case cited been departed from, since its announce- defendant was incorporated on January 12, 1828, ment in 1835. Numerous cases have been de- that in pursuance of its constitution the tract of cided since, involving the question of what were ground against which this lien is filled was immeand what were not attempts to prove the truth of diately after the incorporation laid off in burial the charge, but in no one has it been held, that lots in accordance with plan hereto annexed to defendant could not give evidence of general rep- this affidavit, and made part hereof, and the same utation of plaintiff in mitigation of damages, nor allotted or drawn by the members, and the said that particular acts given in evidence by plaintiff lots are now held by the said persons or their himself, tending to produce belief of the truth, heirs or assigns, and are held exclusively for the could not be invoked for same purpose: Smith purpose of burial. v. Smith, 39 Pa. 441, cited and relied on by ap- That the water pipe laid in said Parker street pellee's counsel, is not in conflict with Henry is of no use to the said burial ground, nor any v. Norwood. That was an action for damages, improvement thereto, as said burial ground now for the slanderous charge of larceny of tobacco, has, and has had for over twenty years past reand defendant offered under the general issue ceived water from the water pipes laid on Federal to prove by a witness the particular fact charged. street. In the discussion raised by the assignments of That said society is not managed for private error, THOMPSON, J., remarks on the uncertain- or corporate profit, and no portion of said tract ty of the law, because of diversity of decisions, of ground is held for private or corporate profit, and rules that the evidence was inadmissible, all of the above lot as above set forth having only because it tended to prove directly the truth been conveyed to members for the purpose of of the charge. burial, in whom the same, or their heirs or assigns, is now vested. For these reasons, I would sustain the fourth assignment of error and award a venire facias de novo. I would overrule all the others. Deponent is further advised that plaintiff cannot maintain the lien for the further reason that the State of Pennsylvania by Act of Assembly approved April 27, 1852, P. L. 460, section 16, provided, "that the property now owned for the purpose of interment by the . . . . Union Burial Ground Association be, and the same are hereby exempted from taxation, excepting for State purposes." That the Union Burial Ground Association referred to in the said Act of Assembly is this defendant. An assessment for the laying of water pipe in front of premises is not a tax within the meaning of the provision The plaintiff took a rule for judgment for want of the Constitution authorizing exemption from taxation, of sufficient affidavit of defence, which the Court a burial ground is therefore liable to such assessment, not-after argument made absolute. The defendant withstanding the Act of April 8, 1873. WILLIAMS, J., dissents. Broad St., 165 Pa. 475 followed; Phila. v. Church of St. James, 134 Pa. 207; Phila. v. Penna. Hospital, 154 Id. 9, explained. Appeal of the Union Burial Ground Society for the City and County of Philadelphia, from the judgment of the Common Pleas No. 1, of Philadelphia County, on a scire facias sur municipal lien filed by the city of Philadelphia. took this appeal. Alfred D. Wiler, for appellant. Burial grounds belonging to religious corporations were exempted from local taxation by the Act of April 16, 1838, P. L. 525, then certain grounds not belonging to religious corporations, including by name the defendant, Act April 27, 1852, sec. 16, P. L. 460; and there was passed an Act exempting the burial lot itself as distinct from the property of the corporation Act of April The city of Philadelphia filed February 27, 1890, 5, 1859, P. L. 363; this was followed by the Act a lien against the Union Burial Ground Society of May 12, 1871, P. L. 771, and this by the Act for the City and County of Philadelphia (said de- of April 8, 1873, P. L. 64, exempting, inter alia, fendant being simply described in said lien as from taxation and providing that no burial lot Union Burial Ground Society), for the sum of sold to individuals for burial of the dead shall $326.14 for laying a water pipe on Parker street, be liable to levy and sale for any tax whatsoever. one of the streets on which defendant's burial This Act was not repealed by the new Constituground had a frontage; and on February 13, 1895, issued a sci. fa. thereon, to which defendant filed an affidavit of defence, which set up that the tion. Northampton County v. Lehigh Coal & Nav. Co., 75 Pa. 461. It is not repealed by the Act of May 14, 1874, P. that an exemption from taxation is to be taken L. 158, that Act contains no repealing clause and as an exemption from the burden of ordinary makes no mention of lots conveyed to individ- taxes, and does not relieve from the obligation uals as distinct from the ground held by corpor- to pay special assessments imposed to pay for ations or associations. local improvements