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Cassidy et ux. v Scanlon et vir.

plaintiffs the lot above described, for $4,000.00, $100.00 on the signing of receipt, which was paid at the time, and the balance on delivery of a deed "on or before April 15, 1919, or as soon thereafter as the B. & O. R. R. Co. will grant a loan on the same, possession to be given on delivery of deed.”

3. The plaintiffs applied immediately to the B. & (). Railroad Company for a loan, which was refused. They thereupon applied to a Building and Loan Association, which granted the loan, subject to an examination of the title, on April 19, 1919.

4. On April 19, 1919, the plaintiffs paid to Thomas Fitzgerald, who was the agent by whom the sale had been effected for the defendants, $800.00, to be paid by him to the defendants. There is no evidence that Fitzgerald was ever authorized by the defendants to receive any of the purchase money for them, and in receiving it he was acting as agent for the plaintiffs, to pay it for them to the defendants.

5. On April 23, 1919, the plaintiffs advised Mrs. Scanlon, one of the defendants, that a loan had been granted by the Building and Loan Association and would be ready to be paid in a few days.

6 On Alpril 28, the defendants notified the agent that they couldn't wait any longer for the money, and would have to have the money and have the matter closed up.

7. May first is the ordinary moving day in the City of Pittsburgh, and it was very material to the defendants to know a reasonable time before May first whether or not the deal was to be carried out, and to have it carried out so that she could procure a house to move into.

8. About the 12th or 15th of May the Building and Loan Association approved the title, and demand was then made upon the defendants to make a deed and deliver up possession of the house, which they refused to do. This bill was filed on June 10, 1919, and it was brought to trial on February 16, 1920.

CONCLUSIONS OF LAW.

as soon

1. The time of performance was fixed as April 15, 1919, or thereafter as the Railroad would grant a loan. As the Railroad Company refused to grant a loan, the plaintiffs were entitled to a reasonable time, under the circumstances, to make some other provision for the money.

2. We are of opinion that under the circumstances the delay, which actually took place, of about one month, within which was the moving day usual in the City of Pittsburgh, and considering the nature of the property and uses to which it was to be put, was greater than the plaintiffs were entitled to, and notice having been given to their agent on the 28th of April that a longer delay would not be allowed, we are of opinion that the plaintiffs are not entitled to specific performance of the contract, although they may be entitled to pursue their remedy at law against the defendants.

3. The bill is therefore dismissed, with costs to be paid by the plaintiffs, without prejudice to the plaintiffs' claims at law.

Stonecipher v Keane. Ejectment Unrecorded Agreement Possession

Mortgage-Sheriff's Sale-Purchaser-Title.

Subsequent Deed

In ejectment, the title of one who held under one who had acquired title by a recorded deed was held to be superior to one who was in possession under a prior unrecorded agreement to sell. An innocent purchaser of real estate for value without notice of an existing but unrecorded agreement would have good title.

An unrecorded agreement for the sale of real estate and under which the grantee went into possession immediately would not convey title as against cne who subsequently purchased the same property and recorded his deed, without notice of the existing agreement.

Ejectment. Motions for Judgment N. 0. V. and for New Trial. No. 1674 April Term, 1918. C. P. Allegheny County.

Watson & Freeman and David Stonecipher, for plaintiff.
Thomas L. Kane and Charles A. Poth, for defendant.

Before SWEARINGEN, KLINE and CARPENTER, JJ. CARPENTER, J., March 24, 1920.–Counsel agree that on and prior to November 24, 1903, Anthony Platz was the owner in fee of the land, the title to which is in controversy; that on said date he and his wife conveyed same to Carrie C. Wilson, wife of Harry E. Wilson, and that the deed was recorded December 3, 1903.

The execution and delivery of subsequent deeds for the premises, and of a mortgage thereon to plaintiff, is admitted. It is admitted that plaintiff caused judgment to be entered on the bond accompanying the mortgage and that the premises were sold by the Sheriff and deed delivered to plaintiff.

Admitting that the record in evidence shows an unbroken chain of title to the premises in plaintiff, defendant claims priority in title, and in support of his claim pleads a written, unrecorded agreement, dated August 30, 1905, in and by which Carrie C. Wilson and her husband “agree to sell and convey to William Keane" (defendant) a lot 20 by 100 feet on Coal Street; further identifying the premises as "part of that certain tract of land which A. Platz by deed dated November 24, 1903, and recorded in deed book vol. 1295, page 397, granted and conveyed to said Carrie C. Wilson.”

