this controversy arises, together with the record of the foreclosure suit and judgment and the sheriff's deed to plaintiffs. Plaintiffs then called as a witness John M. Boyd, a son of Matthew Boyd, who testified that his father had resided on the mortgaged premises for a period of 56 or 57 years, and during all that time witness never heard of any one claiming to have an interest in the farm except his father; never heard it was leased until 1896 or 1897. His father paid the taxes on the farm, and he never heard of any one else paying them. No one else resided on the farm except his father. Plaintiffs also offered the triennial assessments of the property from 1866 to 1895, which were admitted under exception. Their admission is the subject of the first assignment of error, but they are neither set out in the assignment nor printed in the paper book. Plaintiffs also offered two satisfied mortgages, given by Matthew Boyd, which were admitted in evidence, subject to exception. The admission of these mortgages is the subject of the second assign. ment, but they are not set out.

In none of the papers offered in evidence by plaintiffs was there any reference to a lease, and in all of them the estate allotted, conveyed, or mortgaged was assumed to be a fee. Defendant offered in evidence a lease, dated September 5, 1681, from William Penn to William Withers for 500 acres of ground, and a release of same dated September 6, 1681, reserving a quit rent of one shilling for every 100 acres; also, a discharge of accrued rent, dated July 6, 1681; also, a lease for the same tract of 500 acres from William Withers, to Thomas Withers, dated January 22, 1682, for a term of 2,000 years at an annual rental of "one pepper corne at or upon the feast of St. Michaell the Archangell, if the same be lawfully demanded, and also paying and discharging the aforesaid chiefe or quit rent of one shilling yearly." This was followed by various conveyances, wills, and mortgages of this tract and portions of it, in most of which the grant was for the rest of the term of 2,000 years under the above lease. This chain of title to the leasehold estate extended down to the titles of Erasmus Morton and Nehemiah Broomall; but, when their estates were partitioned in 1823 and 1831, it was assumed in the proceedings that each owned a fee in the land.

Defendant, also, showed that Matthew Boyd, Jr., the defendant here, and Martha J. Boyd, during the pendency of the foreclosure proceedings, entered judgments against Matthew Boyd and issued executions under which the sheriff of Delaware county levied upon the residue of the term of 2,000 years given under the lease of William Withers to Thomas Withers, and sold and conveyed the same to the defendant. Defendant then called one of his counsel, who was a conveyancer, who testified that he had examined the title to the land in controversy, and that it

was all included in the 500 acres covered by the Withers lease. Under this testimony the court refused to give binding instructions for either plaintiffs or defendant, and submitted to the jury three questions: (1) Whether the property here in question was within the tract of land leased in 1682 by William Withers to Thomas Withers; (2) whether there had been a grant or extinguishment of the landlord's interest in favor of the predecessors in title, of Matthew Boyd; (3) whether there had been such adverse, hostile, and exclusive possession as to bar the setting up of the landlord's title by the defendant. The jury found for the plaintiffs, in a general verdict, and there is nothing upon the record to show upon which of the questions submitted the verdict was based.

The title of Matthew Boyd, the mortgagor, to the mortgaged premises was, as we have seen, traced directly back to two proceedings in partition, in the orphans' court of Delaware county; one in the estate of Erasmus Morton in 1823, and the other in the estate of Nehemiah Broomall in 1831. It was averred in the petitions for the inquests in these proceedings that each intestate died "seised in his demesne as of fee" of the land described, and the estates dealt with are throughout treated as freehold estates, and referred to as real estate, and as that alone. The deed made by the administrators of Nehemiah Broomall to Robert Boyd, in pursuance of the sale under the partition proceedings, expressly undertakes to convey the fee. Aaron Morton, who took by allotment, and Robert Boyd, who took by deed, under the respective partitions, took "feesimple estates," or else they took nothing. The unexpired term of the Withers lease was personal property, and not susceptible of partition. The partition proceedings show no reference to any lease, and there was no apparent intention to deal in any way with a lease, and, if there had been any such purpose, there was no jurisdiction in the orphans' court to make partition of personalty. A leasehold interest is not real estate, but merely a chattel real, which is personal property. Dalzell v. Lynch, 4 Watts & S. 255; Williams v. Downing, 18 Pa. 60; Kile v. Giebner, 114 Pa. 381, 7 Atl. 154; Sterling v. Com., 2 Grant, Cas. 162; Wells v. Becker, 24 Pa. Super. Ct. 174. In Bismark B. & L. Ass'n v. Bolster, 92 Pa. 123, Mr. Justice Trunkey said (page 129): "A long term of years of very great value is not such an interest in land as is subject to the lien of a judgment, it is a chattel, subject to seizure and sale by a constable on an execution issued by a justice of the peace." In Brown v. Beecher, 120 Pa. 590, 603, 15 Atl. 608, Mr. Justice Clark said: "But although the writing of February 3, 1882, is a lease, it conveyed to Marsh an interest in the land, a chattel interest, however, the lease was a chattel real, but none the less a chattel."

