erty through the medium of a sheriff's sale; while the court held this charge not established, it sustained the bill on other grounds, and awarded the relief prayed for. The defendant Mannino alone appeals. The record discloses facts somewhat out of the ordinary. Carlini having procured the judgment for 64 cents damages against Onorato, who resided in Ohio, paid the costs, amounting to $12.60, and, through his attorney, Huselton, issued a fieri facias on the judgment, for the collection of the damages and costs. On the appearance docket in the ejectment proceedings the following entry was made: "A. Bertolett, Jr., bill, $1,545." This was also indorsed on the fieri facias. The court found this was a fictitious claim, entered, or procured to be entered, by Huselton. The sheriff, in pursuance of the writ, levied on the property of Onorato, and, on the condemnation, the sheriff's jury made return that the rents, issues, and profits of the premises were of a clear yearly value sufficient to satisfy the debt, interest, and costs in seven years; which return was in conformity with the facts, as the property was renting for $33 a month. Notwithstanding this return, a venditioni exponas was issued and the property sold, the purchaser being Huselton, and the sheriff's deed was made by his direction to Clara A. Rodgers, who conveyed to Mannino for a consideration of $4,000, $700 of which was paid in cash and $3,300 was represented by Mannino's purchase-money mortgage. Onorato had no actual knowledge of any of the proceedings; as before stated, Mannino was his tenant and occupying the property. To the court's findings that Mannino was not a bona fide purchaser, and was guilty of what amounts to fraud, error is not assigned. The only question raised for our determination is whether equity has jurisdiction; the argument being that the bill is an ejectment bill. [1] Although the court below does not specifically find that Mannino practiced a fraud on his landlord, Onorato, in acquiring the property, we think such a specific finding might have been made; certain it is, Mannino must have had knowledge of the sheriff's sale, yet he did not inform Onorato of what was going on, and took the deed for the property without disclosing his purchase. No title passed by the sheriff's deed to Clara A. Rodgers. The act of June 16, 1836 (P. L. 772, § 61 [2 Stewart's Purdon 1567]; Pa. St. 1920, § 10485) provides: The inquest having found that the rents, issues, and profits were of a value sufficient within seven years to satisfy the debt, interest, and costs, no writ of venditioni exponas could be issued. Its issuance after this return was unlawful, and nothing could be sold by it. The deed of the sheriff in pursuance of it was a nullity, the only effect of which was to put a cloud on plaintiff's title. "A cloud upon title is a title or incumbrance apparently valid but in fact invalid." Octoraro Water Co. v. Garrison, 271 Pa. 421, 114 Atl. 638. [2-4] As the only question raised by the record is that of equitable jurisdiction, its resolution must be in appellee's favor. "Equity has jurisdiction to remove clouds from title, and, in a proper case, it will direct the instrument casting the cloud on the title to be delivered up and canceled." Octoraro Water Co. v. Garrison, supra. Whilst it is true plaintiff does not denominate his bill one to remove a cloud on title, yet that is its purpose and effect, and that is the result of the relief prayed for and granted. In no sense was it an ejectment bill; appellant acquired no title whatever by his deed; not only was the deed from the sheriff a cloud on plaintiff's title, but so was the deed to appellant and the mortgage made by him, because the grantor in the one and the mortgagor in the other had no title to convey or pledge. [5-7] Furthermore, the record discloses that, while by demurrer appellant attempted to raise the question of the legality of the remedy sought by plaintiff, yet at the same time he also answered the bill. A defendant may not answer and demur to the whole bill. Stegmaier v. Keystone Coal Co., 232 Pa. 140, 81 Atl. 187. An objection to the jurisdiction of a court of equity must be taken either by demurrer or plea before answer. Margarge v. Ziegler, 9 Pa. Super. Ct. 438; People's National Bank v. Loeffert, 184 Pa. 164, 38 Atl. 996. 