cause they create perpetuities; and that, inasmuch as valuable considerations were paid, the grantees took the beneficial interest, and there could be no reverter to the heirs of Sinclair or Carey. We do not deem it necessary or proper to decide that question, as the parties to the deeds are not represented in this case. The appellant further contends, however, that it is wholly immaterial whether that position be correct or not, as it has acquired title, by possession, adverse to the trustees, their survivors and heirs, as well as to all other persons, and that it has never recognized the right of any of them to any part of this property. It may be true that the appellant has a perfectly good title by adverse possession to this lot, but the question is whether it has been so established by the evidence as to justify us in decreeing a specific performance of the contract. No deed or other instrument to it was offered, and John H. Smith, who had been a trustee for 30 years, testified he had no knowledge of any deed from any one to the corporation. He also said that in 1866 he was made secretary of the board, and the deed from Carey and the first one from Sinclair were placed in his custody: "and, being the only deeds that I had ever seen or knew anything about when we applied for the loan, we passed them over as descriptive of the property." And on cross-examination he said: "When I was elected to the position of secretary, these deeds, in common with the insurance and such other papers of that class, were turned over to me to hold, my being the official organ upon the part of the trustees, without any instructions on the line of the question." The Reverend W. M. Carroll, who is the pastor of the church and president of the corporation, also testified that he had no knowledge of any deeds from anybody to the corporation, and that the two deeds above alluded to were held by the board of trustees as the title papers of the church. They were the only witnesses introduced. The evidence does not show under what circumstances the corporation, as such, entered upon the use of the property, nor does it show when any of the trustees named in the deeds died, whether any successors were ever appointed, or what relations, if any, they bore to the corporation or to the property. The evidence not only does not show that the corporation did not enter with the consent of the trustees or their successors, but the inference might be drawn from it that they did. It is true that the witnesses say they never paid any rent, and that the possession and occupation of the property in question by the corporation was not under permission of anybody that they knew of, but under a claim of right; but they do not pretend to say how the corporation originally got possession. If it be assumed that the trustees named in the deeds took the legal title to the lot, and if originally the corporation took possession by their

permission, there is not sufficient evidence to show that it afterwards held adversely to them, so as to affect the legal title. On the contrary, the witnesses say that the board of trustees of the corporation held those two deeds as its title papers, and they show on their face that the legal title was not in the corporation. If, in point of fact, it went into possession by permission of the holders of the legal title, the presumption is that its possession continued in that way, unless there be some evidence of holding adversely to them in such a way as would amount to an ouster. Colvin v. Warford, 20 Md. 357; Campbell v. Shipley, 41 Md. 81; Ehrman v. Mayer, 57 Md. 612. The possession of the corporation is not necessarily inconsistent with the title of those grantees. "To give the character of adverse to a holding, there must be some positive act, and not merely a failure to recognize the rights of trustee." Matthews v. Ward, 10 Gill & J. 457.

If such an adverse holding cannot be established against those trustees or their successors, then it is manifest that the appellee cannot acquire such a title as the contract contemplates. The legal title, at least, would be outstanding, and, in the event of a default in the mortgage, it would be difficult, if not impossible, to sell the property for its real value. Then, again, if it should be decided that there was or could be a reverter to the heirs of Sinclair and Carey in the event of a diversion of the property from the uses to which it is devoted by the deeds, it might be held that there had not yet been such diversion, and the statute of limitations had not commenced to run against the heirs of those grantors. The Carey deed, for example, contemplates the use of the part of the lot conveyed by it (which is the greater and most valuable part) for religious as well as educational purposes. Thus far, according to the evidence, the lot has not been used for purposes forbidden by the deed, but for such as it seems to expressly authorize. It is true that it does not appear to have been used by a school for 30 years or more; but, as long as it is used for either of the purposes in the deed, the heirs of Carey could not be said to have the right to enter, merely because it is no longer used for both. If such be the status of the property, and it should be hereafter diverted by the appellee or those claiming under him, then, for the first time, could the heirs of Carey enter or claim the property on that account; and hence the statute could not be said to have yet commenced to run against them. Of course, this is all predicated on the assumption that the appellant has not held adversely to the trustees and their successors, for we do not mean to be understood as saying that this corporation could not hold this property in such way as to acquire title by adversary possession against both grantors and grantees of those deeds and those claiming under them, but,

to do so, its possession must be inconsistent with the title of the grantees acquired by the deeds.

