shop remained in the building till the fire occurred, but its use as such had been abandoned about two days before the fire. The Court read to the jury the first of the above covenants, and instructed them, in substance, that, although the tin shop remained there at the time of the fire, if it was not in use at that time it would not avoid the policy. Verdict and judgment for the plaintiff. The defendant took this writ, assigning for error the charge of the Court as above given. Edgar Cowan, for plaintiff in error. The two provisions in the policy are separate and distinct. One should not be made to blend with and qualify the other, which is absolute in its terms. J. F. Wentling and H. D. Foster, contra. Whether the tin shop was in use at the time the fire occurred, and whether the fire was caused by the shop, was rightly submitted to the jury. Girard Fire and Marine Ins. Co. v. Stephenson, 1 Wr. 293. The construction for which plaintiff in error contends, if adopted, would place the assured at all times at the mercy of his neighbors and adjoiners, who could at any time render void the policy between the assured and the company. Is it true, as the counsel for plaintiff in error contends, "That, if the risk is increased against the provisions of the policy, it is no excuse that the fire did not happen in consequence of it"? Mutual Fire Ins. Co. of Chester Co. v. Coatesville provision which declares such increase shall annul the policy, the assurer is absolved from the contract. This rule was enforced in Diehl v. Adams County Mut. Fire Ins. Co. (8 P. F. Smith, 443). It is settled by numerous decisions, and operates though the fire was not caused by the increased risk. A contract for insurance is no more subject to modification or change by one party without the other's consent, than any other agreement. The parties stipulate for a particular hazard at a given rate. If one increases the hazard he takes it out of the terms of the contract. He creates a risk against which the other did not undertake to insure, perhaps would not for any consideration, and certainly would not at the same rate. There is not much conflict in the testimony nor difficulty about the facts. For a considerable time before the fire the premises were occupied for a tin shop. For that cause the plaintiff paid additional sums for insurance to other companies. The shop was there at the time of the fire. It was error to submit the question, "Was it used at or immediately before the fire?" The jury should have been instructed that if the plaintiff knowingly increased the risk, or permitted it to be done, although no work had been done in the shop for a few days, he could not recover. Judgment reversed and venire facias de novo awarded. SHARSWOOD and Opinion by TRUNKEY, J. Nov. 11, 1878. THE COURT. One of the conditions of the policy provided, that, “If the risk shall be increased by any means whatever Oct. & Nov. '78, 107. . with the knowledge of the assured, during the Oct. 9, 1878. Kleber et al. v. Ward et al. continuance of the insurance, and notice thereof be not given to the company, and such increased Landlord and tenant-Distress for rent-Lia bility of property of stranger to. risk be allowed and endorsed thereon, this policy shall be of no force." Here is an express covenant that if the insured knowingly increased the risk without the consent of the assurer the policy shall be invalid. In this the case differs from the Mutual Fire Ins. Co. v. Coatesville Shoe Factory (30 P. F. Smith, 407). There the defence was made on the ground that gasoline had been used for lighting the building though such use had ceased before the fire. The Court expressly based the ruling on the fact that there was no provision in the policy, which made it void for a temporary increased risk in the mode of lighting. And, referring to a stipulation that if the insured engaged in a more hazardous business the policy should be void, said: "If a means of lighting the building in which the business of the assured is carried on can be deemed the business itself, then the rule covers the case and the policy is avoided." That case distinctly recognizes the principle that, if the risk be increased against a The property of a stranger found upon demised premises, left for no purpose of trade or other purpose requiring protection as a matter of public policy, is liable to distress for rent. A piano, leased to the tenant's wife for her private use, was distrained for rent, prior to the passage of the Act of May 13, 1876 (P. L. 171); upon replevin by the owner: Held, that it was liable for such distress. Error to the Common Pleas No. 1, of Allegheny County. Replevin, by H. Kleber & Bro. against William Ward and another, for a piano, piano-stool, and cover, distrained by the defendants for rent due by one J. H. Smith. At the trial, before BAILEY, J., it appeared that the plaintiffs had leased the property in dispute to Smith's wife, for her private use, with the privilege of purchasing at a certain price, in which case the sums paid as rent were to be credited on account. The rent accrued, and the distress was levied, prior to the passage of the Act of May 13, 1876, relating to the exemption of pianos, etc. upon notice given, etc. The defendants requested the Court to charge the jury (1) that, if the property in dispute was found upon the demised premises, it was liable to C. P. No. I. distress for rent; and that the plaintiffs were not entitled to recover even if they owned it and had rented it to Mrs. Smith as claimed. Affirmed. Verdict