Now, December 17, 1923, motion to strike off plaintiff's statement of claim is sustained, with leave to file amended statement within fifteen days after service of a copy of this order.

JONES v. MILLER.

Mechanics' Lien-Amendmen!-4ffi lavit-Act of June 4, 1901, P. L. 453, Section 51.

An amendment to a mechanic's lien, not supported by an affidavit that the averments therein by mistake were omitted from or wrongfully stated in the claim, as required by the Act of June 4, 1901, P. L. 453, Section 51, will be stricken off on motion.

In the Court of Common Pleas of Lehigh County. No. 1 October Term, 1921. M. L. D. Lewis M. Jones v. Robert E. Miller, Mechanic's Lien. Amendments. Motion to Strike Off Amendments. Motion Sustained.

William H. Schneller, for Plaintiff.

Dallett H. Wilson and Edmund R. Castellucci, for Defendant.

Reno, J., December 17, 1923. The mechanic's lien was filed October 3, 1921. Scire facias was issued thereon November 27, 1921, returnable to second Monday of December, 1921. Time to file affidavit of defense thereto was extended to January 16, 1922, when a motion to strike off the lien was filed. An answer to this motion was filed December 22, 1922, and on January 9, 1923, the court granted leave to claimant "to present amendments to his lien within thirty days." On February 1, 1923, amendments were presented and allowed by the Court. On February 13, 1923, defendant procured extension of time to file affidavit of defense or whatever petition for rule that may be deemed necessary" to March 12, 1923, and on March 22, 1923, leave was further extended to April 23, 1923. On that date defendant filed a petition, alleging various defects in the amendments allowed February 1, 1923, and in the allowance thereof by the court, and moved to strike off the amendments. An answer to this petition was filed August 13, 1923.

The view we take of the controversy requires us to notice only one feature of the petition of April 23, 1923, which is the matter now before us. The Act of June 4, 1901 (P. L., 453; section 51) provides:

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"Any claim may be amended from time to time by agreement of the parties or by leave of court, upon petition for that purpose, under oath or affirmation setting forth the amendment desired, that the averments therein contained are true in fact and that by mistake they were omitted from or wrongfully stated in the particulars as to which the amendment is desired."

The amendments heretofore allowed were not supported by the required affidavit, "that by mistake they were omitted from or wrongfully stated" in the claim. It follows that their allowance by the court was erroneous and must be stricken from the record: Dyer v. Wallace, 264 Pa. 169.

Now, December 17, 1923, the order heretofore made, to wit, February 1, 1923, allowing amendments to the lien is vacated and motion to strike off said amendments is sustained.

ESTATE OF SOLOMON STEPHENS, DEC'D. Decedents Estate-Specific Performance-Parol ContractStatute of Frauds and Perjuries-Orphans' Court-Citation Estoppel.

A person, after answering the averments of a petition for a citation, and, after appearing and taikng testimony, cannot raise the question whether or not a citation, not directed to any person and no return day appearing therein, is sufficient.

Where, in pursuance of a parol agreement of sale of real estate, possession is taken and improvements made, the agreement is binding, notwithstanding the Statute of Frauds and Perjuries.

A decree for specific performance of an agreement made as aforesaid will be entered against a decedent's representatives, subject, however, to the claim or right of the widow, she not having been a party to the agreement.

In the Orphans' Court of Lehigh County. No. 18041. In re Estate of Solomon Stephens, Deceased. Petition for Specific Performance of Parol Contract. Citation. Decree nisi.

Smith, Paff & Laub, and Ethan A. Gearhart, Jr., for Petitioner, Jacob Kichline.

Thomas F. Diefenderfer and Oliver W. Frey, for Respondents, the Administrators of the Estate.

Reno, J., December 17, 1923. This proceeding is before us upon the petition of Jacob Kichline to require the administrators of Solomon Stephens, deceased, to specifically perform an oral contract for the purchase and sale of lands situate in the Township of Williams, County of Northampton, in accordance with the Fiduciaries Act of 1917 (Section 18, subsections a, b, c, d and e.) To the petition the administrators filed an answer and, upon a day fixed by the court, the testimony was taken. The matter is now before us upon requests for findings of fact and conclusions of law.

I.

THE PLEADINGS.

The following is a brief summary of the several pleadings filed in this case.

(a) The Petition.

1. That Solomon Stephens died May 14, 1922, intestate, leaving to survive him a son, John A. Stephens, and a wife, Alice C. Stephens.