184 Pa. 164, 38 Atl. 996. By demurring and answering, defendant waived the question of jurisdiction. [8,9] Had an action of ejectment been brought at law, what would have been the necessary outcome? Under the facts as established, the court would have been required to give binding instructions for plaintiff. Where, in a proceeding in equity, plaintiff's title is clear, and all the evidence relating to it is of such a character that a judge in a trial at law, upon the same evidence, would "If the inquest shall find that the clear prof- not be at liberty to submit the question to its, of any real estate levied as aforesaid, will the jury, equity will grant relief. Richmond not be sufficient to satisfy within seven years, v. Bennett, 205 Pa. 470, 55 Atl. 17; Wilson the debt or damages in such execution, and the v. Cather, 214 Pa. 3, 7, 63 Atl. 190. In adsame shall be approved of by the court, the plaintiff in such writ may have a writ of vendi-dition to this, had plaintiff brought his actioni exponas, to sell such real estate, for tion at law, the mortgagee in the mortgage (116 A.) bound by the judgment, and therefore plaintiff's remedy on the law side of the court would not be complete and adequate. We entertain no doubt as to the jurisdiction in equity. John Bungar, plaintiff in the judgment, was president of the board of trustees of St. Michael's Greek Catholic Church; the note on which judgment was confessed was signed, in the name of the church, by him as The decree is affirmed, at appellant's cost. president of its board of trustees and by the (272 Pa. 402) secretary and treasurer thereof. An answer to the petition to open the judgment was filed and a hearing held, at which no testimony BUNGAR v. ST. MICHAEL'S GREEK CATH. was submitted, so far as this judgment is OLIC CHURCH. (Supreme Court of Pennsylvania. Jan. 3, 1922.) 1. Lis pendens 3(1)—Bill in equity to oust priest held not "lis pendens" as to church property. A bill in equity brought by the members of a church to oust therefrom a priest does not affect the property of the church, and is not lis pendens as to such property, since lis pendens is the control which a court has over the property involved in a suit during the continuance of the proceedings and until the final judgment, and the pendency of such bill does not prevent judgment by confession against the church property in favor of a trustee on a note held by him. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Lis Pendens.] 2. Judgment 68 (2) -Confessed judgment against church in favor of trustee not opened on petition. Where it was not denied that the money advanced by the president of the trustees of a church, for which the note on which judgment was confessed was given, had been expended in necessary repairs which were of substantial benefit to the church property, no reason is shown why the court should open the judgment on petition merely because the judgment creditor was a trustee, especially where, in another suit, it had been determined that the repairs made were a benefit to the property. Appeal from Court of Common Pleas, Butler County; Aaron E. Reiber, President Judge. Action by John Bungar against St. Michael's Greek Catholic Church. Petition by Alex Kosar and others, members of the Church, to open judgment entered by confes sion of the defendant was refused, and petitioners appeal. Appeal dismissed. concerned; all that was produced related to another judgment, which had been confessed by the trustees, and with which we are not concerned. [1] There has been other litigation involving the affairs of this church, which was disposed of by us in the case of Chrapko v. Kobasa, 271 Pa. 447, 114 Atl. 254. That was a bill in equity filed by certain members of the congregation. Appellants contend this bill in equity was a lis pendens, and the judgment note having been made subsequent to the filing of it, with knowledge of the purpose of its filing, the validity of the note was dependent on the outcome of that litigation. "Lis pendens, as usually understood, is the control which a court has over the property involved in a suit during the continuance of the proceedings, and until its final judgment has been rendered therein." Bouvier's Law Dict. (Rawle's Revision) vol. 2, p. 2032. "A lis pendens is the jurisdiction, power, or control which courts acquire over property involved in a suit pending the continuance of the action, and until its final judgment therein." 17 Ruling Case Law, 1008. On examination of the bill in equity, we find its purpose was to restrain the trustees from employing any minister but a Greek Catholic priest, and to prevent the priest who had been chosen by the trustees from holding religious services; and, when we go to the opinion by our Brother Walling, we ascertain that the litigation had nothing to do with the church property. The opinion recites that the bill was filed "against the trustees and Kobasa to secure his ejection and the admission of Hundiak, on the ground that it was a Catholic church," and goes on to say: "A final decree was entered, restraining Kobasa, in effect, from officiating in the church Argued before MOSCHZISKER, C. J., and and directing the trustees to admit Hundiak for FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. James M. Galbreath, of Butler, and E. J. McKenna (of McKenna & McKenna) of Pittsburgh, for appellants. Murrin & Murrin and Levi M. Wise, of