In 1912, desiring to widen and straighten and otherwise improve its roadbed, defendant purchased from plaintiff a strip of land through his farm about 265 feet in width. The deed therefor, which was executed by plaintiff and his wife, contained, among other provisions, the following clause: misleading, nothing which denied to the jury ford county and through plaintiff's farm. their exclusive right of making their own findings with respect to the facts of the case. Of this exclusive right they were several times reminded in the charge. If there was leaning toward the defendant-and that there was is apparent-it was no more than was due the manifest strength of the defendant's case. The trial judge was as impartial in the "In case the wells and springs situate upon conduct of the case throughout as a proper the premises of the first parties shall become regard for distributive justice would permit. useless or impaired by reason of the construcThere is nothing in the remaining specifi-veyed, then in such case the said party of the tion of any railroad on the lands hereby concations of error that calls for consideration. second part, for itself, its successors and assigns, The assignments of error are overruled, and agrees with the said parties of the first part, the judgment is affirmed. their heirs, executors, administrators, and assigns, that it, the said party of the second part, its successors and assigns, shall and will immediately enter upon the remaining property of the first parties, and, at a point or points designated by them, or either of them, drill new wells sufficient in number and size to furnish a sufficient quantity and a good quality of water to meet the needs and demands of the houses and barns of the parties of the first part." (250 Pa. 51) BEEDY v. NYPANO R. CO. (Supreme Court of Pennsylvania. May 26, 1915.) 1. RAILROADS 72-RIGHT OF WAY-COVE NANTS-PERFORMANCE. Where a railroad company acquired a right of way by deed poll requiring it, in case the wells and springs on the grantor's land should become useless or impaired, to drill new wells sufficient in number and size to furnish a sufficient quantity and a good quality of water to meet the needs and demands of the houses and barns on the land of the grantor, and the construction of the right of way destroyed the springs used to supply the grantor's house with water, specific performance of the covenant will be granted, notwithstanding there were springs which supplied the barns with water not fit for household use. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 168-178; Dec. Dig. 72.] 2. DEEDS 67-ACCEPTANCE-EFFECT. When accepted, a deed poll is the mutual act of both parties, the same as if signed by both, and the grantee takes the land subject to the burdens imposed by the grant. [Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 145-148; Dec. Dig. 67.] At the time the deed was executed the buildings on plaintiff's farm consisted of a 14-room dwelling, a tenant house, two barns, and other outbuildings. The water was sup plied from two wells and two springs. One well located at the dwelling house supplied water for general household use, and was of excellent quality and of ample quantity for present and future needs of the house for domestic purposes. Another well was located in the barn, and this, with the two springs, furnished sufficient water for general farm and stock use. In the construction of its new roadbed through plaintiff's farm, defendant excavated to a depth of about 70 feet; this excavation coming within a few hundred feet of the well, which supplied water for domestic purposes, located at plaintiff's dwelling house. This well was about 21 feet deep, 3. COVENANTS 21 CONSTRUCTION BY THE and as a result of defendant's excavating its PARTIES. Where the language of a covenant is ambig-source of supply of water, and also that of uous, the construction placed thereon by the parties is the best evidence of their intention, though it might not be the construction which, from inspection of the writing alone, would be accepted. one of the springs, was cut off, which not only impaired but rendered both useless. The quantity of water at the well located in the barn, and also at the other spring, has not been affected, and both continue to furnish sufficient water to supply the needs of plaintiff's houses and barn. The quality Appeal from Court of Common Pleas, of this water, however, is such as to render Crawford County. [Ed. Note. For other cases, see Covenants, Cent. Dig. § 20; Dec. Dig. 21.] Bill by W. R. Beedy against the Nypano Railroad Company. From a decree for complainant, defendant appeals. Affirmed. Argued before MESTREZAT, ELKIN, STEWART, MOSCHZISKER, and FRAZER, JJ. it generally unfit for household uses. In the fall of 1912, at the request of plaintiff, who had filed a bill in equity to compel the performance of the covenant above referred to, defendant entered upon plaintiff's property and drilled a well to the depth of 58 feet adjoining plaintiff's dwelling, which Geo. F. Davenport, of Meadville, and W. | failed to procure a sufficient quantity of waS. Throop, of New York City, for appellant. C. Victor Johnson and John O. McClintock, both of Meadville, for appellee. ter suitable for domestic use. In June, 1913, the present bill was filed, and in the spring of 1914 defendant again attempted to comply with the conditions of the deed by drilling FRAZER, J. [1] Defendant owns and to a depth of 158 feet the well which had operates a railroad running through Craw-been previously started, without, however, securing an additional supply or better qual- | in effect is one which requires that plainity of water. After hearing the testimony in the case, a decree was entered by the court below directing defendant to drill on plaintiff's land at such points as might be designated by him such well or wells of such number and size as to furnish water in sufficient quantity and of good quality to meet the needs and demands of plaintiff's houses. From this order defendant appealed, and now contends that, since the wells and springs on plaintiff's farm were so grouped together in the covenant sued upon, and since they, as a group, still furnish sufficient water and of the same quality as was required by the plaintiff's needs at the time the deed was executed, therefore there has been no breach of the covenant sued upon, and, further, that a court of equity is without jurisdiction of the matter. Viewing the covenant in the light of the circumstances of the parties, there can be no doubt as to its construction. The location of the new road was, of course, fixed before the deed was executed. The probable result of an excavation in such close proximity to the well located at plaintiff's dwelling was anticipated, and it was clearly for the protection of that well in particular, which supplied practically the only pure drinking water, that the covenant was inserted. It would require a strained construction to say that if, at the time the covenant was made, there was another well at some remote part of the farm producing water sufficient in both quantity and quality to render it suitable for domestic purposes, plaintiff should be obliged to transport the water of that well to his dwelling, and continue to do so as long as it was sufficient for the purpose, notwithstanding the covenant on the part of defendant to drill new wells in sufficient number and size to furnish a proper quantity and quality of water for household use "in case the wells and springs situate upon the premises should become useless or impaired by reason of the construction of the railroad." Such interpretation would render the covenant useless, because of the improbability of the excavation in any way affecting a well or spring located at some distance from the dwelling. The covenant tiff's water supply be not substantially interfered with in any manner by the work done by defendant, and, if it is, that defendant will repair the damage as required under its covenant. [2, 3] It is immaterial that the deed was not signed or sealed by defendant, the grantee. Having accepted the deed, with all its terms and conditions, and entered into possession, it took the property subject to the burden imposed upon it, and is bound to perform the conditions therein stipulated. The general rule is that a deed poll, when accepted by the grantee, becomes the mutual act of the parties, the same as if signed by both. Blood v. Crew-Levick Co., 177 Pa. 606, 35 Atl. 871, 55 Am. St. Rep. 742. A covenant of this nature is one running with the land. Kelly v. Nypano R. R. Co., 200 Pa. 229, 49 Atl. 779, 86 Am. St. Rep. 715. Nevertheless, if in this case it would not run with the land, the proceeding is between the original parties to the deed, and the question, therefore, becomes immaterial. If the language of the covenant be considered ambiguous, the parties themselves have put their own construction upon it by what has been done in the past. Two attempts have been made by defendant to supply a new well at plaintiff's dwelling house. This is the best evidence of the intention of the parties, and the courts will adopt such construction. Coleman v. Grubh, 23 Pa. 393; People's Natural Gas Co. v. Braddock Wire Co., 155 Pa. 22, 25 Atl. 749. Even though it might not be the one which from inspection of the writing alone would be accepted. Wright v. Monongahela Natural Gas Co., 2 Pa. Super. Ct. 219. The act of June 7, 1907 (P. L. 440; 5 Purd. 5465), provides that when a bill in equity has been filed, and defendant desires to question the jurisdiction of the court on the ground that the proceeding should be at law, he must do so by demurrer or answer. No demurrer was filed in the court below, nor does the answer object to the form of proceeding, or allege that equity has no jurisdiction. It is therefore unnecessary to discuss this question. The decree is affirmed, at the cost of appellant. (11 Del. Ch. 54) 1. RECEIVERS ACTION. 165-COLLECTION OF ASSETS A rule to show cause should not be substituted for an action at law by receivers to collect a debt due the corporation at the time of their appointment. [Ed. Note. For other cases, see Receivers, Cent. Dig. § 318; Dec. Dig. 165.] 2. RECEIVERS 72-COLLECTION OF ASSETSRULE TO SHOW CAUSE-STATUTE. lution the sum of $3,000 was afterwards paid to the Farmers' Bank, thereby, it was averred, depriving the receivers of possession and control of an asset belonging to the insolvent company and which should have been paid to the receivers. As prayed for, a rule was granted on June 22, 1815, requiring the Farmers' Bank to appear on September 10, 1915, and show cause, if any there be, why it should not be directed to pay the money received by it to the receivers. Act Gen. Assem. May 19, 1913 (27 Del. At the hearing of this rule the solicitor Laws, c. 194), vests in receivers of a company for the bank filed a motion to dismiss the pethe title to all its assets by operation of law and tition for the reasons that the receivers had without a transfer, except real estate outside of the state. After the appointment of a receiver not suffered any injury, or sustained any for a contracting company, the levy court of a damages, or been deprived of the possession county directed payment to a bank, the com- or control of any asset by or through any pany's assignee, of the retained percentages on act of the bank, and also that as there was several roads constructed by the company, whereupon the receiver obtained a rule requir- a plain and adequate remedy at law a court ing the bank to show cause why it should not of equity had not jurisdiction. pay over such money to him. Held, that the receiver was not remitted to his action at law, and that the proceeding was proper, as affording a prompt hearing to disclose the real facts and assist the court in fully administering all the assets without unnecessary delay. [Ed. Note.-For other cases, see Receivers, Cent. Dig. §§ 129, 130; Dec. Dig. 72.] Action by Caleb N. Price against the Horrigan Contracting Company, in which receivers were appointed for defendant company. On petition of the receivers for a rule requiring the President, Directors, and Company of the Farmers' Bank of the State of Delaware to show cause, if any, why it should not pay to the receivers certain sums of money paid to it by the levy court of New Castle county. Motion to dismiss petition and discharge the rule to show cause denied, and rule to be set for hearing. Statement of the Case. Marvel, Marvel & Wolcott, of Wilmington, for petitioners. Henry Ridgely, of Dover, for Farmers' Bank. THE CHANCELLOR. In support of the Imotion to dismiss the petition the solicitor for the bank cited authorities for the motion, urging chiefly that the receivers had been deprived of no tangible property, and that as the payment by the levy court was officious, the receivers still had a remedy against that body and so there had been no interference with the possession of the receiver of any asset of the company. [1] An examination of the cases does not satisfy me that the contention of the bank is tenable. The case most relied on was that of Receiver of State Bank v. First National Bank of Plainfield, 34 N. J. Eq. 450. But there the main reason for denying relief to the receiver by a rule to show cause based on a petition was that by the practice in New Jersey a bill was proper in such cases, and not a petition. The other cases cited do not apply, and it is not necessary to cite authority for the principle that a rule to show cause should not be substituted for an action at law by the receivers to collect a debt due the corporation at the time of the appointment of the receivers. The receivers of the Horrigan Contracting Company filed a petition setting forth that at the time of their appointment the levy court of New Castle county held $3,710.85 pursuant to five contracts under which the company had built certain county roads, and by which contracts 5 per cent. of the contract price was withheld to cover any repairs which were required to be made within a year from the completion of the road. This period of one year had expired [2] The solicitors for the receivers cited as to four of the contracts at the time of authorities to show that this was clearly an the appointment of the receivers, and as to illustration of the well-determined and funthe fifth contract about seven months there-damental principle that the court appointafter. On December 29, 1914, the levy court ing a receiver of an insolvent corporation of New Castle county passed a resolution will assist the receiver in gaining possession directing payment to the Farmers' Bank, as- and retaining control of all the assets of the signee of the Horrigan Contracting Com-insolvent company for the purpose of a proppany, of $3,000 part of the sum of $3,710.85 er and orderly administration thereof by the "due and owing to the said Horrigan Con- court for the benefit of all concerned, and tracting Company as retained percentages will require a payment, or delivery to the reon the several roads constructed by the ceiver, of any moneys or assets of the comsaid company," and applied the balance of pany which by interference with the receivthe sum, $710.85, to defray the cost of er's rights have been taken by any other perrepairs to the roads. Pursuant to this reso-son. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes a statute in this state vesting in receivers the title to all the assets of the company by operation of law and without a transfer, except real estate outside the state. Chapter 194, volume 27, Laws of Delaware, p. 479, approved March 19, 1913. This, of course, does not invalidate any liens or pledges of such property. One of the authorities submitted seems In addition to the general powers incident clearly to settle the question here considered, to all receivers under general rules there is viz., the case of Bien v. Robinson, Receiver of Haight & Freese Co., 208 U. S. 423, 28 Sup. Ct. 379, 52 L. Ed. 556 (same case in Circuit Court, Bowker v. Haight & Freese Co., 146 Fed. 257). After receivers of the corporation had been appointed by the United States Circuit Court and an order made enjoining all persons from paying over or transferring any money or assets of the Company to any person other than the receivers, an officer of the company gave to Bien a check drawn on a bank in which moneys of the company were on deposit. Bien having learned of the appointment of the receiver, and of the order, had the check certified, indorsed it and collected it through a third person. Thereupon the receiver filed a petition and thereon a rule was issued by the court appointing the receiver requiring Bien to show cause why an order should not be made requiring him to pay to the receiver the money so collected on the check, with interest. The application was heard on affidavit and an order made requiring payment to the receivers with interest, within ten days, and to this Bien sued out a writ of error to the United States Supreme Court. One of the grounds of error was that the right of the receiver to the fund could not be determined in a summary proceeding, but could only be adjudged in an action at law to recover the proceeds of the check. This contention the court said was "manifestly frivolous," saying: "Reduced to its last analysis, the contention of this branch of the case is that a court of equity, which in the due exercise of jurisdiction had appointed receivers of the assets and property of the corporation and enjoined interference by others with such property, was without power, by summary process, after due notice and opportunity to be heard, to compel a repayment by one who, with knowledge of the order of injunction and in violation of its terms, took in satisfaction of an indebtedness from a debtor to the corporation, property forming part of the assets of such corporation. We think the contention and the assignments of error based thereon are so manifestly frivolous as to be utterly insufficient to serve as the foundation for a writ of error." In that case there was an order enjoining every person from transferring any money of the company to any one other than the receivers, and this fact was considered by the court, but whether it was a necessary, or even important, fact does not appear. Evidently the court based its decision on the interference with the administration of the affairs of the company, and not on a disobedience of its injunctive order. It can be readily believed, too, that the court would still have regarded as manifestly frivolous a similar contention in a case where there was no such injunctive order, but where by statute the title in all the property and assets of the insolvent company is vested in a receiver appointed for it. It is urged that there has been no interference with the administration of the estate by the receivers, and that the receivers still have the same rights against the levy court to recover the money officiously paid to the Farmers' Bank. But the situation has been changed, for it might be assumed that but for the action of the bank in securing part of the money due the Horrigan Contracting Company, the levy court would have paid the money to the receivers without suit, whereas now it will necessarily resist payment, and if there be any lack of speedy legal remedy to recover from the levy court the money, the obstacles may be increased. In this case it should be noted that one of the two receivers is the cashier of the Farmers' Bank. The proceeding taken is proper, for it gives a prompt hearing to reach the real facts and assists the right and duty of the court to fully administer all the assets of the company without unnecessary formalities or delays. Because the New Jersey court felt bound by an existing practice to have the relief by a bill, does not prove that the proceeding by a rule to show cause as approved by the Supreme Court of the United States is not as suitable and proper, and on the authority of the latter case alone, this court may rely in this matter. For these reasons the motion to dismiss the petition and discharge the rule will be denied, and the rule will be set down for hearing at an early date. (11 Del. Ch. 38) FELL v. SECURITIES CO. OF NORTH AMERICA. July 29, (Court of Chancery of Delaware. 1915.) BUILDING AND LOAN ASSOCIATIONS 42 LOAN-INSOLVENCY-EQUITABLE SET-OFF. savings issued cumulative bonds requiring a A company organized to invest individual specified number of monthly payments, after which it agreed to pay the holder a specified sum of money, together with the bond's share of the accumulations in its profit fund, to be not less than 3 per cent. upon the installments paid and to arise from net gains from withdrawal, discounts, transfer fees, fines, and forfeitures, net interest earnings in excess of 3 per cent. on the reserve, which consisted of such amounts apportioned from the payments as, together with interest at 3 per cent., compounded annually, would equal the guaranteed sum at maturity, and to loan the holder upon interest an amount determined by a table of values contained in the bond. A purchaser, or subscriber, made payments for 10 years on the company's I said bonds at their maturity in accordance with agreement to pay him $3,000 with accumula- their denomination." tions, and thereafter borrowed $4,488 upon his note and the security of the bonds, which, with additions, were worth more than the debt.' Held that, as all the bondholders, including those who had not borrowed from the company, had lost by its insolvency and receivership, the holder was not equitably entitled to set off his payments against the loan or the interest thereon, or to have the balance of his claim declared a debt against the company. Harriet H. D'Olier, the petitioner, became the purchaser of, or subscriber for, two of said bonds, obligating herself to pay installments of $25 monthly on each bond for 120 months, the company agreeing to pay her $3,000 at the expiration of that time, together with the accumulations as above stated. On February 2, 1914, the petitioner borrowed $4,488.17 from the company, gave her promissory note therefor, assigned her two bonds to the company as collateral security, paid Action by William F. Fell against the Se-interest on the amount borrowed to and incurities Company of North America, an in- cluding August 2, 1914, and after the apsolvent, in which Harriet H. D'Olier peti-pointment of the receiver filed her claim to tioned for leave to participate in the dis- participate in the distribution of the assets tribution of the company's assets and for an of the company based on said bonds, and the equitable set-off. Petition denied. receiver has demanded payment of the interest on the loan. [Ed. Note. For other cases, see Building and Loan Associations, Cent. Dig. §§ 63, 66, 86-88; Dec. Dig. ~42.] Petition for set-off. The Securities Com pany of North America was incorporated un- of the bonds and accumulations to their credIt is alleged in the petition that the value der the laws of this state in 1904 for the it in the profit fund at the time of the appurpose of collecting and investing savings of individuals who desired to participate in basis of 3 per cent. per annum upon the inpointment of the receiver, calculated on the the plans of the company, and engaged in business until August 25, 1915, when pur- that the equitable value of said bonds, ascerstallments paid, amounted to $6,192.44, and suant to action of two-thirds of all the stock-tained in accordance with the provisions of holders it was dissolved, and on September the terms and conditions of the bond under 22, 1914, the Wilmington Trust Company the title "Reserve," at the time of the apwas appointed receiver to wind up the affairs pointment of the receiver, amounted to $5,of said company. 337.74. While so engaged in business the company issued what was called "cumulative bonds," section 1 of the terms and conditions of which required payments to be made monthly in advance, or, at the option of the holder, to be made quarterly, semiannually, or annually, until a specified number of monthly payments were made, at the expiration of which time the company agreed to pay such holder a specified sum of money, together with the "bond's share of the accumulations then to its credit in the profit fund, to be not less than per cent. per annum upon installments paid." After payments for 12 months had been made the company agreed to loan the bondholder, with interest payable in advance at the rate of 6 per centum per annum, an amount specified in a "table of values," included in the bond. The other terms and conditions of the bond affecting the questions here raised are as follows: The prayers of the petition are that the sum of $6,192.44, or that the sum of $5,337.and that whatever sum is so decreed may be 74, may be decreed to be due the petitioner decreed to be a set-off against the claim of the receiver on account of the loan and interest thereon from August 2, 1914, to the date of the appointment of the receiver on the claim filed by the petitioner may be deSeptember 22, 1914, and that the balance of termined to be a debt due the petitioner from the company. The matter was heard on petition, no answer thereto having been filed by the re ceiver. Marvel, Marvel & Wolcott, of Wilmington, for petitioner. Ward, Gray & Neary, of Wilmington, for receiver. THE CHANCELLOR. The petitioner as "Section 2. Reserve. The reserve maintained the holder of two of the cumulative bonds hereon, which belongs exclusively to this bond, shall consist of such amounts apportioned from of the insolvent company seeks an application the periodical payments hereon, as together with of the well-settled general principle of equiinterest at the rate of three per cent. (3%) com- table set-off. The question, however, is as pounded annually, will equal the principal sum to the application of the principle here, for guaranteed at maturity. "Section 3. Profit Fund. The profit fund aris- its applicability depends upon the facts in ing from bonds of this class shall consist of all each case. Of the cases cited to support that net gains from withdrawal discounts, transfer principle, the decision of the Supreme Court fees, fines and forfeitures, all net interest earn- of the United States in Carr v. Hamilton, ings in excess of three per cent. (3%) per annum on the reserve of said bonds, and all net 129 U. S. 252, 9 Sup. Ct. 295, 32 L. Ed. 669, is interest earnings on said profit fund. Said prof- the closest. Hamilton had an endowment it fund shall belong exclusively to said bonds, and except as herein provided shall not be used policy, payable at a certain time at all for any other purpose whatever; and, as deter- | events, or sooner in case of his death, and mined by the company, shall be distributed to by it the insured agreed to pay ten yearly |