2. That on June 8, 1922, the Register of Wills of Lehigh County issued letters of administration to Alice C. Stephens, John A. Stephens and Robert D. Barron.

3. That Solomon Stephens on or about July 1, 1906, was seized in fee of the land described in the third finding of fact.

4. That Solomon Stephens on or about July 1, 1906, by parol, agreed to convey to the petitioner said premises for the purchase price of $1800 to be paid upon delivery of deed, petitioner meanwhile to pay interest at five per cent. per annum upon the purchase price and that premises were to be assessed in petitioner's name who was to pay all taxes, improvements and repairs of the premises and go into the possession thereof.

5. That petitioner remained in possession of premises which were assessed in his name, paid all taxes and interest, made all repairs and improvements, leased parts thereof to tenants and received the rents thereof.

6. That it would be inequitable to rescind the parol contract after possession was taken and the payments made for repairs and improvements.

The prayer of the petition is for a decree of specific performance upon payment of the sum of $1800.

(b) The Answer.

1. Admits allegation of first paragraph of petition. 2. Admits allegations of second paragraph of petition.

3. Admits allegations of third paragraph of petition. The foregoing admissions are made by all of the administrators of the estate of Solomon Stephens. The averments contained in the following paragraphs are made by John A. Stephens, one of the said administrators:

4. Denies the making of the oral contract of sale and avers that premises were verbally leased by decedent to petitioner at rental of five per cent. upon the sum of $1800, together with taxes and repairs and further, that few, if any, repairs or improvements were made.

5. Admits that petitioner retained possession of premises but avers that the same was in accordance with terms of verbal lease.

6. Denies that petitioner made extensive improvements and repairs and that if so made such improvements and repairs were made in accordance with terms of lease.

The answer also avers that the citation was not directed against any person or persons and that a return day was not fixed by order of the court.

II.

FINDINGS OF FACTS.

1. That Solomon Stephens died May 14, 1922, intestate, leaving to survive him a son, John A. Stephens, and a wife, Alice C. Stephens.

2. That on June 8, 1922, letters of administration upon the estate of Solomon Stephens were duly granted by the Register of Wills of Lehigh County to Alice C. Stephens, John A. Stephens and Robert D. Barron.

3. That the said decedent, Solomon Stephens, in his lifetime, to wit: On or about July 1, 1906, was seized in fee of a certain tract or piece of land situated in the Township of Williams, County of Northampton and

State of Pennsylvania, a true and correct description of which is as follows:

All that certain messuage, tenement, tract or piece of land situated in Williams Township beginning at a corner, thence by lands of J. Unangst, South forty (40) degrees west twenty-one (21) perches to a croner, thence by the same South sixty-one and a half (612) degrees west ten (10) perches to a corner, thence by land of Phillip Kunsman the following courses and distances, North sixty (60) degrees west twenty-six (26) perches to a corner, South twenty-two (22) degrees west four (4) perches to a corner, and South twenty-three (23) degrees west thirty-five and five-tenth (35.5) perches to a corner, thence by land of Jacob Kichline the following courses and distances South sixty-three and three-quarters (634) degrees West twenty-four and seven-tenth (24.7) perches to a corner, South two (2) degrees West twenty-seven (27) perches to a corner and North seventy-three and a quarter (734) degrees west twenty-seven (27) perches to a corner, thence by land now or late of Abraham Peffer North eighteen (18) degrees East ten (10) perches to a corner, thence East thirty-five and seven-tenth (35.7) perches to a corner, thence by the same North fifty-one and a half (512) degrees West two (2) perches to a corner, thence by land of George Ruck North twenty-three and a half (232) degrees East fiftythree and five-tenth (53.5) perches to a corner, thence by land of Phillip Kunsman South fifty-four (54) degrees East nineteen and five-tenth (19.5) perches to a corner, thence by land of the same North twenty-three (23) degrees East ninety-three (93) perches to a corner, thence by land of William Kline, South fifty (50) degrees East eighty-six and five-tenth (86.5) perches to the place of beginning. Containing sixty (60) acres and one hundred and fifteen perches (115) of land.

4. That on or about July 1, 1906, Solomon Stephens agreed by word of mouth to sell the premises situated in Williams Township, County of Northampton and State of Pennsylvania, at and for the price or sum of $1800.00, on which said sum interest was to be paid and the property was to be assessed in the name of Jacob Kichline, who was to pay the taxes, and when the said $1800.00 were paid a deed was to be delivered to Jacob Kichline