(107 A.) "It has very generally been held where land is owned in common and one of the tenants with the consent and approval of his co-tenant, in good faith and without embarrassment to the co-tenant, makes substantial and permanent improvements to the land, that in a partition proceeding for a division of the land, the court will as a matter of equity take into consideraproving tenant that half of the land which has tion the improvements, and assign to the imbeen improved where it is practical to do so without prejudice to the interests of the cotenant. Partition of land among tenants in common [ tenant in common, and thus stated the matis an ancient part of the jurisdiction of ter: Courts of Chancery, independent of statutes, and this is true in Delaware. Bradford v. Robinson, 7 Houst. 29, 30 Atl. 670. For many years partition between tenants in common in Chancery was regulated as to procedure by statute, and partition between co-parceners as to intestate land was by statute vested in the Orphans' Court. Recently, by statute, all judicial partitions are had in the Orphans' Court. Even if the Orphans' Court did not have equitable powers in partition independent of statutes, such powers have been expressly given by statute. By section 32, of chapter 95, section 3301, page 1519, of the Revised Code, for the purpose of effectuating the law as to partitions, that court is given "general equity powers" and authority to make orders touching partitions or matters incidental or pertaining thereto, which the right or justice of the cause may demand. Furthermore, by section 3283 of the Revised Code, the proceeds of sale in such causes are to be divided among the parties "according to their several interests and the rules of law and equity." These powers are such as that the Orphans' Court has jurisdiction to determine the issues raised in this partition proceeding. In this State, so far as disclosed, there is no reported decision on the question raised here, but in a partition cause in New Castle County, as yet unreported, Judge Rice considered the general question and gave relief to a tenant in common seeking compensation for what had been done to enhance the value of the land held in common. In 1916, Warner, and others, Receivers of Horrigan Contracting Company, filed a petition for partition of land held by that company and Logue Realty Company as tenants in common, and after the property had been sold by order of the court, the latter company claimed, among other things, that the land in question, an unimproved lot, had been enhanced in value by the filling in thereof by the then tenant in common under whom the Logue Company claimed part ownership. In that case there was an agreement, verbal or otherwise, between those who were the tenants in common at the time the lot was improved, that the one making the improvement should be compensated therefor. It being found by the court that the value of the lot had been increased to a sum in excess of the amount expended in filling it in, the court held that in addition to its one-half of the fund for distribution, the grantee of the improving tenant was entitled to one-half of the cost of the improvement. The decree of distribution, dated March 27, 1917, is recorded in Orphans' Court Record J, volume 2, page 99. The court recognized the general rule on the subject, where there was the consent and approval of the co-tenant of the improving "It has also likewise been held, but not so generally, where the land cannot be equitably divided, and the land is sold under partition proceedings, and one of the tenants has made improvements to the land with the consent of his co-tenant, that the improving tenant will be compensated proportionately for the enhanced value of the land by reason thereof, out of the proceeds of the sale. The reason being that when one of the tenants has by his improvements enhanced the value of land owned in common, without injury or embarrassment to his co-tenant, the other tenant as a matter of equity should contribute his share for the improvements before being allowed to receive the He is not under such cirbenefits of the same. cumstances permitted to receive benefits at the expense of the improving tenant." In the opinion in the case above referred to the court stated correctly pertinent general principles of law which are very firmly es tablished elsewhere both on reason and authority. The questions now raised are different, for here there is a denial of consent of the other co-tenants to the improvements and of knowledge thereof until after they had been made. Also the improvements were made during a life tenancy. These and other disputed, relevant matters make it unwise to consider the principles of law applicable here. [2] It should be stated, however, that where one tenant in common improves the premises the cost of the improvements is not necessarily the measure of his rights to compensation or allowance, but it is the enhancement in value of the premises by reason thereof which is taken into consideration on equitable principle, and this enhancement must be shown. Just what form of relief should be granted, if any, will necessarily be determined after hearing the cause, for there is more than one way of doing justice to a tenant in common who has improved property held in common. [3] As to the method of procedure to ascertain the facts and apply the law, it seems that the wiser, simpler and most satisfactory course is for the court to hear the cause, rather than to appoint commissioners for the purpose to act under instructions as to the law. Therefore, the cause will be set down for hearing by the court on oral testimony produced before it at a time to be fixed. SCHULTZ v. COMMONWEALTH MORT GAGE CO. lowed to intervene in the cause in June, 1919, applied among other things for an order for an election of directors of the company, alleging that no meeting of stockholders had (Court of Chancery of Delaware. July 16, been held according to its charter and by 1919.) The Chancery Court should not, on the application of a stockholder in a corporation pursuant to General Incorporation Act, § 31, order an annual election of directors by stockholders merely because since the last-stated election day designated by the by-laws eight-ninths of the shares of stock voted on the election of directors then have been canceled as illegally issued by judicial decree in another state where the corporation was doing business. 3. EVIDENCE 158(26)-BEST AND SECONDA- The stock ledger of a corporation, under General Incorporation Act, § 29, is the only evidence as to who are stockholders entitled to vote at an election of directors. Suit by Henry F. Schultz against the Commonwealth Mortgage Company. On hearing of the rule issued requiring the defendant company and its receivers to show cause why the chancellor should not summarily order a meeting of stockholders for the election of directors of defendant company. Order de nied. laws, and that the last election was held in January, 1918. In Minnesota where part of the assets of the corporation were located, and where the company was doing business, a receiver had been appointed before the suit for the appointment of the receivers had been begun here, and its affairs were being administered there. In that suit shares of common stock of the company held by one Schafer, aggregating 8,177 shares, were cancelled by order of the Minnesota court made on May 3, 1919. At the hearing of the application for a summary order for the election it was shown that on January 3, 1919, such an election had in fact been held on the day fixed by the bylaws, and that about 9,700 shares of common stock had been voted, including the shares of Schafer. Some trifling irregularities in the procedure at the election are set out in the minutes of that meeting, and were pointed out; but the main contention for a new election was that the voting of the Schafer stock invalidated the election. [1-3] By section 31 of the General Incorporation Act (22 Del. Laws, c. 394), the Chancellor may summarily order that an election be held if an election shall not have been held on the day designated by the by-laws of the company. This power has been exercised and the procedure therefor is shown in the Matter of the Petition of Oliver D. Jackson, as Stockholder of the National Lumber Vulcanizing Corporation, 9 Del. Ch. 279, 81 Atl. 992. But it is a summary order, and when an election has in fact been held either on the day designated by the by-laws, or at some other day prior to the application to this court, then this court has not power to order an election. Certainly it should not on the election when the only ground therefor is present application order another annual the fact that since the last stated election day eight-ninths of the shares of stock voted there had by a judicial decree been cancelled as illegally issued. Such is not the purpose of this section of the act. Besides, the stock Herbert H. Ward, of Wilmington, for peti- ledger is the only evidence as to who are tioner. In the matter of the rule issued requiring the receivers and the defendant company to show cause why the Chancellor should not summarily order a meeting of stockholders for the election of directors of the defendant company. stockholders entitled to vote at such election. Daniel O. Hastings, of Wilmington, for re- Section 29 of General Incorporation Act. ceivers. THE CHANCELLOR. Receivers of the Commonwealth Mortgage Company, a Delaware corporation, having been appointed by this court, a stockholder who had been al The Chancellor will not summarily order that an annual election of a corporation be held if it appears that one has in fact been held on the day designated by the by-laws, though it appear that since such election shares voted had been judicially cancelled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (Court of Errors and Appeals of New Jersey. the Pennsylvania Railroad Company to reJune 20, 1919.) cover damages for personal injuries. Ver1. APPEAL AND ERROR 756-BRIEF NOT ment was entered for $6,000, all above that dict for plaintiff for $9,000, on which judgSIGNED BY PARTY-CONSIDERATION. Where a case was marked to be submitted on briefs, and that for appellants was not signed by counsel, it could not be considered. 