The consideration recited in the agreement is $1,250 payable as follows: $250 on signing the agreement and $15 per month thereafter until the full purchase price, with interest, is paid; payments to begin October 1, 1905, and possession to be delivered September 1, 1905. The agreement further provided that in case of default in payment of any instalment of principal or interest the whole debt and interest should, at the option of the first parties, become due and payable, and contained a warrant of attorney to confess judgment, etc. The record title on which plaintiff rests his claim of title is as follows:

-AAnthony Platz et ux. to Carrie C. Wilson, by deed dated November 24, 1903, recorded December 3, 1903, in Deed Book 1295, page 397.

-BCarrie C. Wilson and her husband to Archibald B. McGrew, by deed dated December 16, 1907, recorded March 22, 1910, in Deed Book, 1649, page 559.

Stonecipher v Keane.

-CArchibald B. McGrew et ux. to Marie E. Kelly (single) by deed dated November 20, 1913, recorded November 21, 1913, in Deed Book 1783, page 602.

-DMortgage from Marie E. Kelly to David Stonecipher, dated November 20, 1913, recorded November 21, 1913, in mortgage book 1531, page 372.

-EJudgment confessed on bond accompanying the mortgage above recited, at D. S. B. No. 90 April Session, 1918.

-FFi. Fa. sur above recited judgment to No. 102 April Term, 1918, Sheriff's Sale and deed pursuant thereto to David Stonecipher, plaintiff, said deed being recorded in Deed Book 1858, page 576.

Defendant claims title as follows:

-ADeed from Anthony Platz et ux. to Carrie C. Wilson, being same recited by plaintiff.

-BArticles of Agreement dated August 30, 1905, not recorded but set out at length in abstract, in and by which Carrie C. Wilson and her husband "agree to sell and convey to William Keane" (defendant) a lot 20 by 100 feet on Coal Street, further identifying the lot as "nart of that certain tract of land which A. Platz by deed dated November 24, 1903, and recorded in Deed Book 1295, page 397, granted and conveyed to Carrie C. Wilso:1,"

-CAverment of possession taken pursuant to agreement September 1, 1905, and continued until on or about June, 1914, when, it is alleged, Marie E. Kelly (now Marie E. Wilso.1) unlawfully entered and dispossessed defendant.

--DEjectment by William Keane against Marie E. Wilson at No. 821 October Term, 1914, for a larger tract of land embracing the land here in controversy. Verdict for plaintiff November 22, 1916, and judgment thereon November 9, 1917, pursuant to which William Keane re-entered, and is still in possession of, said premises.

Archibald B. McGrew, who purchased from Carrie C. Wilson, December 16, 1907, died in April, 1919.

At the date of the agreement between the Wilsons and Keane, the premises were occupied by James Lawler.

The testimony of Lawler and his wife does not make clear the date of their entry. Mrs. Lawler testified that she had lived on Coal Street fourteen years; that she had lived in two houses, and that she lived in "Keane's house" (meaning the house in controversy) about eight years. Mr. Lawler testified he lived in "No. 4, Mr. Keane's house" for ten or twelve years. He was unable to state when he went into possession, but was there in 1913. When asked about how many years prior to 1913 he had ‘recognized' Keane as the owner he replied

Stonecipher v Keane.

"I guess three or four years, probably more—as the landlord.”

He was then asked, “You were the tenant in possession from about 1994 or 1905, until 1914?” and replied, “Yes, sir."

There is no doubt respecting the possession by Mr. Lawler and his family in 1905 when the agreement of August 30th was made, nor that the record title was then in Carrie C. Wilson. Objections to the offer of defendant to put in evidence this agreement were made by plaintiff's attorney and sustained, but subsequently proof of its execution was offered and the agreement admitted. An offer to prove certain conversations between Mrs. Lawler and Mr. Keane in 1905 and that the Lawlers "recognized William Keane as the owner" was excluded, but Mr. Lawler was permitted to testify respecting certain alleged conversations with Mr. Stonecipher in 1913, before the sale to Miss Kelly was made and the mortgage to Storecipher was executed. The testimony did not sustain the offer to prove a conversation in which "Mr. Lawler told Mr. Stonecipher that the defendant Keane was the owner of the property."

Summarized, we have Lawler in possession as tenant in 1905, but no evidence that he knew who owned the property when he went into possession; payment of rent to Bissett; continuous occupation by Lawler after the agreement of Carrie E. Wilson and her husband to sell and convey to Keane; the sale and conveyance by Carrie C. Wilson and her husband to McGrew, and by McGrew and wife to Marie E. Kelly. On cross-examination Mr. Lawler said he paid $10 per month rent and that after Miss Kelly (now Mrs. J. H. Wilson) bought the property he signed a lease and paid rest to her husband.

In the light of the facts exhibits in the testimony, the controlling question is–Did Archibald B. McGrew acquire a title superior to that of Keane? As above stated, it is admitted that Carrie C. Wilson was the owner of the land when she entered into the agreement of August 30, 1905. There is 30 averment and no proof of payment of any part of the purchase price agreed upon. The agreement recites a promise to pay but does not acknowledge payment.