and judgment for defendants for $478.10, whereupon the plaintiffs took this writ, assigning for error, inter alia, the affirmance of the defendant's first point. A. M. Brown, for the plaintiff in error. The bailment to Mrs. Smith was a reasonable, customary, and legal business transaction, clearly consistent with public policy, and in the interest of trade and business. The property in dispute was, therefore, upon both principle and authority, exempt from distress for rent. Price v. McCallister, 3 Grant, 248. Common Pleas-Law. Oct. 14, 1878. THE COURT. The piano in this case was simply the property of a stranger found on the demised premises, left for no purpose of trade or other purpose requiring protection as a matter of public policy. It did not belong to or further the business of J. H. Smith, but was simply leased to his wife at a rental for her private benefit. The fact that the Act of Assembly of 13th May, 1876, was passed to exempt pianos, melodeons, and organs from levy and sale in such a case, is a legislative interpretation of the law as it stood before. We see no error. Judgment affirmed. Sept. 12, 1871. Fidelity Ins. Co. v. Clendenon. Execution-Sheriff's sale under a mortgageQuare, whether the provision of 4 of the Act of 1705, requiring notice of time and place of sale to be given to the defendant, can be invoked by the terre-tenant-Where the terretenant has suffered no injury, he cannot com plain that such notice was not given to the mortgagor. O. P. Cornman, for the rule. Brown et al. v. Sims et al., 17 S. & R. 138. Briggs et al. v. Large, 6 Casey, 287. Riddle v. Welden, 5 Wharton, 9. Karns et al. v. McKinney, 24 Sm. 387. Cadwalader v. Tindall, 8 Harris, 422. Bruce (Negley with him), contra. The property in dispute was, with other furniture of the tenant, distrained upon the demised The Act of 1705, relating to sheriff's sales in premises, a dwelling-house; and if the law were as proceedings under mortgages, provides that a claimed by the plaintiffs, a tenant might, by leas-written notice shall be given to the defendant by ing or borrowing all his household furniture, prac- the sheriff at least ten days before the sale, intically defeat the landlord's right of distress. forming him of the time and place thereof. And The tenant did not receive it in the course of his the Courts have so far enforced this provision as business as a means of making a livelihood; he to require that the notice shall, at least, be offidid not receive anything from the plaintiffs, but cial. on the contrary, they were paid for its use, and therefore it does not come within the exceptions to the common law rule. Rule to set aside sheriff's sale. Sci. fa. sur mortgage. The sale was made under a levari. The terre-tenant obtained the rule and the depositions showed that the price realized at the sale was somewhat below the market value of the property, and that the only notice of the sale received by the defendant, the mortgagor, was a casual observation from a friend on meeting him in the street shortly previous thereto. Purd. Dig. 484, 8 122 n. (a). Topper v. Taylor, 6 S. & R. 173. Passmore v. Gordon, 1 P. A. Brown, 320. 1 Tr. & H. Pr. 995. This notice is also required by the Act of 1836. Purd. Dig. 650, 8 76. A. T. Freedley, contra. The notice re The testimony as to the inadequacy of price is conflicting. The Act of 1836 (supra) relates only to the writ of vend. exp. quired by the Act of 1705 is never observed in practice, and it has been decided that it is not necessary. I Tr. & H. Pr. 1143. At any rate the terre-tenant cannot object to insufficiency of notice to the defendant. C. A. V. Sept. 19, 1878. THE COURT. The applica tion to set aside the sale in this case is not made by the defendant, the mortgagor, though the ground of it is that the notice of the time and place of sale required by the Act of 1705 was not given to him. It may be that the mortgagor and owner, who sells subject to a mortgage, is entitled to claim the notice provided for in the Act, but this right is not invoked by him, and he C. P. No. I. Nov. 13, 1878. W. H. Drayton, for the rule. To seek to secure the debt by obtaining a judgment on the note is not pressing defendant for payment of the money. To press a debtor means to distress him, by endeavoring to enforce satisfaction of a debt which he is unwilling or unable to pay. When plaintiff issues execution upon the judgment asked for, then the agreement not to press defendant may be urged in support of a rule to stay the writ. The payment of part of a debt is not a consideration which will support a promise to forbear to sue for the balance. Pabodie v. King, 12 Johns. (N. Y.) 426. E. C. Mitchell, contra. When plaintiff has sued out the mortgage of the original debtor, and exhausted all his remedies against him, he may bring suit against this defendant, but not before. perty; and this, we think, would be pressing him, in the sense in which the term was intended to be used by the parties to the alleged agreement. THE COURT. By obtaining a judgment against a business man, you injure his credit, and subject him to the inconvenience of a lien upon his pro Rule discharged. Oral opinion by BIDDLE, J. Moore v. Muirheid. Affidavit of defence-Promissory note-Bringing suit against an endorsee and obtaining judgElizabeth J. Hale died in this city on the ment, is a violation of an agreement "not to twentieth of July, 1878, intestate, leaving perpress the endorsee for payment until all reme-sonal estate in this county. On July 30, 1878, dies against the maker