We regret that we do not feel justified in construing the deeds now so as to dispose of such questions as are presented on the face of them. But we do not think their provisions, especially those in the Carey deed, are so free and clear from doubt as would justify us in passing on them when those who might be affected by our conclusions are not before us; particularly as our determination would not be binding on them "otherwise than as a mere precedent, affording persuasive reason to the same conclusion," as was said in Kelso v. Stigar, 75 Md. 390, 24 Atl. 18, of a previous decision in a case in which the persons interested had not been made parties. This case is unlike that of Gump v. Sibley, 79 Md. 165, 28 Atl. 977, cited by appellant. Sibley had some kind of a record title, and the court had before it such facts as enabled it to determine when and how far the statute of limitations took effect; and so, also, in Lurman v. Hubner, 75 Md. 268, 23 Atl. 646, and other cases referred to. But we are not sufficiently informed by the evidence as to the character of possession held by the appellant, or the residence and status of those who might make claim to this property to require the appellee to make the loan. We do not determine that the appellant has not acquired a good title by adverse possession, but only that it is not free from reasonable doubt, so far as the evidence in the record discloses. "A court of equity will not compel a purchaser to take a title which is not free from reasonable doubt, and which might, in reasonable probability, expose him to the hazards of litigation." Emmert v. Stouffer, 64 Md 554, 3 Atl. 293, and 6 Atl. 177. And we think that rule should be applied with emphasis when the proposed vendor or mortgagor, as in this case, has no record title whatever. This court, in Gill v. Wells, 59 Md. 494, quoted at length from Fry on Specific Performance of Contracts, a part of which we will repeat as particularly applicable to this case. That author says:

"It must be remembered that the decree of the court in such a suit is a judgment in personam, and not in rem; that it binds only those who are parties to the suit and those claiming under them, and in no way decides the question in issue as against the rest of the world; and that doubts on the title of an estate are often questions liable to be discussed between the owner of the estate and some third person not before the court, and therefore not bound by its decision. If, therefore, there be any reasonable chance that some third person may raise a question against the owner of the estate after the completion of the contract, the court considers this to be a circumstance which renders the bargain a hard one for the purchaser, and one which, in the exercise of its discretion, it will not compel him to execute.

Though every title must in itself be either good or bad, there must be many titles which the court cannot pronounce with certainty to belong to either of these categories, in the absence of the parties interested in supporting both alternatives, and without having heard the evidence they might have to produce, and the arguments they might be able to urge; and it is in the absence of these parties that the question is generally agitated in suits for specific performance. The court, when fully informed, must know whether a title be good or bad; when partially informed, it often may and ought to doubt." A prudent lawyer would certainly hesitate to advise his client to accept this title on the evidence in the record, and we cannot say it is so free from reasonable doubt as to authorize us to compel the appellee to accept it.

We are of the opinion that the appellee is entitled to an affirmance of the decree below dismissing the bill, and, as we have reached that conclusion without taking into consideration the evidence excepted to, we have not thought it necessary to discuss it. Decree affirmed, with costs.

THOMAS et al. v. JOHNSON. (Supreme Court of Pennsylvania. May 18, 1896.)

BILL OF EXCEPTIONS-REVIEW.

A ruling on a charge cannot be reviewed, there being no bill of exceptions signed by the judge, but only the stenographer's notes, mentioning objections, but showing no exceptions allowed by the judge.

Appeal from court of common pleas, Philadelphia county.

Action by Charles W. Thomas and another, trading as Thomas & Mercer, to the use of William Duror, assignee of Thomas & Mercer, against John B. F. Johnson. Judgment for plaintiffs. Defendant appeals. Appeal dismissed.

B. F. Fisher, for appellant. Webster A. Melcher, for appellees.

MITCHELL, J. This case appears to have been unlucky throughout, especially in that, by an inadvertence of counsel, an appeal was taken in another branch of the controversy between the same parties, but of a different number, and, before the mistake was corrected, costs of execution had been incurred far exceeding the amount involved in this judgment. To cap the series of misfortunes, it now appears that there is no bill of excep tions. The stenographer's notes are filed, but even these, though they make mention of objections, do not show any exceptions allowed by the judge, and no bill of exceptions has been signed by him. Without this, there is nothing on which this court can base a review of the rulings or the charge. We have gone over this subject so frequently of late

that it is only necessary to refer to Com. v. Arnold, 161 Pa. St. 327, 29 Atl. 270, and Pool v. White, 171 Pa. St. 500, 33 Atl. 879. Appeal quashed at the costs of the appellant.