If these predecessors of Matthew Boyd

took estates in fee under the partition proceedings, then he also possessed the fee; but, even if the partitions were void, the holdings of the parties were adverse to the rights of any one claiming under the lease. During a period of over 60 years, all the wills, deeds, and mortgages in the chain of title assumed to pass the fee and made no reference to any leasehold interest. For over 30 years prior to giving the mortgage Matthew Boyd was in sole and undisputed possession of the entire tract, paying taxes thereon, and exercising all the rights of an owner. This was shown by the record evidence and by the testimony of the witness John M. Boyd, his son. We can find no evidence that Matthew Boyd, or any predecessor in title since the partition proceedings, ever acknowledged the title of another to the land; but, on the contrary, they all actually claimed the title in fee simple in themselves. The general principle that a tenant is estopped from denying his landlord's title is, of course, unquestioned; but in the present case Matthew Boyd, and his predecessors in title, took possession under a proceeding of record, in which the title was openly and avowedly claimed as a fee simple, and in absolute defiance of the claim of any one in opposition thereto, and there is not a trace of any claim being made by any one as landlord during a period of more than 60 years. The parties who took possession under the partition proceedings were fully justified in supposing that they were taking possession in fee. "Where one enters without knowledge of the tenancy, and irrespective of it, in the assertion of a title on its face adverse to the lessor, though derived, as here, from the tenant, his possession will be hostile, if unequivocal acts and declarations manifest an intention to hold in despite of all others. * Of the facts that have been recognized as indicative of hostile intent, none are perhaps more decisive than the exhibition of a paper title, independent of that residing in the original owner, by color of which the party justifies his entry." Dikeman v. Parrish, 6 Pa. 210, 225, 47 Am. Dec. 455. We can see no evidence to sustain the claim that the relation of landlord and tenant ever existed between Matthew Boyd and the representatives of the lessor in the ancient lease, which is here invoked to defeat his claim to a freehold estate. The defendant got more than he was entitled to, when the question of adverse possession was submitted to the jury. Under all the testimony, the court below might well have held the evidence of adverse possession to be conclusive.

*

Equally persuasive are the circumstances in raising a presumption of a grant or extinguishment of the landlord's reversion prior to the partition proceedings in 1823 and 1831. After a great lapse of time and a series of circumstances disclosing the enjoyment of an unchallenged title during such

period, the courts will presume whatever grant may be necessary to quiet the title. It is not sufficient for a stranger to rest upon an ancient outstanding title. In Jackson v. Hudson, 3 Johns. (N. Y.) 375, Chancellor Kent said: "If a defendant sets up an outstanding title existing in a stranger, it must be a present subsisting title. It must be one that is living and operating. Otherwise the presumption will be that it has become extinguished." This language was cited with approval by Chief Justice Gibson, in Hasting v. Wagner, 7 Watts & S. 215, where he said: "These presumptions conduce to re pose, and there is a growing tendency to encourage them, not only here, but elsewhere. In Jackson v. Hudson, 3 Johns. (N. Y.) 375, the Supreme Court of New York were of opinion that to constitute a defense ir ejectment an outstanding title in a third person must be a present and operative one. else it will be presumed to have been extinguished only by a conveyance, and to whom? Not to the defendant, who does not pretend to claim under it, but to the plaintiff, who has claimed the tract for 30 years and acted as the owner of it." The same chief justice, in Taylor v. Douherty, 1 Watts & S. 324, said, in referring to the case the before him: "We have the expenditure of money, not a single contested act of ownership, but in acts repeated and persisted in for more than 30 years, as regards the ownership of the warrant, and without any adverse claim to it whatever. On every principle of authority and reason, this was sufficient, not only to be left to the jury, but, in the absence of conflicting evidence, to command a verdict. The execution of a deed is presumed from possession in conformity to it for 30 years; and why the entire existence of a deed should not be presumed from acts of ownership for the same period, which are equivalent to possession, it would not be easy to determine." Many other cases to the same effect might be cited in support of this principle, such as Carter v. Tinicum Fishing Co.. 77 Pa. 310; Brown v. Day, 78 Pa. 129; Wallace v. Presbyterian Church, 111 Pa. 164, 2 Atl. 347; Fletcher v. Fuller, 120 U. S. 534, 7 Sup. Ct. 667, 30 L. Ed. 759: United States v. Chavez, 175 U. S. 509, 20 Sup. Ct. 159, 44 L. Ed. 255. In the present case, under all these authorities, the evidence was, in our judgment, amply sufficient to sustain the presumption of a grant.

