on final hearing, plaintiffs appeal. Affirmed. | of said Out-Lot and others, as a public street, Frank Gunnison, Marsh & Eaton, and Monroe Echols, all of Erie, for appellants. Frank J. Thomas, of Meadville, and Clark Olds, of Erie, for appellee. MESTREZAT, J. We agree with the conclusion of the learned judge of the court below which he has amply vindicated in the opinion filed. This was a bill to restrain the defendant from obstructing or interfering with the use by the plaintiffs or the public of an alleged alley in the city of Erie. The facts have been found and stated by the learned court below, and we shall restate only those necessary for the consideration of this appeal. In 1890, the city of Erie by a duly enacted ordinance caused a pavement to be constructed in the roadway of Twelfth street in front of a piece of land abutting 40 feet on the street and extending back therefrom the same width for a distance of 330 feet, being the land involved in this litigation, at the expense of the owners of the property abutting on the street, and an assessment was made against the land for its proportion of the cost. The assessment was not paid, and a lien was filed against the land and unknown owner. A scire facias was issued on the lien, and the writ was served by publication according to law. Subsequently a judgment was entered in favor of the city of Erie against the land for want of an appearance and affidavit of defense. A levari facias was issued on the judgment, the land was sold by the sheriff to one Van Cleve, and a deed was duly acknowledged and delivered. Van Cleve's title was, by sundry conveyances, vested in Charles P. Hewes, the defendant in this suit. Hewes brought an action of ejectment in 1912 against all the then owners of real estate abutting on the alley or land in question and the city of Erie. The plaintiffs in the present suit are the successors in title to the individual defendants in that action. Hewes filed an abstract of title setting forth, inter alia, title out of the commonwealth and the ordinance and subsequent proceedings on the municipal lien, resulting in sale to his predecessor in title. It is conceded by the plaintiffs in this bill that Hewes relied upon the title acquired by the sale on the municipal lien to recover in the action of ejectment. The defendants pleaded the general issue in that action and, as required by the act of May 8, 1901 (P. L. 142), filed an an swer, in which they averred that the owners in fee of a larger piece of land, known as the "Outlot," of which the land in controversy here was a part, "dedicated the said land in dispute, * * to the public, and to the owners of the remaining portions * and said other owners as persons, their successors, heirs and assigns for use as a public street, alley or highway forever." The action was tried, and resulted in a verdict for the defendants. The court made absolute plaintiff's rule for judgment non obstante veredicto. The defendants appealed to this court, and the judgment was affirmed. Hewes v. Miller, 254 Pa. 57, 98 Atl. 776. The plaintiffs in the present suit, the successors in title to the individual defendants in the ejectment, filed this bill, in which they averred, inter alia, that they were the owners of lots, respectively, on the east and west side of an alley or public highway; that the strip of land claimed as a highway was, and for more than 21 years prior to laying the pavement on Twelfth street had been, used and traveled by the public, the plaintiffs, and their predecessors in title as a public highway and as a means of access to the premises of the plaintiffs by travel on foot and by vehicle; that the said use of the same was open and notorious and apparent to everybody; that plaintiffs were advised by their counsel that the same had been dedicated to the public as a highway by the owners, and the public had accepted the dedication immediately after it was made. The bill prays for an injunction restraining the defendant from obstructing or interfering with the use of the right of way over and through the alley by the public or the plaintiffs. The defendant filed an answer, admitting that the plaintiffs were the owners of the respective premises averred in the bill, but denied that the strip of land in question was a public highway or alley, and averred, inter alia, that it was the defendant's private property; that it was used by the plaintiffs' predecessors in title for a private raceway; that by proceedings upon the municipal lien it was adjudicated by the court that the land was private property; and that the purchaser at the sale upon said lien acquired a good and absolute title to the fee of the same. He, therefore, alleged that he was the owner in fee simple of the land in controversy, free the plaintiffs; that the questions as to of any easements or claims by the public or whether the land was private land or a public or private driveway and as to whether the public or the plaintiffs had an easement or not were adjudicated and determined upon the scire facias issued upon the municipal lien, and that the judgment in the scire facias proceeding and in the action of ejectment was conclusive as to all the questions attempted to be raised in the present proceeding. The learned court below held that the judgment in the