C. P. of Lackawanna Co. fendant's real property, hereinafter described, with an appropriate order of relief. Hence personal jurisdiction was acquired by publication as in the statute provided. Barnfather v. Barnfather Husband and wife-Desertion-Support--Husband's real estate-Act May 23, 1907, P. L. 227. 4. The premises referred to is a certain town lot in the twenty-first ward of the city of Scranton, described as follows: "Being lot number eleven, in square or block number four, upon a plot of lots known as 'Farr's Ideal Home Sites,' which said plot has been recorded by John R. Farr. Said lot measures forty feet in front on Farr avenue, the same width in rear, and one hundred Under the Act of May 23, 1907, P. L. 227, a court of equity may direct the seizure and sale of a husband's real estate to enforce pay-thirty-six feet in depth to a court for pubment of the amount awarded to the wife for lic use as delineated on said plot." The her maintenance and support, where it ap- lot is improved with a frame dwelling house and as such its estimated value is about $5,000. pears that the husband had deserted her and their two minor children, without reasonable cause, ceased to contribute to their support, and that his whereabouts are not known. Bill in equity for support of married table title only by virtue of a purchase by 5. Defendant is seized of the equi Woman. Harry Needle, for plaintiff. J. R. Edwards, for defendant. article of agreement from John R. Farr -the legal owner. Whether the purchase money has been fully paid does not distinctly appear. But it is claimed by counNewcomb, P. J., November 9, 19297.-sel that only a small balance remains unBill for the relief of a married woman on paid. Defendant is not known to have ground of desertion. From the pleadings, evidence and argument of counsel, I find the following: 1. The parties are husband and wife, who were married at this city, the place of their common domicile, in 1909. They lived and cohabited together as such until November, 1924, when, without reasonable cause, defendant deserted his wife and their two young children, now aged twelve and ten years, respectively. By occupation defendant was then a miner earning not less than $200 a month, and was of sufficient ability to suitably provide for and maintain his wife. Co any other property, real or personal, the period of his absence would be a rea- The facts are believed to warrant the following: I. Plaintiff is entitled to such measure of relief as in such case is afforded by provision of the statute hereinabove cited. 2. Such desertion of his family has been persisted in by defendant from that time ever since, so that his whereabouts 2. For that purpose a decree should have never been known to plaintiff. In be entered subjecting the above described the meantime, by her personal labor, she has maintained herself and children without any help on part of defendant what soever. premises to a lien for the amount so chargeablee to defendant for plaintiff's use, at the rate of $100 per month, computed from December 1, 1924; payment thereof to be enforced by seizure and sale of the premises by hand of such official and upon such terms as the court shall 3. This proceeding is had under the provisions of the Act of 23d May, 1907, P. L. 227. Its object is to charge de-appoint. Let a decree nisi be entered according- 49/100 dollars ($427.49), 'one-half of the ly, to become final at the end of ten days interest due on the aforesaid mortgage at after notice to parties, unless exceptions the time of Caroline Hinden's death. The be taken in the meantime sec. reg. defendants, under Section 20, of the Practice Act of May 14th, 1915, filed their affidavit of defense, raising the three Lancaster Co. questions of law, viz: C. P. of McLain, Executor, v. Hinden Husband and wife-Joint ownership of mortgage-Interest-Survivorship. A mortgage given to a husband and wife jointy is held by entireties with survivorship, and where the wife dies her executor cannot recover from the mortgagor one-half of the interest due up to the time of her death, as the ownership of the mortgage and all that was due upon it survived to the husband. Affidavit of defense raising question of law. Judgment for defendant. Harold G. Ripple, for plaintiff. Groff, J., December 31, 1927.