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LACKAWANNA LEGAL NEWS

he had the title and he said to me: 'Now, there is no question about this title, is there?' I said: 'Of course, there is the law suit pending over there yet. Mrs. Perry might push it, or Perry, or whoever it was that were the defendants, and the only way,' said I, 'to prevent any litigation about it would be to get a paper of Mrs. Perry of some kind setting forth that she had no defense in this thing, or a deed, something of that kindsomething mentioned about a deed or a paper.' I went away then. He asked me if I would draw it up. I said, 'No; I am going away. I am going to Tunkhannock.' I think I had a law suit up there. Next thing I knew one of the Perrys came to me and asked me if I had authorized the drawing of this deed, but I found out that the deed they got from the Perrys embraced the whole of the land; I understood so from some one that it embraced the Holman interest and the other half-some one told me that; I don't know who told me. Some one told me about it and I never authorized any such as that to cover the whole property."

says:

On this same subject on cross-examination, Mr. Lenahan

"Q. In reference to this quit-claim paper, whether or not you directed your clerk in the office to go out and get a blank and prepare that deed when you had gone away? A. I directed him to get some kind of a deed. Q. Mr. Battle? A. Yes, sir. Q. Your stenographer or clerk? A. Yes, sir. Q. Then if the deed had been for the undivided one-half of the property, it would have been in accordance with your instructions? A. If the deed was for the undivided one-half; yes. Q. And the reason why you said you had not authorized such a deed was because you understood the deed covered the whole property? A. That is what I was told; yes, sir; I was told by two or three parties. Q. In other words, if the deed that was drawn between them was for the undivided one-half, wherein M. B. Holman now claims title under Perry, the remaining one-half being left in the parties first named-that is, in H. C. and Susan B. Perry, subpect to a mortgage in favor of Isaac Livingston, that would be in accordance with your instructions and understanding? A. Yes, sir."

Another point on which Mr. Lenahan corroborates the de

fendant is as to the proportion each of the parties should pay of the bill for the asphalt pavement. Perry claimed that Livingston should pay half of the bill. Livingston, in answer, said that if that were right the Perrys should account for half of the rent. As to this matter, Mr. Lenahan testifies as follows:

"Q. When Perry and Livingston came into your office after Livingston had bought out the Holman title, did they come there together? A. I remember one evening they came there; they may have been there before. Q. And that was the time when the question was raised as to the interest J. R. Perry had in the property? A. Yes, sir. Q. The purpose of their visit there was to get Isaac Livingston a valid title to one-half of that property? A. They talked there about making arrangements satisfactory all around. A. Mr. Perry wanted Livingston to pay one-half the asphalt street, did he not? A. There was talk of that, yes. Q. And Livingston said he would leave it to you to say whether he should pay half for the asphalt? A. Here is the way that came up: He said Livingston ought to pay one-half that asphalt, and I said, 'Henry, I don't know; I think you got the better of this thing because between Holman and Livingston,' I said, 'if they would pursue you for the rents, the rents would amount to a good deal more. I sat down and figured them. I says: 'You see that will amount to a great deal more than the asphalt.' I think the whole amount of asphalt was two or three hundred dollars-the whole amount; that is my recollection of it. Q. You decided if Henry insisted that Livingston should pay half of their asphalt, he would have to pay Livingston half of the rent? A. Livingston, from the time he bought, and the Holmans, from the time preceding the other. That was submitted to me as a matter of equity."

E. There is considerable other testimony in the case which corroborates the defendant's contention. Solomon Bacharach, a son-in-law of Livingston, testifies to declarations by Perry as to the purchase of the Holman title by Livingston, and as to the asphalt dispute, which cannot be reconciled with the theory of the plaintiffs. Mrs. Bacharach and Miss Livingston daughters of the defendant, among other things give the declaration of Mr. Perry when he said he was glad that Livingston was now a partner of his wife Susan in the property. The testimony of Louis Hartman, a carpenter, is important. The Sun

day after November 5th., 1897, Mr. and Mrs. Perry and the defendant met on the property. Mr. Hartmen was called into the discussion as to the improvements to be made. The conduct and declarations of all the parties on this Sunday are inconsistent with the plaintiffs' claim. Reference should be made to the incident relating to the insurance of the property, also to the sale of only an undivided one-half by the Perrys to J. R. Perry in 1898,and the recital as to their title in the contract of sale.

Taking everything into consideration, we cannot fail to conclude that our eighth finding of fact is abundantly warranted by the evidence.

The questions of law involved in this case are few. There can be no contention as to the legal effect of the sheriff's sale on the municipal lien of Susan Perry. The law is well settled.

