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Ethel May Kautz. That circumstance furnishes sufficient justification for relieving him from liability from which he can secure little benefit.

IV.

CONCLUSIONS OF LAW.

1. No resulting trust subsists in favor of plaintiff for any part of said premises.

2. The house erected on the aforesaid premises is a gift from plaintiff to defendant.

3. That same was given as some compensation for the time defendant, Ethel May Kautz, was obliged to waste on plaintiff.

4. The plaintiff is entitled to indemnity in the amount of $4,049.75 from the defendant by reason of liability incurred under contracts for the erection and construction of said dwelling house.

5. That the costs of this proceeding be borne by the plaintiff.

V.

ANSWERS AND REQUESTS.

1. For Findings of Fact.
(a) By Plaintiff.

1. Plaintiff is a resident of the Borough of Freemansburg, Northampton County, Pennsylvania, and defendants are residents of the Borough of Stroudsburg, Monroe County, Pennsylvania.

Answer: Affirmed.

2. The maiden name of the defendant, Ethel May Kautz, was Ethel May Shimer and her residence prior to her marriage was City of Bethlehem, Lehigh County, Pennsylvania.

Answer: Affirmed.

3. Ethel May Kautz, the defendant, was married to Layton Kautz, defendant, on the 2nd day of March, 1922. Answer: Affirmed.

4. The plaintiff and the defendant, Ethel May Shimer, entered into a contract of marriage in the latter part of 1917 or the beginning of the year 1918.

Answer: Affirmed.

5. B. Luther Shimer, father of Ethel May Kautz, was the owner in 1917 of all that certain parcel of land or piece of ground situate on the east side of Wilbur Ave

nue between Market and Broad Streets, in the City of Bethlehem, County of Lehigh and State of Pennsylvania, bounded and described as follows, to wit:

Beginning at a point in the easterly line of Wilbur Avenue said point being located two hundred twentyfive (225) feet north of the northerly side of Market Street, thence extending northwardly in and along the easterly line of Wilbur Avenue seventy (70) feet to a point, thence extending eastwardly in and along line of other lands of the grantors herein one hundred and fifty (150) feet to a point in the westerly line of a certain twenty (20) feet wide alley, thence extending southwardly in and along the westerly side of the said alley, parallel with Wilbur Avenue, seventy (70) feet to a point, thence extending westwardly in and along line of other lands of the grantors herein, parallel with Market Street, one hundred and fifty (150) feet to the point in Wilbur Avenue, the place of beginning.

Bounded north and south by other lands of the grantors herein, east by a twenty (20) feet wide alley, and west by Wilbur Avenue. Containing 10,500 square feet of land.

Answer: Affirmed.

6. By deed dated the 30th day of April, 1920, B. Luther Shimer granted and conveyed the premises described in the preceding request to Ethel May Kautz; the deed having been recorded in the Recorder's Office in and for Lehigh County on the 14th day of October, 1921, in Deed Book Volume, 367, page 390.

Answer: Affirmed.

7. The premises described in the foregoing requests were vacant until August, 1921, when the plaintiff, through contractors, commenced the erection and construction of a dwelling house thereon.

Answer: Affirmed.

8. The construction and erection of the house has been proceeded with to the extent that the same is finished with the exception of laying the hardwood floors, installing certain plumbing, heating and lighting fixtures and touching the woodwork.

Answer: Affirmed.

9. On the 19th day of December, 1921, at the request

of the defendant, the plaintiff agreed to a breach of the contract of marriage between them.

Answer: Refused.

10. The plaintiff paid to B. Luther Shimer, father of Ethel May Kautz, the sum of $950, one-half of the purchase price of the premises described in request No. 5. Answer: Refused.

11. The complainant has actually expended and paid towards the erection and construction of said house the sum of $2,126.25.

Answer: Affirmed.

12. The complainant is liable to contractors and others for material furnished and work done and for material to be furnished and work to be done under contracts to which he is a party in the sum of $4,049.75.

Answer: Affirmed.