-In this case, Charles F. McLain, the executor of the last will and testament of Caroline Hinden, who died December 24th, 1926, and who was granted letters testamentary in due course on said estate, brought suit in the Court of Common Pleas of Lancaster County to No. 28, November Term, 1927, to recover one-half of the interest due on a certain mortgage dated November 9th, 1925, and recorded in the Recorder of Deeds Office in and for Lancaster County in Mortgage Book 277, Page 204, for ninety-five hundred dollars, it being a lien against the premises No. 602 North Queen Street, Lancaster, Pa. The mortgage was made and executed by Clarence B. Hinden and Lottie M. Hinden, his wife, to Frank X. Hinden and Caroline Hinden, his wife. The first installment of interest was due according to the pleadings on November 9th, 1925forty-five days prior to the death of Caroline Hinden, whose executor is the plaintiff in this suit. The amount claimed is four hundred and twenty-seven and Ist. The statement of claim sets forth no cause of action. 2nd. The statement of facts relied upon by the plaintiff shows clearly that the plaintiff, the personal representative of a deceased wife, has no right to recover on a chose in action which was held by the husband and wife as tenants by entireties. 3rd. The statement of claim does not aver that Frank X. Hinden, husband of Caroline Hinden, predeceased his wife and without this averment, plaintiff, the personal representative of the wife, cannot recover. The statement does not clearly state, but it was conceded on the argument of the case, that Frank X. Hinden was the husband of Caroline Hinden, and that he survived his said wife. the The mortgage, according to pleadings, was executed to Frank X. Hinden and Caroline Hinden, husband and wife, and a tenancy by entireties, or an ownership by entireties was therefore created in them as husband and wife. "A tenancy by entireties arises whenever an estate vests in two persons, who are, at the time when the estate vests, husband and wife. It may exist in personal as well as real property, in choses in action as well as in choses in possession." Bramberry's Estate, 156 P. S. 628; Klinke's Estate, No. 1, 210 P. S. 574. In the latter case, the husband and wife had a deposit in bank in their joint names, and they held by entireties and not by moieties, and upon the death of the one, the survivor took the whole. And again, in Bramberry's Estate, above recited, it was held that where "a conveyance of land to husband and wife in consummation of their joint purchase of it during coverture vests in them an estate by entireties, and when on a sale of the land so held they take in their joint names a mortgage for the purchase money, the presumption is that they intend to hold We sustain the contention of the defendants and decide the question of law in their favor, and enter judgment in favor of the defendants and against the plaintiff. the mortgage as they did the land." Therefore, there seems to be no doubt but that Frank X. Hinden and Caroline Hinden held the mortgage referred to in the estate and on which the interest is due as owners by entireties. In Gasner, Appellant, v. Pierce, et al., 286 P. S. 529, a case recently decided, it Trust Company of Conemaugh v. Berriman, et al. was held that a tenancy by entireties is an Use United States Savings & interest held by the husband and wife together so long as both live, and at the death of either, by the survivor so long as the estate lasts. There is but one estate, and in contemplation of law it is held by but one person. Such interest, arising by the unity of person, has not been abolished or affected by the Acts of April 11, 1848, P. L. 536; June 3, 1887, P. L. 332; June 8, 1893, P. L. 344; May 24, 1923, P. L. 446, and May 13, 1925, P. L. 649. Question of fact-Accommodation enNeither husband nor wife, in whom prop Petition to open judgment-Defense— erty has jointly vested as an estate by endorsement or guaranty by corporationtireties, can sell or assign their individual Enforceability—Ultra vires. rights therein without the joining of the The accommodation endorsement or guar enforced. Whether the corporate evidence of indebtedness is the legal obligation of the corporation is a question of fact for the determination of a jury. Petition to open judgment. Rule abso other, or dispose even of the expectancy anty of a corporation is illegal and cannot be of survivorship, and creditors of either acquire no enforceable lien by obtaining judgment or title by sale in execution. And in the same case, it was held, that where the husband and wife owned property jointly, and the property was rented lute. by the husband to a tenant, and the wife collected the rents, that the rent was properly paid and discharged, she having had a right to receive the whole of it, and that the proper disposition of the money paid in such case is a matter for determination between ths husband