"If a tenant in common purchases, with his own money, in the name of another or in his own name, the estate in common at a tax sale, the purchase insures to the benefit of all the tenants in common. All that the purchaser can demand from the others is contribution to the expenses by which the common interest has been relieved from embarrassment."

Tanney vs. Tanney, 159 Pa. 277.

We have not discussed the operation of the statute of frauds on the rights of the parties. The creation of a trust in land must be in writing. A party claiming to come within the exception must have a bona fide claim to the land which is the subject of the trust.

"Where one has a bona fide claim, whether valid or not, to certain land, and is induced to confide in the verbal promise of another that he will purchase the same for the benefit of the former at a sheriff's sale, and in pursuance of this arrangement, allows him to become the holder of the legal title, a subsequent denial of such promise by the purchaser is such a fraud as will convert him into a trustee ex maleficio."

Wolford vs. Herrington, 86 Pa. 39.

We have given the plaintiff the benefit of the principle enunciated in the above case so far as it relates to a bona fide claim on their part to the Holman interest. We do not consider the claim valid, but this seems to make no difference.

Now, therefore, February 4, 1899 the above case having been heard in open court in accordance with the equity rules, after due consideration it is ordered and adjudged, that the plaintiffs' bill be dismissed at the costs of the plaintiffs.

C. P. Schuylkill County.

Bechtel vs. Farquhar.

Public Officers-District Attorney—Vacancy in Office-Acts of May 3, 1850, and May 15, 1874.

Where a person has been duly elected District Attorney, but has resigned before taking oath of office, there is no such vacancy in the office that will justify the Judges of the Court of Common Please in appointing another person. The predecessor will hold over until the next general election.

Petition of E. W. Bechtel, praying the court to revoke the appointment of G. Farquhar as District Attorney. Before Judges. Pershing and Marr.

F. W. BECHTEL, for petitioner.

S. H KAECHER aud E. D. SMITH, contra.

PERSHING, P. J., Marr, A. J., concurring, Jan. 11, 1899.At the general election held in November, 1895, E. W. Bechtel was elected district attorney for the county of Schuylkill, and entered on the duties of said office on the first Monday of January next thereafter. This was in pursuance of Sec. 2, Art. XIV, of the Constitution, which reads as follows: "County officers shall be elected at the general elections, and shall hold their offices for the term of three years, beginning on the first Monday of January next after their election, and until their successors shall be duly qualified; all vacancies not otherwise provided for shall be filled in such manner as may be provided by law."

At the general election held in November, 1898, B. W. Cummings was elected district attorney in regular succession to E. W. Bechtel. At the time fixed for his taking possession of the office, the first Monday of January, 1899, Mr. Cummings informed the court of his decision not to accept it, and declined to take the oath required by Art. VII of the Constitution, and thereby, in the language of that instrument, "forfeited his office." This, it was then thought, occasioned a vacancy in the office

which it was important should be supplied immediately, as it was the day for the opening of the court of quarter sessions, when the grand and petit juries, prosecutors, defendants and witnesses were all in waiting. After a brief consultation the judges appointed G. E. Farquhar to act as district attorney until the next general election. The next day, Jan. 3, 1899, E. W. Bechtel presented his petition to the court, setting forth in substance, that the refusal of B. W. Cummings to qualify did not create a vacancy in the office of district attorney; that Mr. Farquhar was not his legal successor, and that he (Bechtel) held over until his successor was duly qualified, and praying the court to vacate Mr. Farquhar's appointment. No answer was made to this petition. The facts are not in dispute.

The action of the court was based on the Act of May 3, 1850, Sec. 3, relating to district attorneys, which provides, inter alia, "if any vacancy (in said office) shall occur by death, resignation, removal from office or from the county, or otherwise, the judges of the court of common pleas shall supply such vacancy by the appointment of a competent person to fill the office until the next general election: Provided, such vacancy happens thirty days before; if not, then until the next general election thereafter, and until a successor is duly elected and qualified." This Act was not repealed by the Constitution of 1874, the schedule to which expressly provides, Sec. 2, "All laws in force at the time. of the adoption of this Constitution not inconsistent therewith, and all rights, .etc., . . . shall continue as if this Constitution had not been adopted."

Nor is there any conflict between Sec. 3 of the Act of 1850 and the Act of May 15, 1874, P. L. 205, the title of which is "To provide for the appointment of officers to fill vacancies in cases not otherwise provided for by the Constitution or laws of this commonwealth." It is thereby made the "duty of the governor to appoint a suitable person to fill such office, who shall be confirmed by the senate, if in session, and who shall continue therein till the first Monday of January next, succeeding the first general election which shall occur three or more months after the happening of such vacancy."

Still there remains the only question in the case in hand: Was there a vacancy in the line of constitutional succession to the office of district attorney at the time Mr. Farquhar