BLIZZARD v. BOROUGH OF DANVILLE. (Supreme Court of Pennsylvania. May 18, 1896.)

MUNICIPAL CORPORATIONS-OPEN SEWER-NEGLIGENCE.

Where a municipality adopts and uses a stream as an open sewer, and fails to keep its channel open and to remove accumulations which obstruct the flow of water and throw it out of its banks upon the adjoining land, the landowner has a right of action for such injury, though the stream has been used as a sewer for 30 years.

Appeal from court of common pleas, Montour county.

Action by W. H. J. Blizzard against the borough of Danville to recover damages for injury to property by the maintenance of a sewer. A compulsory nonsuit was entered, and from an order discharging a rule to show cause why such nonsuit should not be stricken off, plaintiff appeals. Reversed.

James Scarlet and H. M. Hinckley, for appellant. R. S. Ammerman and Grant Herring, for appellee.

WILLIAMS, J. On the trial of this case it was made to appear that the borough of Danville began about 1860 to make use of a natural stream known as Blizzard's Run" as a part of its general system of drainage. By means of a covered sewer and a paved alley, the surface drainage of nearly 20 acres has been turned into this stream, and one or more cellar drains have been connected with it. The stream thus became an open sewer, adopted and used as such by the borough authorities; and the duty of the borough to keep its channel open, and to remove accumulations of filth, ashes, or other material that obstructed the flow of the water and threw it out of its banks upon the adjoining lot owners was as clear as though the sewer had been constructed, instead of having been adopted, by the action of the municipal authorities. The right of action by a lot owner grows, not out of the adoption of the stream as a sewer, which was an act wholly within the power of the municipality, but out of its negligence in not keeping the sewer in at least as good condition as it found it. There is therefore no question of prescriptive right in this case. There can be no prescriptive right to neglect so plain a municipal duty. If the borough had entered upon some portion of the plaintiff's lot in the construction of a sewer in 1860, the right of action for that trespass would be at this time effectually barred by the lapse of time. But when a sewer, built, it may be, 100 or more years ago, gets into bad repair, the liability of the municipality for the injury inflicted

upon lot owners arises when the injury oc curs, and may be sued for within 6 years thereafter. The judgment of nonsuit proceeded, therefore, upon an erroneous idea of the relation of the parties and of the plaintiff's cause of action. We are inclined to think enough appears in the plaintiff's declaration to show that the injury complained of is charged to the failure on the part of the municipality to clean out and keep open the channel of the stream, so as in ordinary floods to afford a passage for its water as freely as the natural channel did before the action of 1860 was taken by the borough. This is the measure of duty which the municipality owes the plaintiff, and, if an amendment is needed in order to place the plaintiff's claim fully on the record, it can easily be made. But upon the evidence this case presented a question of fact for the jury. That was a question of negligence on the part of the municipality. If the borough has simply drained into this stream, and then given no attention to the effect of its action on the stream or on lot holders along its banks, and the stream has been choked, or its channel obstructed, in consequence of the character or quantity of the material drained into it, and injury has resulted to the plaintiff, the negligence of the borough authorities in not removing such obstruction and keeping the channel open is the true ground on which the plaintiff's right to recover must rest. Was the stream obstructed or filled up as the result of the adoption of this stream as an open sewer, and the drainage into it? Did the borough neglect to keep the channel open, and permit the overflow and accumulations complained of? Was the plaintiff injured in consequence of this negligence? If the jury so found, their only remaining duty was the ascertainment of his damages. The judgment of nonsuit entered in this case is now reversed, and set aside, and a venire facias de novo awarded.

GIBBONS v. GIBBONS et al. (Supreme Court of Pennsylvania. May 18, 1896.)

INSANITY-SUFFICIENCY OF EVIDENCE.

In an action to set aside an assignment of a life insurance policy it appeared that plaintiff, becoming insane, was placed in an asylum, remaining two months. The physician in charge testified that she was of sound mind when discharged, and several lay witnesses testified that after she came from the asylum she was able to take care of her house, do her own shopping, etc. The nurse at the asylum testified that she was not rational when discharged, and the physician who attended her for several months thereafter gave evidence to the effect that she was not rational during that time. There was lay testimony to the same effect. A few months after her discharge her husband took her to the agent of the insurance company, and, after he had executed the assignment, she signed it at his request, without inquiry on her part or explanation on his. Held, that the find

ing that plaintiff had not mental capacity to make the assignment would not be disturbed.

