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(108 A.)

land it claims to own, and to have removed a [November 17, 1896, and recorded in Book W, cloud to its title to the same land. The de- page 211, Brattleboro Land Records." fendant admits by his answer that he intends to erect a building on the land in controversy, but denies that the plaintiff owns the same, and alleges that he owns it. A replication was filed, and the case was heard on its merits by a chancellor. From the findings made by him, it appears that the land of the plaintiff is immediately west of the land of the defendant. Both lots were formerly owned by Goodhue, and constituted a single tract, described in the deed under which he acquired title as follows:

"Also one other tract of land called the ‘garden' lying on the west side of said road, beginning at a white oak tree at the corner of the road leading to the tanyard; from thence westerly on said road about 9 rods to the corner of Elihue Hotchkiss' garden; thence northerly on the east line of said garden to Samuel Elliott's south line at the foot of the hill; thence easterly on said Elliott's line to the public road; thence southerly on said road to the place of beginning, containing about 71 rods of land."

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The public road mentioned in this deed is Main street, and bounds the tract on the east. The road leading to the tanyard is Flat street, and bounds the tract on the south. In 1835 Goodhue sold a strip off the west end of this lot, 40 feet wide, extending entirely across the lot. This is the land owned by the plaintiff. Goodhue sold the south part of the land he still owned to one Ray, in 1868. This tract is known as the "Ray" lot, and is now owned by the defendant. In 1911 the defendant acquired title from the Judge estate to the north part of the land owned by Goodhue after he sold the strip off the west end. This tract is referred to as the

"Judge property." It is the line between this part of the defendant's land and the land of the plaintiff that is in controversy. At the time this suit was commenced, there was a building on the plaintiff's land and was a building on the plaintiff's land and one on the Ray lot, about 12 feet apart, both fronting on Flat street. The plaintiff claims fronting on Flat street. The plaintiff claims that its east line is the face of the west side of the building on the Ray lot, and that it continues northerly, on the same course, from that building, to the west line of land owned by Lucy Cox, which is located north of the Judge property, thus forming the west bound of the Judge lot. The defendant claims that the west bound of the Judge lot is correctly described in his deed thereof as fol

lows:

"Bounded north by the land of Lucy Cox, east by Main street; south by land of Herbert G. Barber, and west by a line two feet easterly of the foundation wall of the building of the Valley Grain Company and parallel with said wall. And being all and the same premises conveyed to the deceased [Thomas Judge] by Wells Goodhue and Francis Goodhue by deed dated

108 A.-26

In the deed therein referred to, this land is described as bounded on the west by land of William Holding, then owner of the plaintiff's land. The defendant insists that under this deed his land extends to the land formerly owned by Holding, and that his west line is about 2 feet west of the east wall of the plaintiff's building. The Valley Grain Company building, mentioned in the Barber deed, is the building on the plaintiff's land already mentioned.

[1] During the hearing of the case on the merits, the plaintiff took exceptions to the rulings of the chancellor on questions relating to the admissibility of evidence, but the record does not show that exceptions were taken to the findings because of such rulings, and therefore these questions are not before us. G. L. 1520; Vermont Marble Co. v. Eastman et al., 91 Vt. 425, 101 Atl. 151; Osha v. Higgins, 90 Vt. 130, 96 Atl. 700; Hooker, Corser & Mitchell v. Hooker, 89 Vt. 383, 95

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The use of the transcript is thus limited to the examination of the questions raised during the hearing on the merits, and it is not here for the purpose of testing the exceptions to the findings. Fraser v. Nerney et al., 89 Vt. 257, 95 Atl. 501; County of Bennington v. Manchester, 87 Vt. 555, 90 Atl. 502; Thompson-Starrett Co. v. Ellis Granite Co., 86 Vt. 282, 84 Atl. 1017; Roach v. Caldbeck, 64 Vt. 593, 24 Atl. 989; Lynch, Adm'r, v. C. Vt. Ry. Co., 89 Vt. 363, 95 Atl. 683; Barber v. Bailey, 86 Vt. 219, 84 Atl. 608, 44 L. R. A.

(N. S.) 98. These exceptions are not con- the same land and premises conveyed to the sidered.

