Dimling vs. Klauss et al.

dedicated and accepted as and for public highways or appropriated and taken for public use under the right of eminent domain, does not apply in the case at bar.

The result is that parties occupying and using land within the lines of the alley, openly and adversely for the requisite period of time, acquire title. to the land so used and occupied. A question is raised as to whether under the defendants' own testimony and that of the plaintiff, the occupancy and use of the land in the rear of his lot was such as to give him title thereto. It is contended that if in fact he had been holding the land adversely he would not have mentioned his intention to erect a garage. This contention is not without force, but is not controlling. The controversy in this case does not refer to land, but to an easement; that is, the plaintiff does not claim title to the ten-foot strip. Defendant claims title, grounding his claim on adverse possession for the statutory period. Did the defendant take, and hold, possession subject to the easement or adversely thereto? There is no evidence showing recognition by defendant of any adverse rights in the soil or in the easement nor of any assertion of any right in either by anybody for more than 21 years prior to suit. Defendant has been in actual, cpen, uninterrupted possession since 1893. It is not essential that all the words employed to indicate adverse holding, and with which lawyers are familiar, be used. It is sufficient to say that defendant's possession has been exclusive and continuous, for this implies adverse, hostile, visible and all the other terms employed in characterizing the possession necessary to give title.

When a man encloses and occupies land continuously he thereby proclaims, though he may not speak, that the land is his.

But there is another phase of the case deserving consideration and which is sufficient to warrant the refusal of an injunction. It is not disputed that a considerable part of the alley is occupied by a concrete retaining wall, sidewalk and stairs leading to the second story of plaintiff's apartment houses and that they were constructed by plaintiff. Neither is it disputed that he is occupying part of the alley as a flower garden.

For a considerable distance the sidewalk and retaining wall occupy nearly one-half the entire width of the alley. True Mr. Dimling says that if the parties interested want the alley he will remove the wall, etc., and in this he is no doubt sincere, but the fact remains that he is occupying and has placed in the alley improvements that are essentially permanent. It is manifest that if the owners of property on the opposite side of the alley put in similar improvements the unoccupied strip would not exceed four or five feet in width.

In view of the admitted facts and facts not controverted the conclusion is that plaintiff is not entitled to equitable relief.

It is therefore ordered that the Findings of Fact and Conclusions of Law be filed and that a decree nisi be entered sec. reg. directing that the bill be dismissed.

Johnson Brothers vs. Smythe et al.

Mechanic's Liens-Sub-Contractor-Lack of Notice-Filing Bond.

In a scire facias upon a mechanic's lien by a sub-contractor for alterations and repairs, the defendant filed a bond thus discharging the lien. In the trial of the general contractor's lien, the defendant was allowed to have deducted from the claim, the amount of the sub-contractor's lien. Held: That the defendant could not subsequently set up lack of notice of intention to file a lien by the sub-contractor and thus defeat his claim.

Motion for new trial and for judgment non obstante veredicto. July Term, 1912. C. P. Allegheny County.

Hugh M. Stilley, for plaintiff.
Thomas Watson, for defendants.

ΟΡΙΝΙΟΝ.

No. 2582

SWEARINGEN, J., April 30, 1915. The Johnston Brothers, plaintiffs, were sub-contractors of Leonard Hanselman, the general contractor, whereby they put on a new roof, new tin work, re-set a furnace and put in some new furnace pipes, in and upon the house of Mary E. Smythe, the defendant. The plaintiffs did not notify the defendant of their intention to file a Mechanic's Lien before their work was finished. But they did notify her that they would file a lien within 45 days after the work was completed, which they subsequently did.

After the work was done, the general contractor filed a lien for the whole amount of his contract, which included the amount of the aforesaid contract of the plaintiffs.

June 14, 1912, the plaintiffs issued a writ of scire facias upon their said lien, to which the defendant filed an affidavit of defense. August 6, 1913, the defendant filed her petition and a rule was thereupon granted to show cause why she should not file a bond, in addition to the payment of any recovery that might be had, and why the claim of the plaintiffs should not be wholly discharged as a lien against her property. This rule was made absolute and the bond was filed.

At the trial of the scire facias upon the general contractor's lien, the jury at the defendant's request deducted the amount of the claim of Johnson Brothers from the general contractor's claim. That appeared from the record which was offered in evidence.