proceedings on the scire facias on the municipal lien was conclusive as to the character of the land in suit, that it was private property, and that the judgment in ejectment being between the same parties and for the same land in dispute in the present suit was conclusive against the right of the plaintiffs to maintain this bill. We are of the opinion that the learned court below was clearly right in holding that the questions raised by the plaintiffs in this proceeding were adjudicated in the action of ejectment, which was in a court of competent jurisdiction, between the same parties, and for the same cause of action. Section 23, art. 15 of the act of May 23, 1889 (P. L. 324), provides that: "A sale of any property under a writ of levari facias, issued upon a judgment obtained upon any lien filed in pursuance of this act, whether the real owner be named or not, shall be deemed a procceding in rem and shall vest a good title in the purchaser to the property thus purchased. When the owner of a lot is unknown, the claim shall be filed against the land assessed and 'unknown owner,' and indexed accordingly." The enactment of the ordinance authorizing the paving of Twelfth street, the filing of the lien against the property in question, the proceeding on the scire facias, the entry of the judgment thereon, and the subsequent sale of the property were strictly regular and conformable to the statutory requirements. The judgment on the scire facias was conclusive of all questions which were or could have been raised in the proceeding. It determined conclusively, as we held in the ejectment suit, the status or character of the land, whether it was private property subject to the lien or a highway, and therefore not assessable or subject to the lien. It was conclusive evidence of every fact on which it must necessarily have been founded. Hamner v. Griffith's Adm'r, 1 Grant, Cas. 193. It is unquestionably true that the plaintiffs in this proceeding could have raised and had adjudicated, on the trial of the scire facias, whether, as alleged by them, they and the public had a right of way over the strip of land in question, and whether, therefore, the land was the subject of a municipal lien for the paving on Twelfth street. It is no answer to this suggestion that the plaintiffs here might have been ignorant of the proceeding which resulted in the judgment and sale on the municipal lien. That proceeding was strictly in conformity with statutory requirements, and the parties affected thereby were required to take notice of it. It was a proceeding in rem, against the property itself, and the title that passed by the sheriff's sale on the judgment was a fee-simple title to the land unincumbered with any easement or right of way over it. It is familiar law that a judgment of a court of competent jurisdiction upon the merits of a question litigated between the parties is conclusive in any subsequent controversy directly involving the same question, and is a defense in any further litigation of The doctrine of res adjudicata is based upon the principle that there should be an end of litigation, and that a cause of action once duly adjudicated between the parties shall protect the successful party against further vexation in regard to it. The present suit, although in equity, is between the same parties and for the same cause of action as the ejectment which was determined in favor of the present defendant, who was the plaintiff in that action. He relied upon the title to the land in controversy obtained at the sheriff's sale of the property made in pursuance of an execution issued on the judgment in the scire facias on the municipal lien. The plaintiffs in the present suit, who were the defendants in the ejectment, relied upon the defense which they set up in that proceeding as the ground for the relief prayed for in their bill. It will be observed that in the ejectment suit they not only pleaded the general issue, but, as required by the statute, in their answer they averred as their defense the dedication of the land in dispute as a public highway and its use by the public as such and its acceptance by the municipal authorities, and that therefore the sale made in pursuance of the judgment obtained on the municipal lien did not extinguish the easement or right of the public to use the strip of land as a highway, and did not convey to the purchaser a title free and discharged of the easement. In other words, the contention of the defendants and the issue raised by them on the trial of the cause was that the strip of land was a public alley, and was such at the time of the construction of the pavement, and, as such, not liable for the assessment or the expense thereof. The learned court below, in entering judgment in the ejectment suit for the plaintiff notwithstanding the verdict for the defendants, held that the judgment on the scire facias was conclusive as to whether the strip of land was a public alley, and therefore not assessable for the cost of a pavement constructed in a street into which it enters. The learned court said: "The city having treated this strip of land as private property and filed said paving lien against it as such, and all the proceedings leadand the proceedings being in rem, the defendants ing up to the sheriff's sale thereof