[3] The plaintiff's seventh exception to the findings was to the neglect of the chancellor to report such testimony as requested. It is enough to say that the record fails to show what the request was, or, indeed, that there was a request; so no question was saved. We must assume, therefore, that the findings are supported by the evidence. Fraser v. Nerney, supra.

[4] It remains to consider whether the decree is supported by the pleadings and findings. The material part of the decree is "that the orator has no right, title, interest, or easement in the strip of land 12 feet wide north of the Ray property so called, bounded westerly by the orator's buildings and described in its bill of complaint, easterly of the line of the easterly face of the foundation wall of said four-story building mentioned therein and known as the Valley Grain Company Building, as it now stands, extending northerly to what was formerly land of Samuel Elliott," etc.

deceased by," etc., governs, he has title to the east wall of the plaintiff's building. The decree shows that the chancellor treated the latter description as determinative. The plaintiff contends that this was error. The only description of the west bound of the Judge lot in the deed to which defendant's deed refers-Goodhue to Judge is "west by lands of William Holding." Holding, as we have seen, at that time owned the plaintiff's land. If the Judge lot, in fact, extended to the plaintiff's building, then the two descriptions in the defendant's deed are clearly inconsistent, and the question is, Which controls?

The intention of the parties must govern, if it can be ascertained from the language used in the deed. The general rule in cases like the one before us is stated in Spiller v. Scribner, 36 Vt. 245, and restated in Cummings v. Black, 65 Vt. 76, 25 Atl. 906. It is too well established to require further notice. Huntley v. Houghton, 85 Vt. 200, 81 Atl. 452, and the cases there cited. "While the reference to a former deed is in terms for a more particular description, it is what the law terms a general description." Hunt

The plaintiff insists that the question of easement was not in the case, and therefore should not have been included in the decree. The decree must conform to the pleadingsley v. Houghton, supra. and findings. Osha v. Higgins, supra, 10 R. C. L. 338, and cases there cited. No issue was raised by the pleadings that involved this question, and "the sole question in controversy," says the chancellor in the first paragraph of his findings, "is the location of the true division line between the orator's land conveyed to it by Henry R. Brown and wife * and that portion of the defendant's land known as the Judge property," etc. While the findings disclose that the plaintiff introduced evidence tending to show its use of the land east of its building, its purpose in so doing was clearly stated, and must have been understood by the chancellor and the defendant throughout the hearing. We quote again from the findings:

"The orator did not claim title or right by adverse user, but relies upon its record title, and the evidence of user, as tending to establish the location of the true line described in the deed and so announced at the outset of the hearing, on being interrogated as to his claim by the defendant."

It is apparent that the question was not in issue, and that in this respect the decree goes beyond what the allegations of the bill, or the facts found, warrant.

[5, 6] The chancellor found that if the particular description in the defendant's deed of the Judge lot determined his rights he has title to a point 2 feet east of, and parallel with, the easterly face of the foundation wall of the plaintiff's building; but if the

A more clearly defined boundary than that of the defendant's west line in the particular description in his deed is seldom found, "a line two feet easterly of the foundation wall of the building of the Valley Grain Company and parallel with said wall." That building is a permanent structure, four stories high, and had stood where it now stands at least 20 years at the time this deed was given. The particular description must control, and the defendant's west line of the Judge lot is fixed thereby. But the defendant says that the decree is proper because if he does not own the land between the line thus established and the east wall of the plaintiff's building it still belongs to the Judge estate and not to the plaintiff. Even So, this is immaterial, in view of the disposition we think should be made of the

[7] The plaintiff insists that it should have a decree establishing its east line at a point 12 feet east of the east foundation wall of its building, because it says the defendant is estopped by a deed which he and Taft, Adm'rs, gave Carroll (in plaintiff's chain of title) from now claiming that the line in dispute is west of where the plaintiff asserts it to be, for the reason: First, that it appears from that deed that the defendant then knew that the plaintiff's east line was east of its buildings, and so stated in the deed; and, second, that the land thereby conveyed is described as bounded on the east, in part, by land of Cyrus Piper, and it claims that

(108 A.)