This case then came on for trial. The Court was requested to direct a verdict for the defendant, because it appeared that "work done and materials furnished were in connection with alterations and repairs" to the defendant's building, and that no notice was given of an intention to file a lien on or before the last materials were furnished. This request was refused. The jury was instructed to return a verdict for the full amount of the claim of the plaintiffs, which was accordingly done. The defendant thereupon filed motions for a new trial and for judgment non obstante veredicto.

When the defendant invoked the protection of that section of the Mechanic's Lien Act, which provides for the giving of a bond for the purpose of discharging the lien from her property, it seems to us that she must be held to have waived the alleged defect in the lien. The purpose of giving the notice, which was not given, is to warn an owner so that he may protect himself in any settlement with the general contractor. But this defendant had such notice in fact, and she availed herself thereof. After having pleaded to the scire facias, and after having the lien discharged by the giving of the bond provided in the Act, it is too late for the defendant to question the pleading of the lien upon the grounds taken. Thereafter the case went to trial upon the merits. It was not tried upon the lien, in the sense that plaintiffs were seeking to maintain the lien against the defendant's property.

Johnston vs. Smythe et al.

Van Sciver vs. Churchhill, 35 Sup. Ct. 220.

Upon the merits no valid defense was presented. In the action brought by the general contractor, this defendant was allowed credit for the amount of its claims to these plaintiffs. All the questions relative to the work, it appears, were submitted to the jury at that trial. Having received this credit once, she now has the money which ought to go to the plaintiff. She cannot have credit for the same thing twice.

In our opinion there was no error in directing a verdict in favor of the plaintiff, and we see no reason for granting a new trial.

ORDER.

And now, to wit, April 30, 1915, after argument and upon consideration, the motion for a new trial, ex parte defendant, is refused; and the motion for judgment non obstante veredicto, ex parte defendant, is also refused.

To which ruling of the Court the defendant excepts, and exception is allowed, and at their instance a bill of exceptions is received.

Taylor vs. Allen.

Real estate-Sale of Covenant against liens-Breach of Action for.

In an action in assumpsit for a breach of covenants against incumbrances it appeared that at the time of the execution and delivery of the deed there were assessed and unpaid taxes upon the land for which subsequently liens were filed and an application by the vendee for the striking off of the liens had been refused, whereupon the vendee paid the liens.

Held that the words "grant, bargain and sell" are a covenant against incumbrances such as this and that it was not necessary that the vendee suffer an actual eviction because of the encumbrances before bringing suit, and that he was entitled to recover the amount of taxes so paid.

Rule for judgment for want of sufficient affidavit of defense. No. 105 January Term, 1910. C. P. Allegheny County.

J. F. Calhoun, for plaintiff.

S. H. Allen, for defendant.

FORD, J., April 11, 1914.-This is a rule for judgment for want of a sufficient affidavit of defense. The action is in assumpsit for an alleged breach of covenants against incumbrances contained in a deed.

From the plaintiff's statement it appears that by deed of general warranty, dated October 14, 1899, L. M. Allen, the defendant, granted, bargained, sold, aliened, enfeoffed, released, conveyed and confirmed a certain lot or piece of ground situate in the Sixth Ward of the City of McKeesport to the plaintiff, Elizabeth Taylor, her heirs and assigns.

At the time of the execution and delivery of said deed there was assessed and unpaid taxes upon the land for the years 1897 and 1898, amounting, with costs, to $122.58. Liens were filed and the application of the plaintiff that the liens be stricken from the record was, after hearing, refused and on July 6, 1909, the plaintiff was forced to pay the said liens and tax claims. The defense is:

1. That the defendant was not the owner of the lot described in plaintiff's statement when the taxes mentioned and complained of were levied.

2. He was not notified of the filing of the liens until several years after judgment was entered against the plaintiff.

Taylor vs. Allen.

3. The plaintiff did not suffer an eviction, either actual or constructive. The averment that plaintiff was not the owner of the property when the taxes were assessed is vague and indefinite. The affidavit of defense does not set forth when defendant acquired title or how long his ownership had continued prior to the sale to plaintiff. It appears from the recital contained in the deed annexed to the plaintiff's statement that the defendant acquired title by sheriff's deed dated July 16, 1898.