being regular, are concluded by the judgment there entered, and cannot now set up that question in this collateral proceeding." We affirmed the judgment on the opinion of the trial court, and it is therefore apparent we determined in the ejectment suit that whether the plaintiffs or the public or both had an easement over the strip of land in question was adjudicated against the present plaintiffs in the proceeding on the scire facias issued on the municipal lien. If such easement existed, the lien was not good, and it would have been so determined on the trial of the scire facias, and a judgment would have been entered against the city. The 1. RAILROADS 301-INJURIES AT CROSSING -RIGHT OF ROAD AND FOOT PASSENGER. Foot passengers have the same abstract right to use a street crossed by a railroad as has the railroad to run its trains over the crossing. [Ed. Note.--For other cases, see Railroads, Cent. Dig. § 956.] 2. TRIAL 125(3)—ARGUMENT OF COUNSEL. In an action against a railroad for injuries at a crossing, counsel for plaintiffs in argument stated in effect that plaintiffs had as much right to use the road at the crossing as the railroad had to run trains there, and also stated, "We have not yet reached the point-we may sometime, but we have not yet reached the point where everybody has got to stand back when the Boston & Maine Railroad runs its trains." Held, that it could not be said as matter of law that the expression created such a prejudice, or so called attention to existing prejudices, as necessarily to render the trial unfair. inne Lavigne and Olivin Girard, each one of Taggart, Burroughs, Wyman & McLane, of Manchester, for plaintiffs. Branch & Branch, of Manchester, for defendant. PARSONS, C. J. [1] The statement of counsel to which objection was taken was a correct statement of the law as to the abstract right of the parties. Gahagan v. Railroad, 70 N. H. 441, 443, 50 Atl. 146, 55 L. R. A. 426. Whether the law as to the care re quired to be exercised by the parties in the exercise of their common and equal right was correctly stated by counsel in argument does not appear. In the absence of further exception, it cannot be inferred erroneous use was made of the abstract principle stated, or that the court failed to give such instructions as would enable the jury to apply the law. Counsel made no statement of fact and did not misstate the law. The sentence to which special exception is taken, "We have not yet reached the point-we may sometime, but we have not yet reached the point-where everybody has got to stand back when the Boston & Maine Railroad runs its trains," was a forceful statement of the legal proposition that a highway traveler is not neces [Ed. Note.-For other cases, see Trial, Cent. sarily in fault who is on a grade crossing Dig. § 305.] when the railroad attempts to occupy it. [2, 3] If for any reason developed in the course of the trial the form of expression used appeared likely unfairly to influence the jury, the presiding justice could have corrected such tendency. Sanders v. Railroad, 77 N. H. 381, 383, 92 Atl. 546; Hoxie v. Walk Exception from Superior Court, Hillsbor- er, 75 N. H. 30S, 310, 74 Atl. 183. It cannot ough County; Pike, Judge. Actions by Olivier Girard, by her next friend, Alphee Picard, and by Corinne Lavigne against the Boston & Maine Railroad. There were verdicts for plaintiffs, and defendant excepts. Exception overruled. Exception was taken to the following portion of the argument of counsel for the plaintiff's: be held as matter of law that the expression All concurred. (91 Conn. 642) MOLZON v. CARROLL. (Supreme Court of Errors of Connecticut. June 1, 1917.) 1. "Let me call your attention in the first place to the fact that this was a public highway, and that these girls and this man, Barth, that they refer to, had just as good a right to be there that day as the Boston & Maine Railroad had, just exactly. They were exercising their rights as American citizens, gentlemen. They were on the public highway of Manchester, and although the Boston & Maine had a right to run its tracks over that crossing, that was not an exclusive right, and that did not mean that you and I and others might not go there, too, and travel up and down that street. We have not yet reached the point-we may sometime, but we have not yet reached the point--where everybody has got to stand back when the Boston & Maine be in writing. Railroad runs its trains. Not yet, I say, gentle- [Ed. Note.-For other cases, see Landlord and men. I say this: That Joseph Barth and Cor-Tenant, Cent. Dig. § 1303.] LANDLORD AND TENANT 303(1)-SUMMARY EVICTION-PLEADING-SUFFICIENCY. A complaint, alleging that the lease contained a provision for termination on 60 days' notice should the lessor have an opportunity to sell, and that he gave the notice and had an opportunity to sell, is not demurrable for failure to show that the opportunity to sell was evidenced by an agreement in writing, in the absence of provision in the lease that the agreement must For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2. LANDLORD AND TENANT 120(2) — SUM- the claim that the agreement of sale must have been in writing. The lease did not so In such case, if the lease did not provide provide. This claim is made in a formal that the notice should be signed by the lessor, an unsigned notice in writing sent in an envelope bearing the return card of the lessor was sufficient. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 422, 423, 433.] 3. LANDLORD AND TENANT 120(1) TRACTS-CONSTRUCTION. - CON A lease authorizing the landlord to give notice of termination "if he has opportunity to effect a sale" does not condition his right to give the notice on a presently executed sale, but only upon his good faith belief that he has an opportunity to sell. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 416-421, 425, 432.] Error from City Court of Waterbury; John F. McGrath, Judge. Suit by Patrick H. Carroll against Robert Molzon. On writ of error to review a judgment for plaintiff. No error. Francis P. Guilfoile, of Waterbury, for plaintiff in error. Edward J. Balthazar and Francis W. Carroll, both of Waterbury, for defendant in error. way; in reality, it formed no part of the oral argument and is barely referred to in the brief. The overruling of the demurrer was correct and may be passed without dis cussion. Upon the trial, Molzon claimed, as the bill of exceptions recites, that the notice given was insufficient, since: (1) It was unsigned; (2) it did not state that the lessor had a present opportunity to sell, but merely an expectation of subsequently entering into a contract of sale; and (3) that the lease referred to an absolute opportunity to sell and not one conditioned upon lessor's ability to clear the title in the future. The lease does not specify who shall give the notice, but it is fairly to be inferred that only the lessor was intended. [2] It specifies that the notice shall be in writing; it does not specify that it shall be signed by the lessor, nor does it give the form of the notice. They might have provided for the form of the notice and that the signature of the lessor should be essential to its validity. In the absence of such provision, it seems unreasonable to hold the parties to a particular form of notice, and alike unreasonable to hold that the unsigned notice is invalid. WHEELER, J. The bill of exceptions does not state with as much particularity as it should the facts upon which the claims of law desired to be reviewed rest. These, as found in the admissions of the pleadings, in the recitals in the bill of exceptions, and as The purpose of the notice is to apprise the conceded by the parties, are as follows: The lessee of a certain fact, and, as far as the defendant in error, Carroll, on July 5, 1916, conveyance of knowledge of this fact is conexecuted a lease of certain described prem-cerned, it can be done by oral as well as by a ises to the plaintiff in error, Molzon, who signed notice. The signature evidences the entered into and has continued in their pos- authenticity of the notice; it does not add session from thence to the present time. The to its contents. What the signature does is lessor, Carroll, covenanted in the lease that: to point out the source of the notice, to iden"The said Molzon, upon the written notice of tify its origin. This may be done by proof sixty days, shall vacate the premises described that the lessor gave it in person, or the body of the notice may show whence it came and whose it is. in the existing lease if the said Carroll has an opportunity to effect a sale of the building and premises with its appurtenances." On September 8, 1916, one Dauch entered into an oral agreement with Carroll to purchase these premises with their appurtenances upon condition that the premises were transferred freed from Molzon's occupation and tenancy, and on September 9, 1916, Dauch gave Carroll a certified check for $1,000 to bind the bargain. Dauch is ready, willing, and able to complete the purchase, but will not do so until the premises are released from Molzon's lease and possession. On September 9, 1916, Carroll gave by registered mail Molzon notice of 60 days to quit possession of the premises 60 days from the receipt hereof according to this agreement, but the notice was unsigned. [1] The amended complaint set forth in substance these facts. It was demurred to because the agreement of sale was oral and unenforceable, and the notice given was insufficient because predicated upon an unenforceable agreement. Both reasons rest upon The unsigned notice received by Molzon, the lessee, told him that it came from his lessor of these premises, and that it was given in pursuance of that agreement as a notice of termination of his tenancy, and that, in case the inadvertent acceptance of rent for September prevented the lessor from ejecting him, then the lessor gave him herewith a notice to quit on September 9, 1916, in accordance with the agreement. In addition, the printed superscription upon the letterhead contained the name, business, and address of the lessor, Carroll. So informing was this notice that Molzon must have known that Carroll sent it to him intending it as the notice called for by their agreement. And when a notice to quit possession does inform the person in possession that it comes from his lessor, and neither the agreement of the parties nor the statute requires it to be signed, its source is definitely determined, and the signature to the notice will not tell the lessee more, and is not essential to make the Appeal from Superior Court, Fairfield notice valid. Tooele Meat & S. Co. v. Morse, County; William H. Williams, Judge. 