Lucy Cox. As to the first ground urged in support of this claim it is sufficient to say that the deed does not show what the plaintiff claims. It refers to a right of way theretofore conveyed to John L. Ray, but does not show its location or width, nor is this particular way located by the findings.

this fact-to show who Piper was, or what land he owned, if any.

[9] But the question of estoppel was not raised in the court below. To be conclusive, estoppel must be pleaded, in cases where it can be. Isaacs v. Clark, 12 Vt. 692, 36 Am. Dec. 372. Where it cannot, it may be given in evidence, and, in such case, it will conclude the rights of the parties. Isaacs v. Clark, above cited. But the question will not be considered by this court, unless raised in some form in the trial court. Thompson-Starrett Co. v. Plunkett, 89 Vt. 177, 94 Atl. 845; Atkins v. At

The deed referred to in the deed to Carroll-Cobb to Ray-and a deed from Cobb and Taft to Ray, referred to in other deeds in the defendant's chain of title, were produced in this court, and their contents urged upon our consideration for the purpose of showing the location of the right of way men-kins, 87 Vt. 376, 89 Atl. 643. This is in line tioned in the deed to Carroll as tending to show the location of the plaintiff's east line. These deeds are so referred to by deeds that are in evidence that they would doubtless have been admissible, and, if in evidence, the descriptive part of each would quite likely be treated as though incorporated in the deed making the reference. But they were not even offered in the trial court. In this connection our attention is called to the closing paragraph of the findings:

"Copies of the several deeds in the chain of title of the defendant, as well as the chain of title of the orator, and the deeds of Anson Barber to John Gore and Samuel Whitney to Elihu Hotchkiss, are referred to as a part hereof."

But this reference includes only such deeds as were in evidence, and does not bring into this court, or permit the parties to do so, deeds which were not offered in the court below, merely because referred to in deeds which were admitted.

[8] As to the second ground: If the plaintiff's east line is where it claims it to be its land is bounded on the east, in part, by land of Lucy Cox. The defendant claims, however, that the plaintiff's east line is farther to the west, so that its land does not join the | Cox land. In the deed from the defendant and Taft to Carroll, the land conveyed is described as bounded "east by land of Cyrus Piper, land of Thomas Judge and land formerly owned by John L. Ray," and, as before stated, the plaintiff claims that Piper then owned the land now owned by Lucy Cox. But there is nothing in the record to show

with the well-established rule that this court will not consider questions raised here, for the first time, in cases coming here on exceptions or appeal. Castonguay v. Grand Trunk Ry. Co., 91 Vt. 371, 100 Atl. 908; Ackerlian v. French, 90 Vt. 324, 98 Atl. 921; Levin v. Peck, 88 Vt. 507, 93 Atl. 256; Brown v. Aitken, 88 Vt. 148, 92 Atl. 22, Ann. Cas. 1916D, 1152. Not even in criminal cases. State v. Monte, 90 Vt. 566, 99 Atl. 264, and cases there cited.

But

[10, 11] It is unnecessary to proceed further in the examination of this case, because the plaintiff had the burden of showing title to the land whereon the acts complained of were committed, and, having failed to do this, the bill was properly dismissed. the decree is too broad, and must be modified to conform to the pleadings and findings. This, however, does not necessitate a reversal, because this court has authority to alter the same. G. L. 1564.

The decree is altered so as to read as follows: It is adjudged and decreed that the division line between the land of the plaintiff and that part of the defendant's land known as the Judge lot is 2 feet east of the easterly face of the foundation wall of the plaintiff's building. Bill, dismissed, with costs to the defendant, and, being so altered, the decree is affirmed.

This alteration eliminates the element of easement from the decree, and substantially changes the location of the division line from the location fixed by the decree of the lower court, all in the plaintiff's favor: therefore let it recover its costs in this court.

(265 Pa. 115)

HARTLEY et al. v. HARTLEY.

(Supreme Court of Pennsylvania.

1919.)

S. Y. Rossiter and A. A. Freeman, both of Erie, for appellants.

Monroe Echols and Charles A. Mertens, May 21, both of Erie, for appellee.

PER CURIAM. By item 2 of the will of

WILLS 601(1)-DEVISE NOT CUT DOWN BY Lucinda W. Hartley she devised in fee the SUBSEQUENT PROVISIONS IN WILL.