The taxes had been assessed and were liens, though not all entered of record prior to the delivery of the deed to the plaintiff, and defendant does not deny that plaintiff requested him to assist in the effort made to strike off the liens.

By virtue of the act of 1715, the words "grant, bargain and sell," contained in a deed, are a covenant against incumbrances such as affect title. "The most usual incumbrances are liens of judgments, taxes, municipal assessments, mortgages." Lafferty vs. Milligan, 165 Pa., 534; Memmert vs. McKeen, 112 Pa., 320. The taxes were assessed prior to the delivery of the deed to plaintiff and were an incumbrance, which the defendant should have discharged and against which he covenanted.

"It does not appear a forced construction to say that the grantor suffered a charge on the land during his title for which as between him and the grantee he was bound to indemnify him;" Large vs. McClain, 4 Sadler, 243.

It was not necessary to plaintiff's right of action that she aver an actual eviction. The tax claims had been filed and though she contested and called upon the defendant to assist in the proceedings, judgment was entered against her. Her payment was not voluntary but made to prevent the costs of execution and sale upon a judgment against which neither she nor the defendant had a defense.

The plaintiff's claim includes an item for $20 attorney's fees, averred to have been incurred in an application to court praying that the tax liens be stricken off. It is not alleged that notice of the intention to make the application was given the defendant, or that he assented thereto, and the defendant expressly denies knowledge of the tax claims for "several years after the liens were filed." If a vendee appears and defends he is allowed counsel fees paid, provided he has given notice. Here the vendor denies that notice was given.

We are of opinion that plaintiff is entitled to judgment for his claim less the item of $20 for counsel fees.

April 11, 1914, rule absolute as to a part of plaintiff's claim, and it is ordered that judgment be entered in favor of the plaintiff and against the defendant for the sum of $102.53, with interest from July 16, 1909.

At the trial of a suit for damages due to negligence defendant offered a paper called a release, which was not under seal and did not show a consideration, and then offered to prove, as the consideration of the paper, payment by defendant of plaintiff's medical bills. The offers were objected to on the ground that the paper was not a legal release and the payments did not constitute valid consideration for a release. The objections were sustained.

Held: As a release the paper was void because it did not bear a seal and was without consideration.

That payment of medical expenses by the person causing the injuries is no consideration for a release, that person being liable for those expenses, and any other damages, which the injuries occasioned.

Verdict for plaintiff.

obstante veredicto denied.

New trial refused and motion for judgment non

Motion for judgment non obstante veredicto. No. 3591-1914. County Court, Allegheny County.

O. K. Eaton, for plaintiff.

G. R. Speer, for defendant.

DREW, J., June 22, 1915.-Motion ex parte defendant for judgment non obstante veredicto or a new trial.

Of the reasons assigned for a new trial only the first and second are worthy of consideration. The others were not discussed at the argument and are not supported by the facts or law of the case. They are therefore overruled without comment.

The real reasons assigned in support of the motion are, the Court erred (1) in refusing to admit in evidence a paper called a release, and (2) in refusing to admit in evidence certain bills paid by defendant for medical treatment given plaintiff, which were said to be the consideration for the release.

At the trial counsel for defendant exhibited to the Court a paper called a release, which was as follows:

"Pittsburgh, Pa., October 28th, 1914.

I, Rocco Sandier, do hereby release Dr. W. M. Campbell from all responsibility and blame for the injury received on October 26th, 1914, due to being struck by Dr. Campbell's automobile on West Carson Street. his

(Signed) ROCCO X SANDIER. mark

Witnesses:

THOMAS H. HARTER, M. D.

E. L. JONES, M. D."

The paper was marked "Exhibit B," and a tender made by defendant to prove payment of medical bills, all of which was objected to when defendant's counsel made this offer (page 68):

"By Mr. Speer: I offer to prove by the witness and by this paper that Dr. Campbell had prepared a release from all liability to the Doctor by reason of this accident, that in addition to the release as set forth the Doctor was to pay all the bills, doctor, hospital and ambulance, and that he was further to stay in the hospital until directed by the authorities to leave and then come to Dr. Campbell's office to be treated until such time as he was perfectly well, all of which was offered by the Doctor in consideration of the release."