and wife, but the party owing the rent is relieved from further obligation when he has paid to the wife." If the defendants in this case have paid the interest to Frank X. Hinder, the surviving joint owner of the mortgage, they are absolutely discharged from further payment of the same, and if they have not so paid the interest, all moneys due on the mortgage belonging to the survivor of the tenancy or ownership by entireties, that is, the present owner of the mortgage, and they are obliged to pay the same to him. There is, therefore, no obligation to pay the interest sued for to the plaintiff in this suit. R. C. Widmann, Jos. Levy, for petitioner. Shettig and Nelson, Boose and Boose, contra. Berkey, P. J., March 26, 1928.-This case is for decision upon petition, answer this record it appears by the undisputed and depositions taken by the court. From evidence that that the Conemaugh Coal Mining Corporation was formed October 24, 1924, by a merger of the Berlin Coke Company, The Freedom Coal Mining Company and the Yukon Coal Mining Company. This company is a bankrupt, which estate is in the hands of S. E. Dickey, trustee. The Conemaugh Coal Mining Corporation, on the 10th day of December, 1924, was the owner of certain coal lands and mining rights containing 145.463 acres, situate in Conemaugh Township, Somerset County, Pennsylvania. It caused this property to be mortgaged in the sum of this proceeding, that the bond and mortgage are unenforceable by the First National Bank of East Conemaugh, or its assignee, as collateral security as to the bonds owed by it issued by the several corporations named. $17,500.00 as collateral security for the herein named, in the sum of $44,268.00. redemption at par when due on the $38,- This was a proceeding to make the Cone800.00 of bonds owned by the First Na- maugh Coal Mining Corporation, an artitional Bank of East Conemaugh, Penn- ficial person, accommodation endorser, sylvania, listed as follows: "Conemaugh which act then was and yet remains ilCoal Mining Company Numbers 7, 54, legal and void. The guarantee of the 55, 56, 27, 28, 29, 77, 78, 79, 80, 81, 164, bonds owned by the bank was taken with 176, 180, 228, 290, 301, 306, 307 and 308 full knowledge of all the facts and cirof the total par value of $16,800.00. Park cumstances and therefore not enforceHill Coal Company Numbers 1, 2, 3, 4, 5, able: Cook on Corporations, 7th Ed. Vol. 6, 7, 36, 51, 58, 67, and 70 of the total 3, page 2939. Section 744. It is the genpar value of $10,000.00. George Pearce eral rule that the accommodation in& Sons, Inc., Numbers 7, 8, 9, 27, 28, 29, dorsement or guaranty of a corporation is 38. 48, 81, 112, 244, and 236, of the total illegal and cannot be enforced, and there par value of $12,000.00. The total par is nothing in this transaction to take it value of all of the foregoing bonds being out of this general rule: Culver v. Reno $38,800.00." Also as collateral security Real Estate Co., 91 Pa. 367, 220 Pa.; 39, for the redemption of (at) par, when 12 A. L. R. 114; Cook on Corporations, due, of $17,500.00 of the $38,800.00 of 7th Ed., Vol. 3, page 2937, Section 774. bonds owned by bank (First National I conclude therefore, from the record in Bank of East Conemaugh, Pennsylvania), hereinbefore listed, together with interest thereon, the specific bonds so to be redeemed from time to time to be at the election of bank; and also collateral security for the payment of all notes last mentioned, viz: Frank Slick note An analysis of the evidence pertaining $4,888.00, Frank Niseley notes, $2,790.00, to the notes of the six individuals named Ray Seaman note, $10,000.00, L. C. Has- in Respondent's Exhibit 2, raises an issue tings note, $10,000.00, J. M. Dunbar note, of fact as to whether these notes $.6590.00, and Harry Berriman note, standing in the names of the above stated $10,000.00, making a total of $44,268.00. individuals, represent an indebtedness of The bond and mortgage are attacked the Conemaugh Coal Mining Corporation. on the ground that the execution and delivery of them is ultra vires in that these were not properly authorized by the board of directors; granting this fact to be established, yet the bond and mortgage were executed and delivered December 10, 1924, and not attacked until these proceedings were instituted by the trustee in bankruptcy, on September 10, 1926. This position cannot be sustained provided the consideration given for the bond and mortgage was a legal one: 10 R. C. L. 48; Manhattan Hardware Company v. P. Phalen, 128 Pa. 110-117; Cameron v. Christy, 286 Pa. 405-411-412. The bond and mortgage have now by