Where testatrix devised a farm, with live stock, to a son, with directions to pay certain to an adopted daughter during minority, the devise was not cut down by a subsequent item devising to other children all of her property, real, personal, and mixed, share and share alike to them and their heirs forever, in absence of a clearly expressed intent to do so.

amount to the executor and to furnish a home

farm in controversy to her son, Joseph C. Hartley, the defendant below, charged with the payment of $800. He was the first taker under the will, and the estate given him is not to be cut down in the absence of an intent by the testatrix to do so, clearly appearing in the subsequent portions of her will. Mickley's App., 92 Pa. 514. Such intent does not appear, and the judgment is affirmed on the following from the opinion of the learned

Appeal from Court of Common Pleas, Erie court below discharging the rule for judgCounty.

Ejectment for land in Greenfield Township, by H. W. Hartley and others against J. C. Hartley. From an order discharging a rule for judgment for plaintiffs on the pleadings, plaintiffs appeal. Affirmed.

From the record it appeared that plaintiffs claimed under clause 3 of the will of Lucinda W. Hartley. The defendant claimed under clause 2 of the same will.

The material portions of the will are as follows:

ment for the plaintiffs on the pleadings:

of the testatrix to devise the farm of 85 acres, "Taken as a whole, it was the evident intent situated in Greenfield township, together with the live stock, tools, teams, and implements pertaining thereto, etc., to her son, Joseph Charles Hartley, require him to support her adopted daughter, Jessie May Hartley, until she was 18 years old, charge that farm with $800, and, under the third item, to give the balance of the estate to the persons named in that item, except the specific articles bequeathed in the following items of the will." Judgment affirmed.

(265 Pa. 101)

BEISHLINE v. KAHN et al.

May 21,

"Item 2. I give and devise unto my son, Joseph Charles Hartley, my farm of about eightyfive acres situate in Greenfield township, county and state aforesaid, Dounded and described as follows, to wit: On the north by the Rich Hill Road, on the west by land of Ed. Smith, on the south by land of G. S. Wilkson, on the east by land of the heirs of Elsie Whitney, together (Supreme Court of Pennsylvania. with the live stock, teams, tools and implements pertaining thereto, together with my household goods and contents of my house and barn and other buildings on the following conditions: My said son, Joseph Charles Hartley, is to pay to my hereinafter named executor the full sum of eight hundred dollars ($800) as soon as can conveniently be done after my de

cease.

"Item 3. I give and bequeath to my sons, H. W. Hartley and E. E. Hartley, and my daughters, Anna Jane, intermarried to George Bemiss, and Mary Ellen, the wife of John P. Burch, all of my property, real, personal and mixed, or wherever the same may be at the time of my death, share and share alike to them and their heirs forever, and further I direct that my son, Joseph C. Hartley shall furnish a home for my adopted daughter, Jessie May Hartley, until she is 18 years old."

The court discharged the rule for judgment for plaintiffs on the pleadings. Plaintiffs appealed.

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, SIMPSON, and KEPHART, JJ.

1919.)

JUDGMENT 119-TIME OF ENTRY FOR WANT
OF SUFFICIENT AFFIDAVIT OF DEFENSE.

Under Practice Act, §§ 10, 12, 17, a judgment may be entered against defendant for want of an affidavit of defense, before the return day of the summons.

Appeal from Court of Common Pleas, Luzerne County.

Action by Howard Beishline against Joseph Kahn and the London & Lancashire Indemnity Company of America. From an order striking off a judgment entered for want of a sufficient affidavit of defense, plaintiff appeals. Reversed, and judgment reinstated.

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, SIMPSON, and KEPHART, JJ.

John H. Bigelow and Richard L. Bigelow, both of Hazleton, for appellant.

Charles M. Bowman, of Philadelphia, and Reynolds & Reynolds, of Wilkes-Barre, for appellees.

(108 A.)

