sale may be made by the plaintiff in accordance with the terms of said mortgages; (3) that the equity of redemption and other interest of the mortgagors as well as the equity of redemption and other interests of all of the holders of liens (without stating who they are or that they have been made parties to the proceeding) be forever barred; and (4) other relief. The proposed decree contains, without proof thereof, an adjudication of an amount due, comStevens, J., August 17, 1926.-Plain- prising the principal of two mortgages, interest thereon, insurance premiums tiff's solicitor, without having entered an paid and interest thereon, and an attororder that the bill be taken pro confesso ney's commission, and an order that the and without such decree having been mortgaged premises be sold clear of all made, which is the procedure required encumbrances upon the terms therein outunder Rule 50 of the Rules of Equity lined by a trustee therein named. Practice, has presented and asks the court to make a decree, among other things ordering the sale of mortgaged premises. Appearances have been entered by the defendants, but no answers have been filed within the time allowed. The solicitor presenting the proposed decree has informed us that there is no objection to it by any of the parties. The decree might well be refused because the state of the proceedings does not permit the entry of a final decree at this time, even if we were convinced that we had the authority to enter the same. Plaintiff has filed his bill alleging that he is the mortgagee of certain real estate, which he sold to one of the defendants for part cash and the balance in purchase money mortgages duly recorded; that said real estate was sold to another of said defendants, who in turn sold to a third defendant, who gave a mortgage thereon to the fourth defendant; that the defendants have allowed the premises to remain unoccupied, are not properly supervising the maintenance thereof, and have allowed the residence to get into a state of disrepair; and that a sale of the premises should be made as a whole, thus preventing further waste. He prays (1) that has mortgages be decreed to be first liens (although he nowhere in the bill so Plaintiff's solicitor is unable to point to any authority justifying the desired procedure, either upon a bill specifically praying therefor, or where equity has taken jurisdiction on any equitable ground, as for the prevention of waste, and ordered the sale of the mortgaged premises. He relies upon the statement of a procedure outlined in Pomeroy's Equity Jurisprudence (4th ed.) vol. 4, sec. 1228, as warranting the decree. It is not in accord with the law of this State, which to us appears clearly to hold that in a case such as this, between a mortgagee, not a corporation, and a mortgagor, we are without jurisdiction, as a for: Dorrow v. Kelly, I Dall. 142; Ashcourt of equity, to make the decree asked hurst v. Montour Iron Co., 35 Pa. 30; Bradley v. R. R. Co., 36 id. 141; New York Trust Co. v. Coal Co. (No. 1), 227 the court has the power to order the sale id. 611, 626. Without deciding whether of mortgaged premises to protect against mitted, we say that this, from anything the consequences of waste proven or adappearing on the record, is not such a case. The record in this case is not such as to warrant the entry of the decree asked for, nor have we the power to grant the same. And now, to wit, Aug. 17, 1926, the decree is refused. |