are exhausted." Rule for judgment for want of a sufficient affidavit of defence. Assumpsit on a promissory note, by holder against payee, who endorsed it in blank. The affidavit of defence set forth that the note was given to secure a debt of the maker for $10,000, who, at the time the note was drawn, also gave plaintiff his bond for $10,000, secured by a mortgage upon his property; after the note became due, and was unpaid, plaintiff having intimated that he should press defendant for payment, the latter assigned to plantiff two bonds The letters of administration still standing the and mortgages for $1500 each, as additional col-administrator is entitled to a year in which to lateral security, in consideration of which assign-settle the estate. letters of administration were granted to George ment plaintiff agreed with defendant that he Crawford v. Commonwealth, 1 Watts, 486. would "exhaust all his remedies against the maker before he would press defendant for payment of this money." Commonwealth v. Weart. Practice Administration of the estate of an intestate without heirs-Escheat. Rule to set aside fi. fa. J. A. Reed, contra. The Act of Assembly provides for an immediate seizure by the Commonwealth on the finding of the inquisition, which must be traversed if disputed. Purdon's Digest, tit. Escheat. It has never been decided in Pennsylvania that the administrator has a year in which to settle the estate. It has been frequently assumed but there is no decision to that effect. This Court has no jurisdiction and cannot interfere with an inquest of escheat except upon a traverse. C. A. V. Nov. 16, 1878. THE COURT. The administrator is in the legal custody of the goods and chattels of the decedent, for purposes of distribution. It is for the protection of creditors as well as others that the law appoints an officer for this purpose. The Commonwealth is in no other or better position than any other claimant or distributee. The administrator having been appointed before the inquest, the Commonwealth must assert its title in the same manner as any other heir or next of kin, by a citation to the ad ministrator to file an account in the Orphans' | of the within writ, on a conspicuous part of the Court. Rule absolute. Oral opinion by MITCHELL, J. said premises herein described, and by advertising notice thereof twice a week for two weeks, etc., agreeably to the Act of Assembly in such case made and provided." The return day was May 7, 1877. The defendant corporation was a cemetery company, and it appeared by affidavit that a large number of the unoccupied lots in the Oct. 26, 1878. cemetery were owned by trustees under the will of Stephen Smith, deceased. An appearance was entered for the company, but none for the trus tees. C. P. No. 3. Rule for judgment for want of a sufficient affidavit of defence This action was brought on a bond to secure to a mortgagee the repayment of premiums upon policies of insurance he had taken out upon certain properties owned by the mortgagor. The condition of the obligation was, that if Thomas Montgomery, the mortgagor, should upon the sale of each of said properties, pay Gercke, the mortgagee, for the premiums as above mentioned, "less ten per cent. discount upon the transfer thereof to the new owner, then this obligation to be void, or else to be and remain in full force and virtue." The plaintiff averred that the condition of the said bond was broken inasmuch as the properties have been sold, and the defendant had refused to pay the amount of the premiums as agreed upon. The affidavit of Court that the promise was conditional, and the instrument not within the Act. H. J. Scott, for the rule, contended that the amount in question had been liquidated, and that therefore this bond was within the affidavit of defence law. Dewey v. Depuy, 2 W. & S. 553. Van Dike v. McConnell, 1 WEEKLY NOTES, 276. C. F. Corson, contra, cited— Chas. Gibbons, Jr., for the rule. The service in this case was insufficient. The notice must be posted for two weeks previous to the return day according to the Act of Assembly. Wistar v. City, 5 WEEKLY NOTES, 279. M. H. Todd, contra. C. P. No. 3. City v. Olive Cemetery Co. Service of sci. fa. sur municipal claim-Posting -Act of March 11, 1846, sec. 3-An appearance entered for a cemetery company binds the owners of lots in the cemetery. Rule to set aside sheriff's return to a writ of sci. fa. sur municipal claim. The writ issued on the 21st day of April, 1877, and the return was: "Made known by posting May 2d, 1877, a true and attested copy The Act of Assembly does not require that the attested copy of the writ shall be posted on the premises for two weeks. The service will be a valid one, if the notice is printed for two weeks, provided an attested copy of the writ be posted on a conspicuous part of the premises at any time before the return day. Furthermore the defendants have entered an appearance in this case, and therefore the question of service does not arise. Zion Church v. St. Peters, 5 W. & S. 215. Assembly, the provisions of which should be The proceeding here was under an Act of carefully complied with in order to bind all parties in interest. The act requires that all parties shall have a specified notice, and that notice should be properly given. The Olive Cemetery Company have entered an appearance; but the trustees of many lots in the cemetery, under the will of Stephen Smith, deceased, have entered no appearance, nor have they received proper notice of the suit. The appearance entered for the cemetery