Appeal from court of common pleas, Lackawanna county.

Action by Teresa Gibbons against Patrick F. Gibbons, guardian of the minor children of John T. Gibbons, deceased, and the Northwestern Mutual Life Insurance Company, to set aside an assignment of a life insurance policy. There was a decree for plaintiff, and defendants appeal. Affirmed.

The plaintiff, Teresa Gibbons, was the wife of John T. Gibbons. Some time in January, 1890, plaintiff was taken sick with the grippe, as a result of which her mind became affected. In the early part of March her physician advised that she be sent to the insane asylum. In accordance with this advice, she was, on March 11th, taken to the asylum for treatment, remaining in the institution about two months. On her discharge from the asylum in May the physician in charge declared that she was fully recovered. She returned home, and from that time it appears she was able to take care of her house, and to transact all the necessary business connected with the housekeeping and the care of her family. Some time prior to this, John T. Gibbons, her husband, had taken out a policy on his life for $2,000, in the Northwestern Mutual Life Insurance Company, which policy was made payable to his wife. After plaintiff's return from the asylum, on several occasions John T. Gibbons asked the agent of the insurance company whether he could assign the policy to his children without the knowledge of his wife, but was informed that it could not be done. Finally, on August 4, 1890, plaintiff was taken to the office of the agent by her husband, and at his request, without any inquiry on her part or without his making any explanation of the contents of the paper, she signed the assignment of the policy conveying her interest therein to her children. John T. Gibbons died in September, 1893, and in December, 1893, plaintiff filed her bill in equity, praying the court to decree her assignment fraudulent and void on the ground that she was not of sound mind at the time she made the assignment. On the hearing before the master, a physician who had treated the plaintiff from the time she was discharged from the asylum until the death of her husband testified that at no time during the summer of 1890 was she of sound mind. The nurse who had charge of her at the asylum testified that she was not of sound mind when discharged, and several lay witnesses gave evidence to the same effect. The master found that the plaintiff was insane in the spring of 1890, that she was not restored when she left the asylum in May, nor was she fully restored on the 4th of August, 1890, at the time the assignment of the policy was executed, and recommended that the assignment be declared null and

void. The conclusions of the master were adopted by the court, and decree entered in accordance therewith.

M. A. McGinley and W. W. Watson, for appellant. A. D. Dean, for appellee.

WILLIAMS, J. John T. Gibbons was, in 1888, when the policy of life insurance now in controversy was obtained, the husband of Teresa Gibbons, and so continued till the time of his death, in 1893. The policy was for $2,000, and was made payable to the wife. Should it now be paid to her? The defendant contends that it should be paid to him, as the guardian of the children of John T. and Teresa Gibbons, because in 1890 she joined her husband in a written assignment of the policy to their three children Annie, Maggie, and Alexander. Frank was born after the assignment, and had no title under it. The plaintiff's position is that the assignment was not her intelligent act, and that it does not bind her. The testimony shows that she became insane in the spring of 1890, and was placed in the insane department of the Hillside Home, near Scranton, for care and treatment. At the end of about two months she was sufficiently restored to be allowed to return home. A short time after her return, her husband took her to the office of the insurance agent through whom the policy had been obtained, and had the assignment of the policy prepared, which, at his request, without any inquiry on her part or explanation on his, she signed. She now asks that this assignment be canceled, alleging that she did not know its contents, and did not consciously execute it. The case turns, therefore, wholly upon the question of her restoration to sanity at the time the policy was assigned to the three children. The master heard the evidence upon this question at length, and found the fact to be that the plaintiff was not fully restored to health, nor to the possession of her mental powers, when she was taken by her husband from the Hillside Home to her own home in May, 1890, but was at that time incapable of transacting business. He further finds that "the plaintiff, at the time of the execution of said assignment, had not the requisite capacity for the transaction of business, and was led to the execution of the assignment by the undue influence of her husband, John T. Gibbons." This question of the mental condition of Mrs. Gibbons when the assignment was made was considered by the court below on exceptions to the master's report, and the learned judge concurred in the conclusions reached by the master. It is well settled that findings so made and concurred in will be disturbed only for plain error. question is not whether we would have found the facts in the same manner from the evidence as it appears to us, but whether the finding is plainly erroneous (Stocker v. Hutter, 134 Pa. St. 19, 19 Atl. 427, 566); and this

The

rule is equally applicable when the question relates to the mental condition of a grantor (Doran v. McConlogue, 150 Pa. St. 98, 24 Atl. 357). It does not matter that the evidence was conflicting. The master, having had the witnesses before him, is better qualified to judge of their credibility and the value of their testimony. Brotherton V. Reynolds, 164 Pa. St. 134, 30 Atl. 234. Accepting the facts as found for us by the master, and concurred in upon review by the judge sitting as a chancellor, the legal conclusion on which the decree rests follows logically. If the plaintiff was incapacitated for the transaction of business by reason of her mental condition, and executed the assignment under the influence of her husband, and not because of an intelligent knowledge or purpose, she was not bound by it. The assignments of error are overruled, and the decree affirmed; the costs to be paid by the appellee.