Butler, for appellee. all SCHAFFER, J. This is an appeal from the refusal of the court below to open a judgment. that purpose, but not taking the church property out of the custody of the trustees." Thus it will be seen the proceeding set up as a lis pendens had nothing to do with the property of the church, or the rights and powers of the trustees in connection with it, and appellants' position that the note is invalid because of a lis pendens falls. [2] In the answer to the petition to open the judgment it was set up by appellee that the money which it represented was borrow For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ed from him for the church, and was used in the payment of indebtedness contracted in making necessary repairs to it, which repairs had been decided upon previous to the institution of the equity proceeding, and were of substantial benefit to the church property; that the money was loaned to the church, in good faith, prior to the issuing of the preliminary injunction in the equity proceeding. There was no evidence submitted in denial of these averments, and therefore nothing to move the court sitting as a chancellor along equitable lines. Another matter brought to our attention would seem to be decisive against appellants. In the equity case a petition was presented for the attachment of the trustees, in which their authority to make repairs to the church was questioned. In that proceeding the court determined that the church building had been in bad repair, and the improvements made were for the substantial benefit of the property. In the light of this conclusion, from which appellants here did not appeal, and in view of the undisputed averment that the money loaned by plaintiff had gone to pay for these repairs, we fail to see how, in good conscience and equity, his judgment could be disturbed, even though he was president of the board of trustees which gave the judgment note. The appeal is dismissed, at the cost of appellants. (272 Pa. 440) BUTLER COUNTY NAT. BANK v. ST. and others. From an order refusing a petition of Rev. Peter Poniatishin to compel the bank to assign to him its mortgage on bis payment of the mortgage debt with interest, petitioner appeals. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. James M. Galbreath, of Butler, and E. J. McKenna (of McKenna & McKenna), of Pittsburgh, for appellant. Chas. H. Miller, of Butler, for appellees. SCHAFFER, J. This is part of the litigation growing out of differences between members of St. Michael's Greek Catholic Church, other phases of which have been before us in Chrapko v. Kobasa, 271 Pa. 447, 114 Atl. 254, and Bungar v. St. Michael's Greek Catholic Church (Pa.) 116 Atl. 389. There is a mortgage on the church for $7,000, held by the Butler County National Bank; it also holds two judgments aggregating $2,500, which are liens on the church property. Peter Poniatishin, administrator of the Greek Catholic Church in the United States, presented his petition to the court below, praying for an order directing the Butler County National Bank to assign its mortgage and the accompanying bond, together with the judgment entered on it, to him, on payment of debt, interest, and costs; the bank filed an answer denying the right to the reMI-lief sought, the court refused to make the order, and petitioner has appealed. (Supreme Court of Pennsylvania. Jan. 3, 1922.) Subrogation 31 (4)—Mortgagee will not be compelled to assign lien to one denying validity of its junior liens. Counsel for appellant, in their argument, admit the cases are rare where the court will order a mortgagee, on payment of the debt it secures, to assign a mortgage; and this is certainly not one of them, for a most sufficient reason. John Bungar and others, trustees of the church, presented a similar petition, praying for a like order, coupled with a statement of their intention to pay the entire indebtedness of the church, which would include the bank's two judgments. There was not only no such offer from appellant, so far as payment of the judgments is concerned, but in answer to Bungar's petition appellant denied the validity of the additional judgments held by the bank. It would be a manifest injustice to the bank to Appeal from Court of Common Pleas, But-require it to turn over its first mortgage to ler County; Aaron Aaron E. Reiber, President Judge. The cases are rare where the court will order a mortgagee to assign a mortgage on payment of the debt secured thereby, and such relief will not be granted in favor of the administrator of the Greek Catholic Church for the United States against a bank which holds a mortgage on the church property, and also holds judgments which are a subsequent lien upon the property, where the administrator denies the validity of the judgment liens. one who denies the validity of other and junior liens held by it. The