assignment become the property of the United States Savings and Trust Company, of Conemaugh. Now, March 26, 1928, judgment opened and the petitioner let into a defense upon the following terms: The United States Savings and Trust Company shall be plaintiff, and S. E. Dickey, Trustee for the Conemaugh Coal Mining Corporation, shall be defendant, and the question for determination by a jury, is thus stated: Were the notes of (1) Frank Slick in the sum of $4,888.00, (2) Frank Nisley in the sum of $2,Was the consideration a legal one? 790.00, (3) Ray Seaman in the sum of The purpose of this mortgage (Respond- $10,000.00, (4) L. C. Hastings in the ent's Exhibit 2) was to better secure The sum of $10,000.00, (5) J. M. Dunbar in First National Bank of East Conemaugh, the sum of $6,590.00, and (6) Harry Pennsylvania, of bonds owed by it issued Berriman in the sum of $10,000.00, or by the Conemaugh Coal Mining Corpora- any portion of said notes the legal oblition, Park Hill Coal Company, and gations of the Conemaugh Coal Mining George Pearce & Sons, Inc., and to bet- Corporation on the 10th day of Decemter secure the notes of the six individuals, ber, 1924? C. P. of 13 Allegheny Co. uties of the sheriff for execution on January 24, 1924. The deputies took with them several employees of the defendant to assist them. Deford v. May, Stern & Co. Damages-Forcible entry-Writ of replevin-Deputy sheriffs. A compulsory non-suit was entered in an action for damages for forcible entry into plaintiff's home by deputy sheriffs in executing a writ of replevin to recover furniture sold by defendant to one who had it in plaintiff's apartment, where entrance was gained through a window, and it was not shown that the deputies were under the direction of plaintiff. In executing a writ of replevin the sheriff may break outer doors and enter by unusual ways and there is nothing wanton, malicious or oppressive in what is done. Motion to take off non-suit. Refused. The deputy sheriffs met with some resistance from the plaintiff, but one of the employees of the defendant gained entrance through a window and then opened a door, whereby an entrance was effected. He did this at the direction of one of the deputy sheriffs. It was not shown that the employees of the defendant were acting under the control or direction of the defendant. They did what they did, at the direction and under the control of the officers of the law. The plaintiff proved this by the officers who were called by her, and of course she was bound by their testimony. In executing a writ of replevin "the sheriff may break outer doors or enter by unusual ways" for that purpose: Jones v. Herron, 31 W. N. C. 263. There was nothing wanton, malicious or oppressive in what took place at the plaintiff's home on the morning of January 24, 1924. Besides it was not shown that anyone there was acting on behalf of the defendant. Consequently the defendant could not be held liable in this action and the judgment of non-suit was properly entered. Waldo P. Breeden, for plaintiff. Louis A. Caplan, for defendant. Before Swearingen and McVicar, JJ. Swearingen, J., January 7, 1927.-This case was tried before the late Honorable John D. Shafer, who, at the close of the plaintiff's case, entered a judgment of C. P. of compulsory non-suit. To remove that judgment is the object of the motion now before the court. The plaintiff, Emma Bertha Deford, brought this suit in trespass against May, Stern & Company, the defendant, to recover damages for, what she termed, a forcible, wanton and illegal entry into her home by the defendant's agents and employees. Clearfield Co. Du Bois National Bank v. Olsen, et al. Tax lien-Assignment of taxes-Lend Where a bank lends money to pay city The defendant is engaged in the retail furniture business at Pittsburgh, Pennsylvania. The defendant had delivered ing money to pay taxes—Priorities. some furniture to a Mrs. Fusshauer. In January, 1924, Mrs. Fusshauer was living taxes, and takes from the city an assignment in the home of the plaintiff, and had with of its interest in the taxes, and the taxes are her there the furniture which she had re-paid either before or after the assignment, ceived from the defendant. January 23, assignment, in the distribution of the fund the bank has no priority, by virtue of the 1924, the defendant brought an action in raised by a sheriff's sale of the taxpayer's replevin against Mrs. Fusshauer to recover possession of said furniture. The writ was placed in the hands of two dep-ordinary creditor. real estate. In such case, the payment of the taxes ended the lien and the bank was merely an |