and charged upon contigu A claim for water pipe is a tax, it is not a claim ous property upon the theory that it is benefited for a benefit as is a claim for paving, for the rea- thereby, the Chief Justice concludes as follows: son that the city of Philadelphia in supplying "The rule thus formulated not only rests upon an water is exercising a monopoly, not necessarily undoubtedly sound principle, but it is abundantly part of the duty of a municipal corporation. sustained by an almost unbroken line of authoriGirard Fire Ins. Co. v. City of Philadelphia, 88 Pa. 393. ties in nearly all of our sister States, several of Manifestly the larger benefit is confined to the the opinion referred to. which authorities are cited and commented on in city as it reaps all the profit of supplying water opinion that special municipal assessments, such We are, therefore, of to its citizens, and in order to do so, it has to get as that in question, are not within the constituto the houses by pipes. Therefore, a claim of this tional exemption above quoted." The improvekind is different from a claim for paving or laying ment in this case was the pavement of a street in a sewer where the city derives no benefit what- front of a church property, and we held that it This case is governed by Phila. v. Church of unanimous assent of the members of this Court was not exempted. This decision received the St. James, 134 Pa. 207. ever. James Alcorn, assistant city solicitor, (with him David Lavis, assistant city solicitor, and John L. Kinsey, city solicitor), for appellee. and has not been departed from. On the contrary, in the case of New Castle City v. Jackson, 172 Pa. 86, which was heard in the Western Disassess-Broad Street case, and applied its ruling to an astrict at October term, 1895, we followed the A claim for water pipe is a municipal ment and not a tax in the constitutional sense. Philadelphia v. Church of St. James, 134 Pa. 207. And this case is governed by Broad Street, 165 Pa. 475. sessment upon a graveyard property for paving a street. We are unable to make a distinction between a graveyard and a church property in reference to this subject, nor do we think a distinction can be maintained between the paving of a January 4, 1897. GREEN, J. We feel obliged street and the laying of water pipe. They are to hold that the question at issue in this case is both municipal improvements of a local and specres adjudicata. The distinction between muni- ial character, and, theoretically at least, each must cipal assessments for the payment of local im- be supposed to confer a benefit upon the adjacent provements, and general taxes intended for gen- property. The fundamental reason for withholderal governmental purposes, as they are affected ing exemption is, that such assessments are not by exemption laws, was fully pointed out and general taxes, but are special and local, confined discussed in the opinion delivered by Mr. Chief to limited areas, and to property adjacent to the Justice STERRETT, in the case of Broad Street, improvement. In Michener v. City, 118 Pa. 535, 165 Pa. 475. It was there said that, "The con- we held that an owner could not defend against a stitutional exemption relates to taxes proper, or municipal assessment for the cost of laying a general public contributions, levied and collect- sewer, on the ground that it was not a private ed by the State or by its authorized municipal benefit to him, nor a matter of necessity to the agencies for general governmental purposes, as public. The city councils were necessarily the distinguished from peculiar forms of taxation or judges of the necessity of the improvement, and special assessments imposed upon property, with- no other standard could be set up without the in limited areas, by which the property assessed greatest confusion. Whether the improvement be is specially and peculiarly benefited and enhanced a sewer, as in that case, or a water pipe, as in this, in value to an amount at least equal to the as- can make no difference in the governing princisessment. There is such an obvious distinction ple. We do not see how we could reverse this between all forms of general taxation and this case without reversing our own previous decisspecies of local or special taxation, that we can ions in the cases cited, and this we are not willnot think the latter was intended to be within ing to do. the constitutional exemption." After citing a In the two cases, Philadelphia v. Church of St. number of decisions of our own Court, and espe- James, 134 Pa. 207, and Philadelphia v. Pennsylcially a decision of the Supreme Court of the vania Hospital for the Insane, 154 Pa. 9, it was United States, in Illinois Central Railroad Co. substantially held that the properties there in v. Decatur, 147 U. S. 190, 197, wherein it is held question were exempt from an assessment for the cost of a water pipe laid in the street in front that these lots are exempt from taxation by the of them. In neither of them, however, was the provision of the Act of April 5, 1859. We come question involved in the present case raised, con- now to glance at the legal questions thus raised. sidered or decided. In both, the only question First, is the assessed cost of laying water pipe a discussed and decided was, whether the property tax? The assessment is made under authority of was embraced within the description of proper- the ordinance of June 2, 1866, which provides ties exempt from general taxation. In the first the that whenever the city lays pipes for the conveyproperty was a church, a church school and a ance of water along any street "the owners of the church yard, and in a Per Curiam of one sentence, ground in front whereof it shall be laid shall pay we said that the averments in the affidavit of de- for the expense thereof the sum of one dollar for fence must be taken as true, and therefore no error each foot front of his ground upon such street": was committed in refusing judgment. In the other Phila. City Dig., 176. This is a tax for a special case, there was also a Per Curiam opinion in which purpose. The pipe is not laid in the interest of was very briefly discussed the question whether the lot owner, or of the general public, but of the such a property, to wit, the buildings and grounds city, the owner of the water works. It serves the of the insane department of the Pennsylvania convenience of water buyers as well as of the Hospital, were a purely public charity. Holding city, the water seller, but it is not classed among the affirmative of that proposition, we ruled that the improvements for which benefits may be asthe demurrer to the plea which described the sessed against a lot holder by any Act of Assemproperty, was bad, and sustained the Court below bly. The city can file a municipal lien to secure in so deciding it. It is also to be said that both the assessment made against city property for the of these cases occurred prior to the case of Broad cost of any municipal improvement including Street, supra, and if they were in essential con- opening and grading of streets, paving and curbflict with the decision in that case, we would be ing, sewering, laying of footwalks, and for "benobliged to hold that they were overruled. But efits" resulting directly from such improvements, there was no such conflict, as they were both entirely silent as to the question decided in the Broad Street case. We cannot therefore regard them as of any force in the present contention. Judgment affirmed. Eo die. WILLIAMS, J., dissenting. This appeal is from a judgment entered in the Court below for want of a sufficient affidavit of defence. To determine the sufficiency of the affidavit it is important to consider in the first place the character of the plaintiff's claim; next the facts set out in the affidavit as the ground of defence; and finally, the rules of law applicable to the facts so averred. but the basis on which such assessments must stand is that they represent the cost of an improvement made to the property assessed, by the city, for which the owner should pay. It may also file a lien to secure "the taxes rate and levies" assessed by it. The lien filed in this case rests on no appraisement of benefits by the viewers. The laying of water pipe has never been treated as such a public improvement as authorizes or requires an ascertainment of the benefit resulting to the lot owner. The amount to be paid is fixed by ordinance. The object of the tax is to reimburse the city for a specific expenditure made largely for its own benefit and to increase its own profits as a dealer in water on a gigantic scale. The plaintiff's claim is upon a municipal lien The lien is therefore entered to enforce a tax and filed against a plot of ground now under the care not to collect the assessed value of a betterment. of, and at one time many years ago, belonging to, In view of this fact is the burial ground exempt? the defendant society. This lien was filed for The constitution expressly authorizes the exempthe cost of laying a water pipe or street main tion from taxation of all "burial grounds not along the street on which the burial ground held or used for private profit." The Legislature fronts. by the Act of May 14, 1874, proceeded under that The affidavit alleges that the money charged authority to declare all burial grounds not held to the defendant by the city for laying its own or used for private or corporate profit exempt water pipes is a tax; and that as the burial ground from all local taxation. The affidavit of defence is not held or used for private or for corporate alleges that this burial ground is not held or used profit it is exempt by law from all city taxes. It for private or corporate profit. If this be true further sets out that the land once owned by the then a good defence is shown. The lien being defendant was laid out some sixty-five years ago for a tax, and the ground being exempt by law into burial and vault lots, several hundreds in from taxation there can be no recovery. But this number, and that these lots have been sold and ground is now owned by some hundreds of perconveyed in fee to individuals who own them sons each holding his own lot in fee and using it and use them exclusively as places of burial; and solely as a place for burial. By the Act of April 5. 1859, it is provided that "whenever any lot or imposed in this case." We have held a hospital lots or the right of sepulture therein shall be liable to repair foot walks in front of its propgranted to any person or family by any incor- erty because of the duty of a property owner to porated cemetery company, or church, or relig- the public. This duty we said could be enforced ious congregation, within any common enclos- by the exercise of the police power of the municiure made by such company, church or congre- pality, but so far we have carefully distinguished gation, as and for the perpetual burial of the dead, between a charge resting on a duty to the genany and all lots so disposed of or used for burial eral public, and a charge made by virtue of the shall hereafter be free and exempt from all taxa- taxing power, and serving no purpose but to tion so long as the same shall be used or held yield revenue to the authority imposing it. Upon only for the purpose of sepulture. The Act of general principles, and upon the authority of our April 8, 1873, passed for the express purpose of own very recent cases, I would reverse this judgsubjecting all real estate to taxation saves burial ment. lots by a proviso declaring that "no burial lots sold to individuals for burial of the dead shall be liable to levy and sale for any taxes whatsoever." H. B. April 30, 1896. Jack v. Kintz and Brubaker. Married women-Real estate-Ejectment—Judg, Not one of these lots could be legally assessed Jan. '96, 282. for taxes of any description. Still in this proceeding it is proposed to assess them all in spite. both of the Act of 1855, which protects the lot owner, and the Act of 1874 which protects the lot ciety. What is still worse is that it is proposed to do this without notice to the lot owners who have for more than half a century held and used their lots for the burial of their dead. Some A purchaser from a married woman of real estate ac thousands of sleepers are resting in these little quired by her during coverture, having notice from the sacred enclosures. Over their remains stand the circumstances connected with the transaction that the head-stones and monuments which the willing is held to the same burden of proof which rests on a husband, or his creditors, had an equity in the property, hands and loving hearts of survivors have reared married woman in an attack on her title by her husband's to mark the spot where their lost ones sleep, creditors. and to bear the name of the sleeper. Though they have not been owned by the corporation for two generations they are within the "common enclosure," and are, as it is claimed, subject to the lien which has been filed against it. It is proposed to sell them all in a lump, upon a lien for a tax from which each and every one of them is exempt, and deliver to the highest bidder at a sheriff's sale the graves of two generations with all that pertains to them. In ejectment by purchaser at sheriff's sale under a judgment against a husband, brought to recover from a prior grantee of husband and wife land claimed to have belonged to the wife, it appearing from the circumstances connected with and surrounding the transaction, that the grantee had actual notice of the husband's equity, it is not error for the Court below to charge that in the absence with her own funds, the plaintiff in the ejectment may of evidence that the property was purchased by the wife recover. The married women's Acts of 1887 and 1893, do not alter the rule of law that in a contest between a married woman and her husband's creditors respecting the title of property acquired by her during coverture, she must show that the property was purchased with her own means. One who was the defendant in execution and husband of the grantor to a party in an action of ejectment is a competent witness for said party after his wife's death, where having joined in his wife's deed his tenancy by the curtesy in the property has been conveyed away by him. The suggestion is as shocking to my sense of justice as it is to my sensibilities. So far we have considered the subject as standing on ground untouched by precedent, but it is covered by our own cases. In Philadelphia v. St. James Church, 134 Pa. 207, we held that a church, which stands on no higher ground, so far as its claim to exemption is concerned, is exempt from the cost of a water pipe laid in the adjoining street Appeal of Elmer E. Kintz and Susan Brubaker, and that a lien entered therefor can not be en-defendants, from the judgment of the Common forced. In Philadelphia v. The Penna. Hospi- Pleas of Cumberland County, in an action of tal for the Insane, 154 Pa. 9, we held the hospi-ejectment, wherein William D. Jack was plaintiff. tal to be exempt from the same charge, viz., the On the trial of this cause, before STEWART, cost of laying a water pipe in the street in front P. J., the following facts appeared: of the hospital grounds. The words used by Milton K. Brubaker was for a number of years the Chief Justice in a Per Curiam, disposing of the owner of a hotel property in New Cumberthe last case are, "we think the hospital is exempt land. On January 4, 1888, he and his wife, Susan from the species of taxation attempted to be Brubaker, made a deed for the property to their married daughter, Mrs Minnie M. Albright, for tions for the defendants. (Third assignment of a consideration of $6500, $2000 of which was re- error.) And affirmed the plaintiff's point that unserved and secured in the deed, to be paid to Mr. der all the evidence the verdict should be for the Brubaker in one year, with interest. There was plaintiff. (First assignment of error.) The fifth no evidence that John Albright, the husband, assignment was the refusal by the Court to admit ever owned or controlled, or had anything to in evidence the deed by Minnie M. Albright and do with the property, or was interested in it, husband to Susan Brubaker, dated March 24, or participated in any way, directly or indirectly, 1888, and the sixth assignment was the refusal to in the sale. The deed was recorded on the day it admit John R. Albright as a competent witness. was made. On March 24, 1888, Mrs. Albright because his wife claimed adversely to a party on and her husband made a deed for the property the record whose title was derived through a deto Mrs. Susan Brubaker, the mother, for the ceased grantee. Verdict for the plaintiff under same consideration of $6500, with the same reser- instructions by the Court, and judgment therevation in the deed, providing for the payment of on. The defendants took this appeal. $2000 to Mr. Brubaker in one year, with inter est. F. E. Beltzhoover, (G. Wilson Swartz with him), for appellants. W. F. Sadler, (S. M. Leidich with him), for appellees. On March 2, 1888, one Annie K. Fleming obtained a judgment for $7889 against John R. Albright, on which execution was issued and the property in dispute levied on and sold at sheriff's October 5, 1896. MCCCOLLUM, J. There are sale on February 8, 1889, to S. M. Leidich for but two questions involved in this appeal. The $20. S. M. Leidich conveyed the property to first is whether a married woman who receives Mrs. Catharine A. Fleming by deed dated De- a conveyance of land is required in a contest cember 20, 1889, which was never recorded. Mrs. with her husband's creditors respecting the posCatherine A. Fleming, by her will, dated Febru- session and ownership of it, to prove that she ary 17, 1890, and proved December 21, 1892, devised the property to her daughter, Annie K. Fleming. paid for it with her own money, or that it was a gift to her from her grantors. In the case before us the defendants claim to have a good title to the Annie K. Fleming, the devisee, conveyed the land in dispute by virtue of the deed of it from property by deed, dated December 19, 1892, to W. John R. Albright and Minnie M. Albright to D. Jack, the plaintiff. The plaintiff offered in evi- Susan Brubaker, and the plaintiffs claim to have dence judgments against John R. Albright, aggre- a like title to it based on a judicial sale of it as gating $4400, which were shown by the record the property of John R. Albright. It appears to to have been all paid and satisfied on or before April 1, 1888. be conceded that Milton K. Brubaker was the owner of the property on the 4th of January, 1888, The Court charged, inter alia: "The mere fact and that he and his wife, Susan Brubaker, on that the grantee, Mrs. Albright, was a married woman day made and delivered a deed of it to their marat the time of the conveyance to her is sufficient ried daughter, Minnie M. Albright, who on the for the purposes of the plaintiff. When the plain- 24th of March, 1888, united with her husband in a tiff showed this the law cast upon those claiming conveyance of it to her mother. The consideratitle through the wife, the defendants here, the tion named in each deed was $6500, and each was burden of showing that the property was purchased with her own means." (Fourth assignment of error.) subject to the payment of $2000 of that sum to Milton K. Brubaker on or before the 15th of April, 1889. After the deed was made to Minnie M. Albright, and before the deed was made to Susan The defendant asked the Court to charge1. The evidence in the case shows that the Brubaker, Annie K. Flemming obtained a judgpurchase of the property in dispute was made ment against John R. Albright for $7889, and on by Mrs. Albright on January 4, 1888, for $6500, this judgment an execution was issued by virtue $4500 of which was paid, and $2000 of which was of which the land in dispute was seized and sold reserved and secured by a lien fixed in the title, by the sheriff. If John R. Albright owned the and there being no evidence that this was not land when the judgment was obtained, his title her money, or that there was any fraud in the to it was divested by the sale and the plaintiff is transaction, since the Acts of 1887 and 1893 it does the present owner of it. In other words, the not devolve upon her to show where she obtain- plaintiff had whatever right Albright acquired by ed the money, and the verdict should be for the the deed from the Brubakers to his wife. defendants. It is a familiar and well settled principle that in Refused. (Second assignment of error.) a contest between a married woman and the cred |