company should not be binding on the trustees. THE COURT. Under the Act of 1846, section 3, the notice, in order to be sufficient, must be posted on a conspicuous part of the premises for two weeks before the return day. In this case, however, an appearance has been entered by the cemetery company, and it seems Nov. 2, 1878. to me that the trustees of the land in the cemetery are bound by the appearance entered. Rule discharged. Oral opinion by FINLETTER, J. October 15, 1878. November 2, 1878. THE COURT. While a vendor of real estate is bound to convey to his vendee a good and marketable title, yet if the title be complete, it is the well established custom and usage in Philadelphia, that he is not liable for any of the expenses of the transfer. Nor is it his duty to furnish the vendee with a brief or Frowert's Estate. abstract of title, in the absence of any agreement Petition for specific performance-Conveyance of to that effect. (Whitaker v. Williams, 7 Legal real estate-Vendor not liable for expenses of and Insur. Rep. 14.) -Nor to furnish brief of title-Custom of To enable a vendor to recover the purchase conveyancers in Philadelphia-Tender of deed money, it is only necessary to tender a deed, not sufficient to enable vendor to recover purchase the whole chain of title; the burden of proving money-Burden of proving defective title is the title to be defective is on the purchaser. upon purchaser-Vendor must supply missing (Espy v. Anderson, 2 Har. 308.) links in title at his own expense-But remuneration for so doing cannot be claimed against vendor by conveyancer of purchaser without previous agreement. By the usage referred to, the vendee must be at the expense of the deed, searches, recording, and either examination of the title, or preparation of a brief, as he prefers. The vendor does not even pay for the acknowledgment of the deed. But prior to the repeal of the Act of Congress of 1862, he was liable for the cost of the Internal Revenue stamps. (Callaghan v. McCredy, 12 Wright, 463.) Should, however, the title be defective or encumbered, and deeds, releases, etc., be missing or unrecorded, it is then incumbent upon the vendor, at his own expense, to supply the lost or broken links in the chain of title. But although the vendee or his conveyancer can demand that all deficiencies be supplied, and reasonable objections removed, yet neither has the right, without authority from the vendor, to perform the labor and necessary services, and claim from him compensation therefor. He may, for many reasons, prefer to employ his own conveyancer or counsel, to satisfy the doubts and scruples of the purchaser. In the present case it appears that the petitioner as trustee sold at private sale, by order of this Court, the undivided interest of her cestui que trust in certain real estate. The conveyancer of the vendee prepared the deed, which was duly executed and delivered to the conveyancer to hold until the searches were procured and the title examined and approved. The vendee entered into possession of the premises, and is in receipt of rent therefrom. After much delay, no objection was made to the title, but, when a settlement was requested by the petitioner and other vendors, the vendee claimed to deduct from the purchase money a large proportion of the expenses of the conveyancing. These, it is alleged by the petitioner, include services of the conveyancer, not required or authorized by her, and properly chargeable to the vendee. But in order to facilitate a settlement, she with the other vendors agreed that the sum stated in the petition should be deducted, which offer has been rejected by the vendee. After a careful consideration of the facts alleged Orphans' Court. Sur petition for specific performance. The following facts appeared from the petition: In pursuance of an order made March 23, 1878, the trustee of above estate executed a deed for one undivided third part of certain real estate to one Philip Wright. The deed was prepared by Wright's conveyancer, Beekman Potter, and was delivered to Potter in escrow, and shortly afterwards Wright took possession and collected rent. Three months or more elapsed and Potter had made no searches, and a meeting was had in July, at which Potter presented a bill to the petitioner, and representatives of the other undivided interests in the said real estate, for services and charges in conveyancing, amounting to $235.25. The vendors agreed to allow $81.25, which was refused. A proposition was then made by the vendors to Potter to pay the purchase money to the executors of Charles E. Frowert, and on the adjudication of the account to submit the question of the claim of Potter to the Court for settlement. This Potter refused to do, as he held the purchase money himself. The prayer of the petition was for a citation to said Wright to show cause why he should not pay the purchase-money due as aforesaid. The answer of Philip Wright alleged that he had bought the premises at an Orphans' Court sale in May, 1877, and the title had been refused and the sale set aside, and an order for a private sale of respondent's interest was made, but an imperfect brief was furnished and a new one had to be made; and in order to ascertain the discharge of certain ground-rents that appeared, there was much examination of deed books made as well as testimony of witnesses taken. That the bill was $235.25, and that the purchase money ought not to be paid until the bill was allowed. A. Atwood Grace and M. Arnold, for petitioners. Edward Olmsted, contra. |