But, in any aspect of the case, the mortgagor cannot set up, as a defense to the mortgage, that he had no title to the premises. Penna. Company v. Beaumont, 190 Pa. 101, 42 Atl. 522; Faucett v. Harris, 185 Pa. 164, 39 Atl. 842. When the defendant here purchased the interest of Matthew Boyd in the unexpired lease to Thomas Withers, he became the owner of only such interest and rights as the judgment debtor possessed. The defendant had full notice from the record that his father was in possession under

a chain of title which purported to vest in him a fee-simple estate, and he was also aware that his father had held himself out as the owner of the fee by mortgaging it as such. not only to the present mortgagee, but to others. The mortgage under which claim of title is made by the present plaintiffs was on record years before the defendant concocted his scheme and obtained his judgments and made his purchase at sheriff's sale. As he is a son of Matthew Boyd, he was presumably familiar with the fact of his father's long and exclusive possession of the land in controversy. We see no reason for allowing to the defendant any higher rights than those possessed by his father. If the father should be estopped from setting up his want of title against his own mortgage, why should not the son, who claims through the father, be also estopped?

The evidence of title upon the part of plaintiffs was in accordance with the abstract filed. Possession under that title was also shown. If plaintiffs' evidence had stood alone, it would have been sufficient. The alleged title under the prior lease was set up by the defendant, and the claim of possession adverse to the lease was made, and the presumption of a grant in extinguishment of the lease was set up in rebuttal of defendant's case. We do not see that this constituted any variance.

The assignments of error are all dismissed, and the judgment is affirmed.

2. SAME

TION.

APPROPRIATION-EFFECT-REVOCA

An ordinance of a city appropriating money received from the state under Act June 28, 1895 (P. L. 408), appropriating one-half of the amount received from the tax on premiums paid by foreign insurance companies to cities to a firemen's relief association, does not create any vested right in the fund in the association before its actual payment, but such gift is subject to revocation.

Appeal from Court of Common Pleas, Lackawanna County.

Action by the Fireman's Relief Association against the city of Scranton. Judgment for plaintiff on demurrer, and defendant appeals. Reversed.

The following is the opinion of Newcomb, J., in the court below: "This action is as

sumpsit. The defendant has demurred to a statement disclosing the following facts:

"(1) By the act of June 28, 1895 (P. L. 408), a tax was imposed upon the business done in this state by foreign fire insurance companies, of which one-half the net amount was directed to be paid over by the state to the treasurers of the several cities and boroughs in proportion to the amount of tax derived from each as shown by the annual reports of the insurance commissioner.

"(2) By ordinance approved March 17, 1898, entitled 'An ordinance to provide for the annual transfer of a certain fund received from the state treasury as revenue from the foreign insurance companies agreeably to an act of assembly approved June 28, 1895, to the Scranton Firemen's Relief Association,' it was enacted:

66

"Section 1. Be it ordained, etc., that all such sums of money as may be received by the city treasurer in accordance with the act of assembly, approved June 28, 1895, be, and is hereby declared to be received for the benefit of the Scranton Firemen's Relief Association.

""Sec. 2. That the city treasurer is hereby directed to enter such sum on the receipt thereof, under a special account and to repor the said amount annually to the city clerk, who is hereby directed to issue warrants therefor in favor of the treasurer of the Scranton Firemen's Relief Association immediately after the receipt thereof and on report to him of the city treasurer.'

"(3) June 6, 1898, the Scranton Firemen's Relief Association was incorporated by decree of this court. Its articles of association bear date of April 1, 1898, and it nowhere affirmatively appears that it had any actual existence prior to that date, and therefore when the ordinance was passed. Its purpose, as stated in the charter, is 'to provide for the maintenance of a society' for beneficial or protective purposes to the members from funds collected therein.' Its qualification for membership is not defined by the charter, but section 3 of the by-laws provides that 'the requisite qualifications for membership are that the beneficiary shall be or have been an active member of the fire department of the city of Scranton, and a citizen of the commonwealth of Pennsylvania.'