The tenant, Lawler, then is possession rented from an agent. He says he 'recognized Keane as his landlord and once offered to pay him the rent but was told to pay the agent. There is no evidence that any rent was paid to Keane personally, or through Bissett, the agent, or that a new lease was executed after August 30, 1905. If McGrew was as innocent purchaser for value, without notice of the agreement between his grantors and Keane, subsequent notice thereof to him or to his grantee would not prejudice their rights. That the record exhibited a good title in McGrew's grantor's is admitted.

We have Lawler in possession as tenant of the admitted owner prior to and when the agreement of August 30, 1905, was executed; possession continued until after the conveyance to McGrew and the conveyance by him to Marie E. Kelly.

The fact that Stonecipher, the plaintiff here, was attorney and was called as a witness in litigation respecting the title to the land in conitroversy, which arose between his mortgagor and Keane, the defendant, subsequent to the acquisition of whatever right in, or title to, the premises, the plaintiff has, did not make him a party to that action.

ORDER. And sow, March 24, 1920, after argument before the Court in banc, and due consideration of the questions discussed, new trial is refused, the motion for judgment non obstante veredicto overruled, and judgment directed to be entered for the plaintiff on payment of the verdict fee.

United States ex rel. Yonick et al. v Briggs.

- Jurisdiction

Federal

Habeas Corpus Juvenile Court Delinquent

Courts-Trial by Jury-Constitution.

The Act of Assembly of Pennsylvania giving authority to a Judge of the Juvenile Court to commit a child without trial by jury, does not violate paragraph 53 of Section 2 of the Constitution of the United States, which provides that "The trial of all crimes, except in cases of impeachment, shall be by jury.”

The Acts of Assembly creating the Juvenile Court of Allegheny County, Pennsylvania, are not unconstitutional in that they take away the right of the people to be secure in their persons, houses, etc. The Juvenile Court has jurisdiction of children under the age of sixteen years, and having lawfully acquired jurisdiction, the minor is not entitled to a trial by jury on reaching the age of sixteen, he, at that time being in the custody of the Court as a delinquent.

Under the Juvenile Court Act of Pennsylvania, a party who feels aggrieved by the judgment of the Court may have an appeal to the Superior Court of Pennsylvania. Under the liberal procedure in habeas corpus, a person in custody pursuant to the judgment of the State Court, may have judicial inquiry in the Federal Courts into the very truth and substance of the causes of his detention, and if necessary, to look beyond the record sufficiently to test the jurisdiction of the Court under whose order he is restrained. In other words, the record can be attacked if in any way it fails to set forth the truth.

Habeas Corpus. No. 1 November Term, 1920. District Court of the United States, Western District of Pennsylvania.

E. L. Kearns and George P. Henning, for petitioner.
E. Z. Smith and John D. Evans, for respondent.

THOMSON, J., June 19, 1920.—The writ in this case was issued on the petition of Mary Yonick, a citizen of the State of Galacia, now a resident of Pittsburgh, which avers that her minor son, George Yonick, who was born in Pittsburgh, Pennsylvania, is now of the age of sixteen years, and that he was committed on April 15, 1918, to the care and custody of Franklin H. Briggs, superintendent of Thorn Hill School, by commitment of a Judge of the County Court of Allegheny County, claiming to have jurisdiction as a Juvenile Court, the commitment setting forth that the said George Yonick was a delinquent. The petition alleges that he is unlawfully restrained, held and detained by the superintendent of said School, and his personal liberty taken away, without due process of law, and that said child was not a delinquent at the time of his commitment. That the Act of Assembly of Pennsylvania giving authority to a Judge of the Juvenile Court to commit a child without trial by jury, violates paragraph 52 of Section 2 of the Constitution of the United States, which provides that “The trial of all crimes, except in cases of impeachment, shall be by jury;" and that the Acts of Assembly creating the Juvenile Court of Allegheny County, Pennsylvania, are unconstitutional in that they take away the right of the people to be secure in their persons, houses, etc. That the Juvenile Court has jurisdiction only of children under the age of sixteen years, and that now that the said minor has arrived at the age of sixteen years, he entitled to a trial by jury.

The Acts of April 23, 1903, P. L. 74, "defining the powers of the several courts of Quarter Sessions of the Peace, within this Commonwealth, with reference to the care, treatment and control of dependent, neglected, incorrigible and delinquent children, under the age of sixteen years," and providing for the means in which such power may be exercised, was before the Superior Court, and by appeal to the Supreme Court of Pennsylvania, in the case of Commonwealth v Fisher, 27 Supr. Ct., 175, and 213 Pa. State, p. 48. In that case the constitutionality of the Act was attacked from every quarter, and its legality was sustained in both appellate

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