43 Utah, 515, 136 Pac. 967; Leite v. Croveiro, 36 R. I. 62, 89 Atl. 20; Lund v. Ozanne, 13 N. M. 293, 84 Pac. 710; In re Farmers' Supply Co. (D. C.) 170 Fed. 502; Finnegan v. Lucy, 157 Mass. 439, 440, 32 N. E. 656. [3] The remaining claims require a construction of the words of the lease, "if the said Carroll has an opportunity to effect a sale"; for the right to give the written notice to quit is made to depend upon the existence of this opportunity. Whatever may have been the differences upon the trial, the parties now agree that "an opportunity to effect a sale" means a chance existing in good faith to effect a sale. This language is said to be intended to express a present, absolute opportunity to sell. Suit by Robert A. Fosdick against William B. Roberson and another to foreclose a judgment lien, and for possession of the premises. From a judgment for plaintiff, defendants appeal. Error, judgment set aside, and new trial ordered. George P. Rowell and Warren F. Cressy, both of Stamford, for appellant William A. Comstock. Warren F. Cressy, of Stamford, for appellant William B. Roberson. Stanley T. Jennings and Robert A. Fosdick, both of Stamford, for appellee. SHUMWAY, J. This is an action to forewhich the lien is based was rendered on close a judgment lien. The judgment upon If that be the true construction, the lessor, March 20, 1914, in an action brought by the present plaintiff against the defendant Roberalthough apparently desirous of effecting a son. The latter' action was brought in 1915 sale, has inserted a provision which will deter purchasers. The purchaser wants pos- 1915. The cause of action stated in the comreturnable the first Tuesday in November, session as early as possible. If the notice must wait the present, absolute opportunity, Roberson of the transfer to him of seven parplaint was the fraudulent procurement by at least 60 days thereafter must elapse be- cels of land situated in Stamford by Fosdick fore the transfer. And intending purchasers may not be willing to wait. The language it- by his deed dated August 12, 1911. No actual service of the process was made upon Roberself does not invite, much less require, this construction. It would be against the interest son. The action was begun by a constable of of the lessor, and hence unlikely to have been of Stamford a certificate of attachment of Stamford lodging in the town clerk's office intended by him. The construction which seems to us to accord with the language used and the issuance of an order of notice by the the seven parcels of land above mentioned and the probable intent in its use is that the assistant clerk of the superior court in Fairopportunity was not one which should in all field county, directing that notice of the events exist, but merely one in which the les-pendency of the complaint be sent by mail to sor should have a belief in the chance to effect a sale and one founded in and governed by good faith. There is no error. The other Judges concurred. (91 Conn. 571) FOSDICK v. ROBERSON et al. the defendant at Portland, Or. It appeared, however, that Roberson had notice of the pendency of the action before judgment was rendered. The consideration for the conveyance to Roberson was the transfer by him to Fosdick of 3,000 shares of the capital stock of the Alpena Motor Car Company, a promissory (Supreme Court of Errors of Connecticut. June note for $7,000 made by said Roberson and INTEREST Where C. took title to the realty from R. with full knowledge of the resulting trust in favor of R.'s copurchasers, he took only such title as R. had, and an attachment creditor acquired by his attachment only the rights which R. had in the property. [Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 453, 550-575.] 2. ATTACHMENT 171 CIENCY. NOTICE secured by a mortgage to Fosdick upon the same premises, and the agreement by RoberSon to assume and pay four mortgages upon the premises aggregating $28,000, one to the trustees of the Universalist Church of Stamford for $15,000, one to Nicholas C. Downs for $3,500, one to Ernest L. Conant for $7,500, and one to William H. Arthur for $2,000. The 3,000 shares of the Alpena Motor Car Company in August, 1911, were owned and held by Roberson and 12 other persons, resiSUFFIdents of Alpena, Mich.; the number held by Under Pub. Acts 1911, c. 135, providing that Roberson and transferred to Fosdick was if there be no person in charge or possession of 1,470 shares, and the remaining number by the property attached the court before which such action is returnable may order such notice the 12 others. These 13 persons agreed verof the action as it may deem reasonable, notice bally among themselves that the interest of of the action given according to an order of each in the premises conveyed to Roberson notice not prescribed by the court issued by the should be in proportion to the stock owned by assistant clerk of the superior court is insufficient, and renders the attachment judgment void. them and transferred as mentioned. On De[Ed. Note. For other cases, see Attachment, cember 18, 1911, the defendant Roberson by Cent. Dig. §§ 492-504.] his deed of that date conveyed the seven For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |