ing and plaintiff's warehouse is about LANCASTER LAW REVIEW. three feet. This was sufficiently wide for safety when it was first built, but VOL. XXXII.] FRIDAY, JULY 2, 1915. [No. 35 the increased size of cars and locomo tives now used, makes it too narrow, and thus dangerous to the defendant's em Common Pleas--Equity. ployees and property. Weidman v. Pennsylvania Railroad Co. Siding-Right to change. A railroad company has not only a right to change or abandon a siding which has become dangerous, but it is its duty to do so, no matter how it affects the business of an adjoining coal and lumber yard and warehouse property which has had the use of it for thirty-nine years. If the defendant, as a public-service corporation, is not performing a duty which it owes to the public, the proper remedy of the plaintiff, as one of that public, is before the Public Service Commission. Motion to dissolve preliminary injunction. C. P. of Lancaster Co., Equity Docket No. 6, page 65. B. F. Davis, for plaintiff. May 22, 1915. Opinion by HASSLER, J. The following are found to be the facts from the bill, answer and testimony. 1. The plaintiff is the owner of a tract of land in East Earl Township, located along the line of the defendant's railroad tracks, upon which is erected a lumber shed, coal yard, feed and grain warehouse, and other improvements. The warehouse is located partly upon the defendant's right of way. 2. The plaintiff uses the siding of the said railroad company, running from a point a short distance west of his warehouse to a point a short distance east of it, in and about the business he does at his warehouse and in his coal and lumber yards, in handling and unloading grain, feed, coal, lumber, and other commodities. The said siding is upon the defendant company's right of way, is owned and has always been maintained by it. The clearance between the sid 3. The said siding has been located as it is at present for thirty-nine years. It has been used by the predecessors in title of the plaintiff and by the plaintiff during all that time. The plaintiff has used it for about sixteen years. 4. The defendant is about to remove a portion of the said siding in front of and west of the plaintiff's warehouse, and permanently throw it out of service because it is dangerous on account of its being too close to the plaintiff's warehouse. Such removal will cause the plaintiff great inconvenience. 5. The right of way upon which the defendant's track and siding and a portion of plaintiff's warehouse are located was acquired by the East Brandywine & Waynesburg Railroad from Charles Sweigart, a predecessor in title of plaintiff's property, by release or deed dated August 3, 1876, which was recorded on December 1, 1876, in which it is agreed, among other things, that the East Brandywine & Waynesburg Railroad, their successors and assigns shall never be required to erect fences along said. right of way, and "that no non-user of the above described piece or strip of land or any part or portion thereof by the said East Brandywine & Waynesburg Railroad Company, their successors or assigns, or no user, occupation or possession thereof or of any part thereof by them, the said East Brandywine & Waynesburg Railroad Company, whether by residence, cultivation, enclosure or otherwise, for any period of time whatever, whether for twenty-one years or longer, shall in any manner affect the right or title of the said East Brandywine and Waynesburg Railroad Company, their successors and assigns, to the entire and exclusive possession of the same." The defendant Company is the successor in title to all the rights, privileges and franchises of the East Brandywine & Waynesburg Railroad. CONCLUSIONS OF LAW. The siding which is the subject of dispute here is exclusively the property of the defendant Company, and located on its own right of way. It has power to change it for any purpose, or even to abandon it, and where a change or abandonment is necessary for the purpose of removing a dangerous condition, it is its duty to do this no matter how it affects the plaintiff's business: L. & N. E. R. R. Co. v. D. L. & W. R. R. Co., 240 Pa. 401; Ridgway v. P. & R. R. R. Co., 22 D. R. 739. The plaintiff has shown no right of property in the siding, nor anything that would prevent the defendant company from using its property as it desired to do. If as a public service corporation it is not performing a duty which it owes to the public, or the plaintiff as one of that public, his remedy is before the Public Service Commission, a tribunal created to pass upon such questions. His right, however, cannot be tried in this Court in such a proceeding as this: Bellevue Boro v. Ohio Valley Water Co., 245 Pa. 114. We, therefore, dissolve the preliminary injunction. Common Pleas--Law Lancaster Trust Company v. Martin. Promissory note-Holder in due course -Knowledge of as to defense-Affidavit of defense. In an action by the holder in due course of a promissory note against the maker, an affidavit of defense is insufficient which avers that the note was given in payment of certain bonds which were never delivered, and the plaintiff knew of this fact and therefore accepted the note as collateral for a larger note known as a syndicate note, and the defendant never authorized the payee to endorse it over to any one, but understood it was to be returned to him unless he received the bonds. The bona fide holder of a negotiable note for value without notice can recover it, notwithstanding he took it under circumstances which ought to excite the suspicion of a prudent man. Nothing but clear knowledge or notice, fraud or mala fides can impeach the prima facie title of a holder of negotiable paper taken before maturity. It is asserted that the note was purchased by the plaintiff from The Union Irrigation Company for a valuable consideration before maturity, but it was not paid when it became due. The defendant filed an affidavit of defense. While admitting in it that he executed the note to The Union Irrigation Company, he alleges that it was given in payment of bonds of the said company, which bonds were never delivered to him; that The Lancaster Trust Company had knowledge of that fact that account, took it as collateral for a when it accepted the said note, and, on larger note known as a syndicate note, the amount of which, together with the makers and endorsers, the defendant was unable to give at that time. He also asserted that he never authorized The Union Irrigation Company to endorse the said note to any person, nor to negotiate it; but understood that it was to be returned to him, unless he received the bonds agreed upon. It will be observed that the affidavit does not deny that the plaintiff company gave valuable consideration for the note in suit before maturity, and the defend ant does not contend that there was fraud, accident or mistake in the giving of it. It is, however, asserted that the defendant was to receive bonds of The Union Irrigation Company as a consideration, and that he never got them. If this is true, as between him and The Union Irrigation Company, it would be a defense to the note; but it is clearly not a correct proposition as against the rights of third parties who are holders for value before maturity. It is true that the defendant alleges that he never authorized The Union Irrigation Company to endorse the note to any person, nor to negotiate it, but understood it would be returned to him unless he received the consideration agreed upon therefor. He, however, admits that he delivered the note to that company, and certainly no secret understandings between them, even if made, could bind any one who, in good faith, took the note for value before maturity. The delivery of the note carried with it the legal implication that the party holding it had a right to negotiate it. So far as an innocent holder for value was concerned, it made no dif- | ference what express authority the defendant gave, or what his understanding was concerning the transaction. It can be fairly inferred that the defendant gave the note and trusted to the company for the future delivery of the bonds. That of itself was authority in The Union Irrigation Company to negotiate the note. The fact that The Lancaster Trust Company had knowledge, when it received it, that the bonds had not yet been delivered, did not, without more, necessarily invalidate the note in its hands. Knowledge that the defendant was to receive bonds for his note is not notice of any defect in the note, so as to charge the holder therewith. In section 57, of the Act of May 16, 1901, P. L. 194, it is said that "a holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon." In Johnson County Savings Bank v. Koch, 38 Sup., 553, it is said: "The portions of the Act of 1901 above quoted are but a re-statement of the law as it has long been recognized in Pennsylvania. The rule is that it is not sufficient to show suspicious circumstances, such as might lead a person taking paper by indorsement to make inquiry, but actual mala fides must be proved: Phelan v. Moss, 67 Pa., 59. In that case, the Supreme Court said: Where the bill has passed to the plaintiff without any proof of bad faith in him, there is no objection to his title: * * that even gross negligence is not alone enough to destroy the title of a holder for value; but that a case of mala fides on the part of such holder must be made out in order to defeat his claim.' Phelan v. Moss is quoted with approval by Mr. Justice Fell in Lancaster County National Bank v. Garber, 178 Pa., 91. The bona fide holder of a negotiable note for value without notice can recover on it, notwithstanding he took it under circumstances which ought to excite the suspicion of a prudent man:' Second Nat. Bank v. Morgan, 165 Pa., 199. See also Moorehead v. Gilmore, 77 Pa., 118, where Mr. Justice Sharswood said: The latest decisions both in England and this country have set strongly in favor of the principle that nothing but clear evidence of knowledge or notice, fraud or mala fides, can impeach the prima facie title of a holder of negotiable paper taken before maturity. * It is of the utmost importance to the commerce of the country that it should be sternly adhered to, however hard may be its operation in particular cases.' The affidavit of defense does not disclose the character of the notice which the plaintiff possesses concerning the note, nor what officer, if any, of The Lancaster Trust Company received the notice. In Dominion Trust Company v. Hildner, 243 Pa., 253, it appeared that, in an action of assumpsit on a promissory note, made and endorsed in blank, by the defendant, the affidavit of defense alleged that the note was purchased from a third person, who was at the time of purchase president of plaintiff company and who had knowledge of known that it was at all times in the possession of the plaintiff. If he had made inquiry, there would have been more excuse for his looseness of statement concerning this transaction. We do not think the defendant has set forth a sufficient defense, and we, therefore, make the rule absolute, and direct. judgment to be entered in favor of the plaintiff for the sum of $2,000.00, with interest from April 1, 1914, making $2,148.66. Rule made absolute and judgment for plaintiff. facts which would constitute a good de- | this information, though he must have fense to the note. It also appeared that plaintiff's president had not acquired this knowledge while acting in any way for the plaintiff, but while acting for himself or for another concern in a different transaction. The Court entered judgment for plaintiff for want of a sufficient affidavit of defense, and it was held that there was no error in so doing. In Superior National Bank v. Stadelman, 153 Pa., 634, it was held that, "in an action by the indorsee of a promissory note against the maker, an affidavit of defense setting forth that there was no consideration for the note, that plaintiff had notice of that fact, and that plaintiff paid no money to this defendant for the note, is insufficient, as the facts alleged are entirely consistent with plaintiff being a holder for value, through a prior indorser, of an accommodation