"(4) By section 2 of its by-laws the object of the association is stated to be 'the accumulation of a fund from the annual dues of its members, legacies, bequests, gifts and other sources for the purpose of relieving firemen who may be disabled through accident while in the performance of their duties as active firemen of the city of Scranton, and in case of death for the benefit of a member's widow, orphans or estate.'

"(5) At the time the ordinance was passed, and until 1901, Scranton was a city of the third class, but whether its fire department was a voluntary or paid organization does not appear.

"(6) In pursuance of the ordinance the receipts from the tax in question for the years 1896 to 1899, inclusive, were paid over by the city to the plaintiff. After that date the treasurer refused to make report of the fund to the clerk, and pending mandamus proceedings to compel him to do so the ordinance was repealed by another, approved October 24, 1903. The fund in dispute, therefore, is the amount of receipts from the tax for the years 1900 to 1902, inclusive, still in the city treasury, as follows:

which the plaintiff claims, with interest on the several sums from the date when they respectively came to the hands of the city treasurer. These dates, however, do not definitely appear.

"The demurrer was argued upon the assumption that the plaintiff corporation had an associate existence under its present name prior to the passage of the ordinance under which its claim is made. While it is doubtful practice to supply such fact in that way, we will in this instance assume it as counsel have done, and suggest that the statement be amended in that particular by agreement."

Argued before FELL, BROWN, MESTREZAT, POTTER, and STEWART, JJ.

David J. Davis, City Sol., and H. R. Van Deusen, Asst. City Sol., for appellant. A. A. Vosburg and Charles W. Dawson, for appellee.

POTTER, J. This is an appeal from a judgment entered in favor of plaintiff upon a demurrer filed by defendant to the statement of claim. When the ordinance involved in the present case was under consideration by this court in Com. v. Barker, 211 Pa. 610, 61 Atl. 253, we held that it was a valid and sufficient appropriation of the fund in question for the current year of its passage. Beyond that it was not then necessary to go. But now we are called upon to decide whether or not it may be regarded as a valid appropriation for future years. We can see no sound reason for exempting this appropriation from the estimate of probable expenditures for each fiscal year which, in accordance with the requirements of article 6, § 10, of the act of May 23, 1889 (P. L. 277), is to be made up and presented to councils before the commencement of the year to be covered by the annual appropriations. The fund for distribution comes from the state under the act of June 28, 1895 (P. L. 408), section 2 of which provides as follows: "On and after the first day of January, one thousand eight hundred and ninety-six, and annually thereafter, there shall be paid by the State Treas urer to the treasurers of the several cities and boroughs within the commonwealth, one-half of the net amount received from the two per

centum tax paid upon premiums by foreign insurance companies. The amount to be paid to each of the treasurers of the several cities and boroughs, shall be based upon the return of said two per centum tax upon premiums received from foreign insurance companies doing business within the said cities and boroughs as shown by the insurance commissioner's report. Warrants for the above purposes shall be drawn by the auditor general, payable to the treasurers of the several cities and boroughs in accordance with this act whenever there are sufficient funds in the state treasury to pay the same." We do not find in the statute any direction, or any intimation to any municipality receiving this fund, that it is to be appropriated for the benefit of any private corporation, association, or individual. It is to be paid into the treasuries of the several municipalities, without distinction as to its use, from any other fund therein. It may be used in the discretion of the local authorities for any lawful purpose. No good reason is apparent why the disposition of this fund should not be subject to the restrictions which apply to the disbursement of all public moneys. Certainly there is nothing in the act of assembly to indicate that the plaintiff had any right to it, and its claim thereto must rest upon the action of councils through the ordinance in question. Circumstances might arise in which this fund would be needed for the discharge of the current expenses of the city. If so, it is certainly subject to the disposal of councils. We feel impelled to construe the payment as one requiring the support of an annual appropriation made after consideration by councils of the estimate of the probable receipts and expenditures for the fiscal year.

There is no foundation for the contention that the ordinance created in the plaintiff association a vested right in the fund. It was at most merely an executory gift, subject to revocation, as long as the transfer had not actually been made. As was pointed out in Com. v. Barker, 211 Pa. 610, 61 Atl. 253, the mere fact that the plaintiff association was a volunteer fire company did not make it ineligible for the discharge of the municipal function of protecting the city from fire. But there is a serious question as to the right of the municipality to appropriate public funds to the support of an association over which it has no control or supervision.

It appears from the history of the case that the city of Scranton became a city of the second class in April, 1901, prior to which time its fire department had been a volunteer department. It further appears that the department is now a paid or permanent department, and that, when it became so, the volunteer department vacated the fire houses which were owned by the city, and sold to the city all furniture, fixtures, etc., not re quired by the association in furnishing their club-house, and all connection with or control

over the association by the city was severed. On the organization of a paid fire department the city by ordinance established a pension fund for the benefit of her firemen, under the act of 1901, and appropriated to it the funds in the hands of the city treasurer received under the act of 1895. Prior to the organization of the paid fire department every member of the volunteer force was a member of the Firemen's Relief Association, and entitled to receive benefits. No dues were assessed against him as an individual, but each company was assessed pro rata according to the number of members, which assessment was paid from the treasury of the different volunteer fire companies. The purpose of the plaintiff corporation, as stated in its charter, was "to provide for the maintenance of a society for beneficial or protective purposes to the members from funds collected therein." The qualifications for membership were not fixed by the charter. The by-laws provided that the requisite qualifications for membership are that the beneficiary shall be or have been an active member of the fire department of the city of Scranton and a citizen of the commonwealth of Pennsylvania. There does not appear to have been any provision in elther charter or by-laws giving the city any voice in or control over the management of the association. The by-laws, of course, could be amended at any time by the action of the members, and the "beneficial or protective purposes" of the association extended to others than firemen or ex-firemen. The funds appropriated by the city could, therefore, be used for purposes other than the relief of firemen or ex-firemen, and for the benefit of persons to whom the city owed no duty other than such as was due to every citizen.

No

The words of Chief Justice Lowrie in Phila. Ass'n v. Wood, 39 Pa. 73, with reference to a similar association, are equally applicable here. He said: "This is an association for charitable purposes it is true; but still it is strictly a private corporation. public officer has any official knowledge of its existence, or of its members, organization, or acts. It renders no account of its proceedings or of its funds. It is a close corporation, fixing its own terms of membership, and changing' its organization but not its object, as it pleases." There is a plain distinction in this respect between membership in a voluntary association such as this, and that of a paid fire department, organized and controlled by the city authorities. In the latter case the membership, the discipline, and the management are subject to the regulation of the city. The benefits can be confined to those who have actually rendered service to the city. It is this feature only which distinguishes the payment of such a benefit from the bestowal of a gift or gratuity, which is prohibited by section 7, art. 9, of the Constitution.

The case of Firemen's Fund v. Roome, 93 66 A.-70

N. Y. 313, 45 Am. Rep. 217, relied upon by the court below, and by appellee, seems to be in direct conflict with our own case of Phila. Ass'n v. Wood, 39 Pa. 73. It was furthermore distinguished, and limited in its scope by the New York Court of Appeals, in the later case of Fox v. Humane Society, 165 N. Y. 517, 59 N. E. 353, 51 L. R. A. 681, 80 Am. St. Rep. 767. But, upon the ground that the ordinance did not constitute a valid appropriation for anything more than the current year, and that it was merely an executory gift, subject to revocation at any time prior to the actual transfer, the judgment entered upon the demurrer is reversed.

1. ELECTIONS-REVIEW-FINDINGS OF FACT. On certiorari from a decision under the election laws, the court cannot review the finding of fact, but will inspect the whole record as to the regularity of the proceedings to determine whether the court exceeded its jurisdiction.

2. SAME-REGISTRATION-POWERS OF COURT. A petition to the court of common pleas averred that petitioner had naturalization papers, but had mislaid them and could not find them to present to the board of registration; that thereafter he appeared before the board and produced proofs of his qualifications, including a certified copy of his naturalization papers, but the board refused to register: him. because they had not been produced on one of the registration days. The court ordered his name to be added. He had presented no petition to the commissioners alleging error in the act of the registrar, as authorized by Act Feb. 17, 1906 (P. L. 49), nor did he show that he was prevented from registering by illness or unavoidable absence. Held, that the court of common pleas had no jurisdiction, and its proceedings will be quashed.

Mitchell, C. J., dissenting.

Appeal from Court of Common Pleas, Philadelphia County.

In the matter of William Mulholland. From an order adding his name to the registry list, Clinton Rogers Woodruff and others, registration commissioners, appeal. Reversed.

Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER and STEWART, JJ.

Thos. Raeburn White, for appellants.

POTTER, J. On November 2, 1906, William Mulholland filed a petition in the court of common pleas No. 2, for the county of Philadelphia. in which he averred that he was a qualified naturalized voter of the twentieth division, nineteenth ward, of the city of Philadelphia; that he had in his possession naturalization papers, but had mislaid them, and did not find them in time to present them to the board of registrars; that on October 19, 1906, he appeared in