HUMMEL et al. v. CUMBERLAND VAL. R. CO.

(Supreme Court of Pennsylvania. May 18, 1896.)

EMINENT DOMAIN-DAMAGES-ABANDONMENT

-NONUSER.

1. Where a railroad company appropriates land over which it erects a bridge for its road, and pays full compensation therefor, it cannot be compelled to make a second payment to the successors of the original owner for thereafter filling up the land under the bridge within the right of way.

2. No abandonment of land appropriated by a railroad for a right of way will be presumed from a nonuser at the time of taking.

Appeal from court of common pleas, Cumberland county.

Action by R. H. Hummel and others against the Cumberland Valley Railroad Company to recover damages for trespass. From a judgment for defendant, plaintiff's appeal. Affirmed.

J. W. Wetzel and A. G. Miller, for appellants. John Hays, W. F. Sadler, and E. B. Watts, for appellee.

PER CURIAM. It was as far back as the year 1839 that the Cumberland Valley Railroad Company adjusted, settled, and paid to the former owners of the land over which the bridge or viaduct in question was erected "all damages occasioned by the construction or use of the said road and the bridge over the Susquehanna so far as the same runs through their lands." For the occupancy and use of the land of the then owners for the purposes of the railroad, the defendant paid them $2,250. It is not and it cannot be questioned that this was full compensation for all the acts done by the railroad company in taking the land and building the road over it on piers then erected. The present proceeding is an effort to compel the same company to make a second

payment of damages to the present owners, who have succeeded to the title of the owners at that day. The excuse for such an extraordinary attempt is that the company has filled up the land under the bridge and between the piers, and this, it is claimed, gives rise to another right to have damages for the mere user by the company, for their own purposes, of the same land for which full compensation was paid almost 60 years ago. It is only necessary to say that this filling occupies only land under the bridge, between the piers, and within the width of the lawful right of way of all railroads. The use of the ground is such as is entirely within the discretion of the company, and it is not of any moment that this particular use was not made at any earlier date. The lack of an exact description of the boundaries of the land taken is of no consequence so long as it does not exceed the width allowed by law. There is no abandonment of land which has been taken to be presumed from a nonuser at the time of taking. All these principles have been definitely and repeatedly ruled by this court, and they are entirely applicable to the present contention. The more recent cases in which they have been declared are Railroad Co. v. Obert, 109 Pa. St. 193, 1 Atl. 398; Railway Co. v. Peet, 152 Pa. St. 488, 25 Atl. 612; Pittsburgh Junction R. Co.'s Appeal, 122 Pa. St. 530, 6 Atl. 564; Philadelphia v. Ward, 174 Pa. St. 45, 34 Atl. 458 It is not necessary to repeat what was said in those cases. It is enough to know that they furnish a complete answer to the claim of the plaintiffs in the present case. Judgment affirmed.

FIDELITY INSURANCE, TRUST & SAFE-DEPOSIT CO. et al. v. FRIDENBERG et al. (Supreme Court of Pennsylvania. May 18, 1896.)

DEED-RESERVATIONS-FORFEITURE-LACHES.

1. Forfeiture of land for violation of condition against erection of buildings cannot be asserted because of fire escapes put on a building under the police power of the state and city.

2. Ejectment to enforce a forfeiture of land for erection of a building in violation of a condition of deed cannot be maintained after a suit in equity to enforce the condition by removal of the buildings is dismissed for laches.

Appeal from court of common pleas, Philadelphia county.

Ejectment by the Fidelity Insurance, Trust & Safe-Deposit Company and others, trustees under the will of Henry C. Gibson, deceased, against Samuel M. Fridenberg and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

Harry G. Clay and Crawford, Loughlin & Dallas, for appellants. F. Carroll Brewster, for appellees.

DEAN, J. The land at the southwest corner of Ninth and Chestnut streets, Phila