2. APPEAL AND ERROR 766 UNSIGNED BRIEF OF APPELLANT-AFFIRMANCE. Where the brief for appellants cannot be considered, because not signed by counsel, the case stands as though the appeal had not been moved, and respondents are consequently entitled to a decree of affirmance. Appeal from Court of Chancery. Suit by William A. Kelly and others against Barnet Chinich and others. Decree for complainants, and defendants appeal. Affirmed. amount having been remitted, and defendant appeals. Affirmed. Argued before MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Francis B. Biddle and Sharswood Brinton, both of Philadelphia, for appellant. Daniel G. Murphy and Isaac D. Levy, both of Philadelphia, for appellee. PER CURIAM. While a passenger in a Pullman car attached to one of defendant's trains, plaintiff saw an iron washer, weighing 1 pound 11 ounces, come from the engine of another train, marked with defendant's name, going in the opposite direction, on the next track. This washer crashed through Charles M. Myers and Milton M. Unger, the window at which plaintiff was sitting both of Newark, for respondents. PER CURIAM. [1, 2] This case was marked to be submitted on briefs, and briefs came in on both sides. That for the appellants, however, is not signed by counsel, and cannot be considered. The case stands as though the appeal had not been moved, and respondents are consequently entitled to a decree of affirmance. Hazard v. Phoenix Woodworking Co., 78 N. J. Eq. 568, 80 Atl. 456. (264 Pa. 443) DE BOUVIER v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. April 21, 1919.) CARRIERS 320(11) WHETHER PASSENGER and struck him a violent blow in the back of the neck, causing serious injuries. He sued ered a verdict, upon which judgment was enfor damages, alleging negligence, and recovtered. Defendant has appealed. A properly qualified witness for plaintiff identified the washer as being part of a certain type of engine owned by defendant company. He also explained that washers of this character would fly off when the cotter pins which held them in place wore away, and that such wearing took place through vibration. Defendant produced no evidence as to inspection, or upon any other point in the case, nor did it deny that the washer came from its engine; on the contrary, the conductor in charge of the train upon which plaintiff was riding testified that the article in question, produced at the trial, was the property of his employer. The issues involved were submitted in a charge which is not complained of, and the Where a passenger, injured by an iron wash-evidence is sufficient to sustain a finding that er coming through a car window, testified that it came from a passing engine marked with defendant's name, and where it was identified by a qualified witness as being the type used on the company's engines and likely to fly off, whether the injury resulted from defendant's negligence as to a break in an appliance connected with the operation of its road was for the jury. plaintiff's injury resulted from a break in an appliance connected with the operation of the defendant railroad; hence the question of negligence was for the jury. See Pa. R. R. Co. v. MacKinney, 124 Pa. 462, 17 Atl. 14, 2 L. R. A. 820, 10 Am. St. Rep. 601, where the relevant rules of law are discussed. Judgment affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (264 Pa. 447) to elicit by cross-examination a more full account of the accident, to the effect that, just as the horse, which was being driven by REIBSTEIN v. ABBOTT'S ALDERNEY DAIRIES. (Supreme Court of Pennsylvania. April 21, the witness on a "tight line" and "under full 1919.) 706(6) 1. MUNICIPAL CORPORATIONS In action for death of plaintiff's husband, who was struck, knocked down, and fatally injured by a horse attached to defendant's delivery wagon, where the only witness, defendant's driver, called for plaintiff, testified that just as horse, under full control, came near motor truck at rear of which deceased was standing, the mudguard of another automobile, unexpectedly turning corner, struck the horse, which reared and ran against deceased, a nonsuit was properly entered. 2. WITNESSES 269(6)-DEFENDANT'S DRIVER CALLED BY PLAINTIFF PROPERLY CROSSEXAMINED BY DEFENDANT. In action for death of plaintiff's husband from injury by a horse attached to defendant's delivery wagon, where the only witness called for plaintiff, the defendant's driver, testified that horse's collar struck plaintiff, his crossexamination by defendant to elicit a fuller account of the accident was proper. Appeal from Court of Common Pleas, Philadelphia County. control," came near the motor truck, anothér truck." * * The cross-examination was entirely proper (Vautier v. Atlantic Refining Co., 231 Pa. 8, 14, 79 Atl. 814; Quigley v. Thompson, 211 Pa. 107, 60 Atl. 506; Glenn v. Phila. & West Chester Traction Co., 206 Pa. 135, 55 Atl. 860; Smith v. P. T. Co., 202 Pa. 54, 57, 58, 51 Atl. 345; Jackson v. Litch, 62 Pa. 451, 455, 456), and, either with or without the testimony thus elicited, defendant's negligence was not shown; hence a nonsuit was justified, and the court below did not err in refusing to remove it. Judgment affirmed. (264 Pa. 422) In re KESSLER'S ESTATE. Trespass by Dina Reibstein against Abbott's Alderney Dairies to recover damages for death of plaintiff's husband. From an (Supreme Court of Pennsylvania. April 21, order refusing to take off a compulsory nonsuit, plaintiff appeals. Affirmed. Argued before MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Victor Frey and Augustus Trask Ashton, both of Philadelphia, for, appellant. CONVERSION 1919.) 