13. The value of the property described in paragraph 5 of these requests and in the 8th paragraph of plaintiff's bill at the time of the agreement to convey and at the time of conveyance was $2,000.

Answer: Affirmed.

14. At or after the parties agreed to a breach of their agreement to marry each other, the defendant, Ethel May Kautz agreed and promised the plaintiff that he should be paid whatever he had spent towards the erection and construction of the house.

Answer: Refused.

15. The parties intended that the house and lot after its completion should be used and enjoyed by both as husband and wife.

Answer: Affirmed.

(b) By Defendants.

1. Plaintiff and defendant Ethel May Kautz entered into an engagement of marriage on the 24th day of December, A. D., 1920.

Answer: Affirmed.

2. Plaintiff broke the contract of marriage with defendant on the 19th day of December, A. D., 1921.

Answer: Affirmed.

3. Defendant Ethel May Kautz paid to her father B. Luther Shimer all of the consideration price of the said lot by him deeded to her.

Answer: Affirmed.

4. Plaintiff built a house and made a present of it to Ethel May Kautz which she accepted.

Answer: Affirmed.

5. Plaintiff gave defendant Ethel a receipt as follows: "Bethlehem, Pa., January 24, 1922 received of Ethel May Shimer Six Hundred fifty 00-00 Dollars Value Rec'd for house.

(Signed) WESLEY P. WARD." Answer: Affirmed.

6. This receipt for $650 was given by plaintiff for cash he received of defendant Ethel on January 24, 1922. Answer: Affirmed.

7. Said receipt (referred to in paragraph Fifth of Findings of Fact supra) was given by plaintiff to defendant Ethel as evidence also that the house was her property outright and in fee.

Answer: Affirmed.

2. Conclusions of Law.
(a) By Plaintiff.

1. The plaintiff being under no legal or moral obligation to support the defendant, the sum of $950 paid on account of the purchase price of the lot was not presumptively an advancement or a gift and the defendant having failed to prove conclusively that the same was an advancement or a gift, a resulting trust arose in favor of the plaintiff in an undivided one-half interest in the real estate.

Answer: Refused.

2. A trust will be declared and enforced even though it is contrary to the expressed intention of the parties, if the declaration and enforcement is necessary to do justice between the parties.

Answer: Refused.

3. The complainant is entitled to a lien on the premises in the amount of $2,126.25 to secure him for the sums actually expended in the erection and construction of the dwelling house.

Answer: Refused.

4. The plaintiff is entitled to security in the amount of $4,049.75 from the defendant by reason of liability incurred under contracts for the erection and construction of said dwelling house.

Answer: Affirmed.
(b) By Defendants.

1. No resulting trust subsists in favor of plaintiff for any part of said premises.

Answer: Affirmed.

2. The house erected on the aforesaid premises is a gift from plaintiff to defendant.

Answer: Affirmed.

3. That same is some compensation for the time defendant Ethel was obliged to waste on plaintiff.

Answer: Affirmed.

4. That plaintiff's Bill should be dismissed with costs.

Answer: Refused as stated. Costs to be paid by plaintiff, but plaintiff entitled to a decree of indemnification against further liability.

VI.

DECREE NISI.

And now, January 2, 1923, the Prothonotary is directed to enter a decree nisi in accordance with the foregoing findings and to notify the parties thereof so that exceptions thereto may be filed within ten days.

STEIN'S EXTRS. v. O'BRIEN AND MILNE.

Trespass-Obstruction of Private Way-Implied Easement.

1. An owner of land may arrange it as he pleases, doing no injury to others, and any ways or other privileges which he may provide for the necessary or convenient use of the different parts of the land, or of structures on it, will remain as servitudes upon the parts subjected to them by him, in the hands of subsequent purchasers with notice.

2. It is within the province of the jury to decide whether or not certain gates are a reasonable obstruction to a private right of way.

Motions for New Trial and for Judgment n. o. v.No. 180 September Term, 1921-C. P. of Somerset County.

C. L. Shaver and F. J. Kooser, for Plaintiffs.
Uhl & Ealy and Boose & Boose, for Defendants.

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