note. In such a case, an averment that the payee was an officer of the bank and had notice of the entire transaction,' without stating what the transaction was, is a nullity, as are also the further averments that the bank by its officers accepted the note without any liability on the part of the maker, and that the maker was discharged from liability by the plaintiff." Union Trust Co v. Enos E. Mowrer (No 2). Trial before Court without jury under Act of April 22, 1874. C. P. of Lancaster Co., June Term 1913. No. 39. John M. Groff, for plaintiff. Coyle & Keller, for defendant. March 20, 1915. Opinion by LANDIS, P. J. It is also alleged that "The Lancaster Trust Company had knowledge of that fact (that the note was given for the And now, March 20, 1915, this case bonds and that they had not been deliv- having come before us on Exceptions to ered) when they accepted the said note, Findings of Fact, Conclusions of Law and, on that account, took it as collateral and Decision of the Court, filed by the to a larger note, known as a syndicate defendant, in accordance with the Act of note." We do not think that the rights April 22, 1874, P. L. 109, we, after arguof the plaintiff are affected by this alle- ment duly heard, have fully considered gation. It is not stated when the syndi- said exceptions, and we do now overcate note was discounted, and presum- rule them, and confirm our former findably this was only done on the faith of ings, and we do order judgment to be the note and perhaps other security. If entered in favor of the plaintiff against the plaintiff, in good faith, purchased the the defendant, as set forth in the desyndicate note and took the note in suit cision made by us on January 16, 1915. as security for it, surely the mere fact as follows: "I, therefore, direct judgthat the bonds were not yet delivered, ment to be entered in favor of the plainbut were to be in the future, would not tiff and against the defendant for the be a valid defense in an action by the sum of $625.00, with interest from plaintiff. In addition, the defendant January 19, 1913. to July 29, 1914, or states that he does not know the amount $57.25, making a total of $682.25, less of the syndicate note, nor its makers nor a credit of $74.38, the proportionate endorsers. He, however, does not pre-dividend arising out of the personal estend that he ever endeavored to secure tate of the bankrupt, or $607.87, with interest, amounting in the aggregate to $624.89." Exceptions overruled and judgment entered accordingly. Orphans' Court. Estate of Oscar Hohein, Deceased. Issue devisavit vel non-Perfection of record in O. C. An issue devisavit vel non having been tried and the will declared invalid, a decree was duly entered in Orphans' Court annulling the probate of the will. Subsequently, without further action in the Orphans' Court, proceedings were taken purporting to reinstate the will, but the record was not perfected in the Orphans' Court. On distribution of the decedent's estate, Held, that the estate came up as that of an intestate. Adjudication. O. C. of Lancaster Co., June Term 1902, No. 47. Neither of two petitions for distribution shows when Oscar Hohein died nor was any testimony offered as to the fact. The proceedings in this Court as to his estate are to June Term, 1902, No. 47. We find that he is dead and has been dead for at least thirteen years. He left a paper which was probated as his will. An appeal was taken from the action of the Register admitting it to probate and an issue devisavit vel non asked. The appeal was sustained and an issue sent to the Court of Common Pleas. On January 8, 1904, the proceedings of that Court were certified to this one, showing that on December 5, 1903, there had been a verdict declaring the will invalid. On January 14, 1904, the decree of this Court was entered annulling the probate of the will. With this the record ends as to matters testamentary. The estate comes up as that of an intestate. Inconsistent with this are accounts of an administrator cum testamento annexo and of a trustee. Attached to the administrator's petition is a copy of what purports to be a will of the decedent and distribution to conform therewith is asked. In explanation of these anomalies counsel assert that after certain proceedings were had in the Court of Common Pleas a jury on April 29, 1909, entered a verdict whereby it was announced that the will had been reinstated. During the time between the two verdicts, that declaring the will invalid and the one intended to reinstate it, as heirs the children gave mortgages which were liens on and parted with interests in inheritances. It having been admitted that the statements as to the happenings in the Court of Common Pleas were correct, proceedings in this Court were suspended and the counsel who contended for testacy was repeatedly requested to perfect the record. Finally it was ordered, as if a rule had been entered and made absolute, that the record be perfected to respond with that of the Court of Common Pleas, but even that failed of its purpose. It will be remembered that the records of this Court show a termination of matters testamentary with the decree annulling the probate of the will. Nothing relating to this estate since then has been taken to the Court of Common Pleas from this Court, therefore in that Court there is no subsequent record of a legitimate action affecting it. Apparently some one surreptitiously took the defunct will from the Register's Office-if done with the approval of a Clerk it was done in violation of the Court's injunction-and from his pocket it was physically landed in the court room of the Common Pleas, and then and there it is pretended was injected into it an elixir of life. There is not a ghost of a will in this Court, notwithstanding we now have a copy of the docket entries of the Court of Common Pleas made since it was certified to this Court that the will was dead. But even if the record of that Court was in form and substance unimpeachable it would not be admissible as evidence "without proof of a final decree of the Orphans' Court." |