order is affirmed, at the cost of the Suit by the Butler County National Bank against St. Michael's Greek Catholic Church appellant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (116 A.) (272 Pa. 159) the act of 1915. He left to survive him a NUPP v. ESTEP BROS. COAL MINING CO. widow and four children. et al. (Supreme Court of Pennsylvania. Jan. 3, 1922.) Master and servant 386(2)-Compensation to surviving children not reduced by the period deceased received compensation. The insurance carrier of defendant claimed, under the section of the act quoted, that the period during which compensation is payable to the widow, 300 weeks, should be reduced 58 weeks, by reason of the payments made to the husband while he lived, and that, at the end of the 242-week period, during which the widow will be entitled to receive compensation, payment should be commenc Workmen's Compensation Act, § 306 (Pa. St. 1920, § 21998), providing that, should the employee die from injury, "the period" during which compensation shall be payable to his de-ed to the children, but that payment to them pendents, under section 307 (Pa. St. 1920, §§ should terminate, with respect to each child, 21999-22002), shall be reduced by the period 58 weeks prior to its sixteenth birthday. An during which compensation was paid to him in agreement to this effect having been tenderhis lifetime, applies to the widow, but has no ed the widow, she refused to sign it, and a application to the surviving children of an em- claim petition was filed with the compensaployee receiving compensation, section 307, tion referee, who declined to find as defendsubsec. 7, providing that in the event of death of the employee the compensation of each child ant requested, and held that the only period shall continue after the period of 300 weeks, which should be reduced by reason of payuntil such child reach the age of 16 years. ments to the decedent in his lifetime was the period of 300 weeks during which com Appeal from Court of Common Pleas, In-pensation was payable to the widow, and diana County; J. N. Langham, President that at the end of the 242-week period durJudge. Proceedings under the Workmen's Compensation Act by Alice Nupp for the death of Irvin Nupp, opposed by the Estep Bros. Coal Mining Company, employer, and another, insurer. On appeal to the court of common pleas the award and finding of Compensation Board was approved, and defendants appeal. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. Frank P. Martin, of Pittsburgh, for appel lants. J. W. Leech (of Leech & Leech), of Ebensburg, Pa., for appellee. SCHAFFER, J. The amending Workmen's Compensation Act of June 26, 1919 (P. L. 642, 646, § 306 [Pa. St. 1920, § 21998]) provides: "Should the employee die as a result of the injury, the period during which compensation shall be payable to his dependents, under section three hundred and seven of this article, shall be reduced by the period during which compensation was paid to him in his lifetime, under this section of this article." Irvin Nupp, an employee of defendant, was injured on December 23, 1918, and died March 3, 1920, as a result of his injuries. He had received compensation for a period of 58 weeks at the rate of $10 per week under ing which payments were to be made to her payments should be made to the children until each child not then 16 years of age should reach that age. This finding was approved by the Compensation Board and by the common pleas on appeal to it. From the action of the latter the defendant brings this ap peal. To give effect to the contention of appellant would be in the teeth of the explicit terms of the act (section 307, subsec. 7 [Pa. St. 1920, § 22002]), which provides: "The compensation of each child shall continue after said period of three hundred weeks until such child reach the age of sixteen." Two of the children will be under 16 years of age, when payments cease to the widow. The effect of giving to the section of the act under consideration the construction contended for would be to stop the payments, not when the act says they shall cease, when these children are 16 years old, but when they are 14 years and 10 months old. The answer to this contention is that the law is not so written. deduction from the widow and the children, but that "the period," thereby meaning in this case the 300-week period, shall be reduced "by the period" during which the deceased received compensation in his lifetime. The judgment of the court below was correct, and we affirm it. The act does not provide for the double For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (272 Pa. 143) In re LILLEY'S ESTATE. (Supreme Court of Pennsylvania. Jan. 3, 1922.) 1. Perpetuities 6(1, 10)-What constitutes "perpetuity." A "perpetuity" is any limitation or condition which may take away or suspend the absolute power of alienation for a period beyond life or lives in being, or 21 years thereafter, and, if there is any possibility that a violation of the rule may happen under a will, the devise is void, and it is void if persons to take may possibly not be ascertained before, or the contingency may happen after, the expiration of life or lives in being at the creation of the interest and for 21 years and possibly 9 months thereafter, or the expiration of 21 years after the creation of the interest. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Perpetuity.] 2. Perpetuities -Rule to defeat manifest Intention to avoid law. The rule against perpetuities is to be applied after a testator's intention is discovered; its object being to defeat a manifest intention which is contrary to a well-recognized policy of the law. 3. Perpetuities 9 (3)-Will held to evidence desire to violate rule against perpetuities. A provision in a will for the leasing of coal lands on a royalty basis, and that all property, including royalties, be invested in a certain manner for 99 years, before any portion thereof should vest in any person, violated the rule against perpetuities. 4. Perpetuities 4 (3)-Rule has to do with future estates that may not become vested within time prescribed by law. The rule against perpetuities has to do with future estates which, by a possibility, may not become vested within time prescribed by law, and applies only to future estates which are contingent, and has no application to vested estates. 5. Perpetuities 9 (7)—Estate held by executors, as trustees, and a coal company in royalty contract held to fall with gift. Under a will providing that executors hold estate for 99 years, and divide it, with accumulations, among the heirs of certain persons, and that veins of coal be opened and worked on a royalty to suit a corporation which testator controlled, there was a violation of the rule against perpetuities, and the estate held by the executors as trustees fell with the gift, and provisions giving corporation right to mine coal are merely a means toward the ultimate end of accumulating a vast income for the sole benefit of the ultimate gift, and also fell with the gift. except during minority, accumulations are contrary to law where there are no beneficiaries whatever during the period of 21 years. 7. Trusts 68-Resulting trust held to arise in heirs at law and next of kin when gift failed. Where a trust created by a will violated the rule against perpetuities, and there was no express residuary legatee, and prior estate disappeared, a resulting trust arose in heirs at law and next of kin, and equity could no longer continue the operation of the trust for the purpose of mere conservation and accumu lation. 8. Wills 855-Prior estate not affected by void remainder unless inseparably related. It does not follow that, simply because ultimate interests are void, prior interests must also collapse, and a prior estate is neither enlarged nor diminished when a remainder expectant upon it is declared void for remoteness, but, where the limitations of the prior and ulterior estates are so intimate and inseparably intertwined that the failure of the limitations of the latter disturbs the main and dominant purpose of the testator, of which the prior limitations are a part, such prior and ulterior estates are void; so, too, where the prior estate is but a mere agency to accomplish the transgression of the rule against perpetuities. 9. Wills 102-Provision in will held not to make gift. A provision in a will, "The mines are to be run the same as they are at my death, and all other coal that I own or have an interest in, except," etc., "can be opened up any place that suits the company, and worked on a royalty to suit the company," was not a devise of coal to the company upon a condition subsequent, having none of the properties of a gift and involving all the features usually incident to the leasing of coal mines, and primarily contemplating a contract, the essential ingredients of which are offer and acceptance, etc. 10. Perpetuities 4 (2)-Estate contingent upon acceptance of option held within rule against perpetuities. Where the event upon which an estate was to arise was the acceptance of an option without any limitation as to time, the interest created was contingent and within the rule against perpetuities, notwithstanding that the option was accepted within 21 years, since the court must deal with facts as they existed at the time of testator's death. Appeal from Orphans' Court, Washington County; Haldain B. Hughes, Judge. In the matter of the estate of Thomas E. From a decree refusing Lilley, deceased. to grant authority to executors to join in and execute a proposed royalty agreement, the Lilley Coal & Coke Company and the executors, on its behalf, appeal. Affirmed. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ. |