BROWN, C. J. This appeal is from an or- [ authorized by the statute was properly enterder of the court below striking off a judgment ed. As the trial judge says, the evident intent entered for want of an affidavit of defense be- of the lawmakers was to speed the cause. Judgfore the return day of the summons issued ment by default may be taken at any time after against the defendant in an action of assump- the commencement of a suit, when either parsit. Prior to the passage of the Practice Act ty is in disregard of the provisions of a statutory rule." of May 14, 1915 (P. L. 483), such judgment could not have been taken, and judges of the common pleas, including those of the court below, have differed as to the right of a plaintiff to take it under that act. The majority of the court below were of opinion that the act did not authorize it, and the rule to strike off was accordingly made absolute. It is well this appeal has been taken, for our diswell this appeal has been taken, for our disposition of it will settle an important question of practice.

In view of the foregoing, the learned court below ought not to have regarded the question before it as unsettled.

That a plaintiff may file his statement and have it served on the defendant the same day the writ issues and is served, is undoubted. Section 10 of the Act of 1915 provides that Section 10 of the Act of 1915 provides that the statement of claim shall be indorsed as

follows:

"To the within defendant-You are required to file an affidavit of defense to this statement of claim within fifteen days from the service

hereof."

It is urged in support of the action of the court below that judgment ought not to be entered against a defendant before the day on which he is summoned to appear. This is true, unless the Legislature has provided This notice shall be followed by the name otherwise, and that it may so provide has of the plaintiff's attorney, or by his own long been settled. Under the Act of June 16, name if he sues in person, and an address 1836 (P. L. 715), a rule of reference to arbi-within the county where all papers are to be trators may be entered the day the plaintiff served; and section 12 of the act declares files his declaration, and he may obtain an thataward, which, if unappealed from, will be-t

come a final judgment before the return day of his writ. Henness v. Meyer, 4 Whart. 358; Fehr v. Reich, 36 Pa. 472. In Griesmer v. Hill, 225 Pa. 545, 74 Atl. 429, the sole question before us was whether, under the Replev

in Act of April 19, 1901 (P. L. 88), judgment for want of an affidavit of defense could be entered against the defendant before the return day of the writ. In holding that it could, we said:

"Passing to the merits of this appeal, it seems that the practice of entering judgment for want of an affidavit of defense in replevin suits was first authorized by the Act of April 19, 1901, P. L. 88. Section 4 provides: The plaintiff in such action shall file a declaration, verified by oath, which shall consist of a concise statement of his demand, setting forth the facts upon which his title to the goods and chattels is based.' Section 5 provides: "The defendant or party intervening shall, within fifteen days after the filing of such declaration, file an affidavit of defense thereto, setting up the facts denying plaintiffs' title and showing his own title to said goods and chattels; and in the event of his failure so to do, upon proof that a copy of said declaration was served upon him or his attorney, judgment may be entered for the plaintiff and against the defendant or party intervening.' It will be seen that the statute plainly requires the defendant to file an affidavit of defense within 15 days after the filing of the declaration. In the present case, the statement was properly filed with the præ cipe for the writ, and a copy served by the sheriff on defendants together with the writ. This was complete notice to them that the statement had been filed, and they were bound to take notice of the requirement of the statute, to file an affidavit of defense within fifteen days. They failed to do so, and judgment as

"The defendant shall file an affidavit of defense to the statement of claim within fifteen days from the day when the statement was served upon him."

If an affidavit of defense is not filed with

in the prescribed time in an action of assumpsit, the prothonotary "may enter judgment for want" of it. Section 17 of the same act. This means that the judgment. which the prothonotary is authorized to enter is to be entered on the præcipe of the plaintiff or his attorney. Words could not possibly make clearer the legislative intent that judgment may be taken against a defendant before the return day of the writ issued against him, and that this legislative speeding the disposition of a case is very wise is well illustrated by the case at bar. On June 26, 1917, a summons was issued against the defendant, and on the same day the plaintiff filed his statement of claim. Both were served on the 29th of the same month. The summons was returnable September 10, 1917, that being the next ensuing return day in the court below. Two months and a half elapsed between the day the summons was issued and the return day, and, under the construction we are asked to give to the Act of 1915, the plaintiff could have asked for nothing under his pleadings during all that interval. The Legislature had provided that he should not be so delayed, and, if we should hold otherwise. we would practically read into the act a proviso that, whenever the 15 days-the period of time within which an affidavit of defense must be filed-shall expire before the return day of the writ, the time of filing shall be extended to that day. This would be forbidden judicial legislation. Endlich on Inter

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