17-WHEN DIRECTION TO SELL CONVERTED REAL ESTATE. Where testator gave his estate to executors, in trust to pay income to his wife for life, and on her death to his brother for life, and authorized the executors, after the death of his Owen J. Roberts, of Philadelphia, for ap- wife and brother, to sell and dispose of the espellee. tate, the direction to sell worked a conversion of real estate into money, which, after death of wife and brother, was properly distributed as such. Appeal from Orphans' Court, Philadelphia County. PER CURIAM. On May 4, 1917, about 9:30 a. m., decedent's husband, Abraham Reibstein, while standing upon a public highway in the city of Philadelphia, at the rear end of a motor truck belonging to his father, John H. Heiss appeals from a decree diswas struck, knocked down, and severely injured by a horse attached to one of defend- missing exceptions to adjudication in the ant's delivery wagons; as a result, he subse-estate of Thomas Kessler, deceased. Appeal quently died. dismissed, and decree affirmed. [1, 2] Defendant's driver, the only eyewit- Exceptions to adjudication. From the recness of the accident, was called by plaintiff ord it appeared that Thomas H. Kessler and asked as to his employment, the kind of died on May 2, 1904, leaving a will and codhorse and wagon he was driving, where icils, by which he devised and bequeathed Reibstein was standing, and what the latter his residuary estate to his executors, in trust was doing immediately before the collision; to pay the income to his wife, Clara E. Kessfinally, this question was put, "And what part ler, for the term of her life, and upon her of your horse struck him?" To which he decease to pay the income to his brother, replied, "Collar." Counsel for defendant George F. Kessler, if living, for the term of then proceeded, against plaintiff's objection, his life, and upon the decease of both his (107 A.) said wife and brother. The fifth clause was rapidly moving west-bound taxicab, which withas follows: out warning passed close to car entrance. Held, defendant's negligence, aside from traffic regulations, was for jury. "For the better management and final distribution of my estate I authorize and empower (and after the decease of my wife and brother, whichever shall last happen, order and direct) my said executors and the survivor of them to sell and dispose of the whole or any part of my real estate," etc. MOTION FOR NEW TRIAL REVIEWABLE FOR The action of the trial court in passing on Clara E. Kessler, the widow, died May 23, 1916, having been predeceased by George F. Kessler, the brother, who died February 3, 1915, so that the trust has terminated. The fund before the court includes only the sum The appellate court will not consider an asawarded by the board of viewers for dam-signment of error based on alleged improper reages for taking ground of the decedent in marks of counsel to the jury, where no objection or exception was taken thereto at the the opening of Broad street through real time. estate of which he died seized. The court distributed the fund as personal property. Exceptions to the adjudication were dismissed. John H. Heiss appealed. Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Isaac G. Gordon Forster, Abraham, Wernick, and Rowland C. Evans, all of Philadelphia, for appellant. Appeal from Court of Common Pleas, Philadelphia County. Trespass by Jerome F. McEvoy against the Quaker City Cab Company to recover damages for personal injuries. Verdict and judgment for plaintiff for $12,500, motion for judgment n. o. v. denied, and defendant appeals. Affirmed. Argued before BROWN, C. J., and FRACharles I. Cronin and Owen J. Roberts, ZER, WALLING, SIMPSON, and KEPboth of Philadelphia, for appellee. PER CURIAM. During the continuance of the trust for the benefit of the widow and brother of the testator the sale of his real estate was within the discretion of his ex=ecutors, but his unqualified direction was that, upon the death of the survivor of them, they should sell it for the purpose of distribution. That this converted it into money is beyond question, and it was so properly distributed by the court below. Laird's Appeal, 85 Pa. 339; Dull's Estate, 222 Pa. 208, 71 Atl. 9, 128 Am. St. Rep. 796. 8 Appeal dismissed, and decree affirmed, at appellant's costs. (264 Pa. 418) MCEVOY v. QUAKER CITY CAB CO. 1. MUNICIPAL CORPORATIONS 706(6) Plaintiff's evidence, though contradicted, was that he was standing at southeast corner of street intersection and walked north on eastbound track; that motorman of a west-bound car on north track, which stopped just east of intersection, signaled him to go on; and that he passed before the car and was about to enter its front door when he was struck by a HART, JJ. Robert P. Shick and Charles F. Da Costa, both of Philadelphia, for appellant. Bertram D. Rearick, of Philadelphia, for appellee. WALLING, J. On the morning of January 15, 1918, plaintiff while attempting to board a west-bound trolley car in Market street, at the intersection of Nineteenth street, Philadelphia, was injured by one of defendant's taxicabs, for which he brought this suit. The evidence was conflicting. That for plaintiff tended to show he was standing on the southeast corner of the street intersection, and walked north onto the east-bound track, when the motorman of the west-bound car, which was on the north track and had stopped just east of Nineteenth street, signaled plaintiff to go on, and he passed before that car and was about to enter it at the front door on the north side, when he was knocked down and seriously injured by defendant's rapidly moving west-bound taxicab, which without warning passed close to the entrance of the trolley car. Defendant's evidence was to the effect that the trolley car did not come to a full stop, and plaintiff while crossing ahead of it slipped on the icy street and fell in front of the slowly moving taxicab, which stopped within two or three feet, and but slightly touched him, and that the taxicab never came up with the front end of the trol For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |