receiver of taxes to procure an accurate descrip- these smaller lots from the surveyor of the distion of the real estate upon which they have been trict, who made it for a former owner of the assessed and to file liens (claims) therefor: Act ground for use in selling building lots. This of April 19, 1883, sec. 6, P. L. 11. Municipal claims do not require as strictly accurate descriptions as those of mechanics for work done on particular property. The object of the description is to ascertain the locality of the property charged, and this is sufficiently accurate if executed as nearly as may be: Thomas v. Northern Liberties, 13 Pa. 117; Allentown v. Hower, 93 Pa. 332. was prior to the assessment for 1883, and it was a proper source of information, according to the Act of May 13, 1857, before referred to. If the owner at that time did not adopt the plan or sell any of his lots by it, and did not desire his large lot assessed in small lots, he had the right to appeal to the board of revision to rectify the error, as the board could rectify it under the Act of March 14, 1865, before cited. His appeal have been made to the board of When taxes on separate and distinct properties should in this city are assessed together as one estate, revision, as the Court has no power to rethe board of revision (taking the place of the lieve him on such a complaint: Clinton county commissioners) may apportion the same School District's Appeal, 56 Pa. 315; Van ratably upon the several and distinct portions of Nort's Appeal, 121 Pa. 118; Moore v. Taylor, 147 the property so assessed together: Act of March Pa. 481. Failing to do so then, it is too late now. II, 1846, sec. 8, P. L. 115. His laches is a sufficient reason for dismissing 558. When a claim for taxes or other municipal claim his appeal: City v. Michener, 7 WEEKly Notes, has been filed against any lot of ground in the city of Philadelphia, and said lot consists of two It is undoubtedly true that the assessments or more lots belonging to different persons, the should follow the description as furnished by the Court shall permit and require the claim to be owner to the registry bureau; but there are some amended and apportioned, so that a due propor- exceptions. One is a case, like the present, where tion thereof shall be charged against and re- the owner has subdivided his property for the covered from the several lots included in the purpose of sale: Beltzhoover Borough v. Maple, claim as originally filed: Act of March 22, 1869, P. L. 477. Hence the inclusion of several lots in one claim is not fatal to it: City v. Cadwallader, 22 WEEKLY NOTES, 8. In the present action a claim has been filed against a lot of ground on the east side of Boudinot street, at the southeast corner of Hart lane, and 153 feet south of Indiana avenue; being 18 feet 1 inch front and 42 feet 6 inches deep on the south line, and 53 feet deep on the north line to a three-feet wide alley, for registered taxes of 1883, 1884, 1885, 1886 and 1887. The lien was filed November 23, 1888. 130 Pa. 335. If he wishes to withdraw his plan of subdivision, he should appeal to the board of revision at once, and he will find that board always disposed to hear his appeal and correct all errors, whether made by him or the assessors. Fortunately, no sale has been made in the present case, and the city solicitor states that the board of revision will do all that can be done to consolidate the assessments, if the present owner will pay the arrears of taxes due by the property. Another exception, in which the assessors may disregard the description in the deeds, is the case of a large tract of land crossing open public William D. Neilson, the present owner of a streets. In such a case the assessors and board large lot of ground, of which the above is part, may make a division of the tract, so as to assess which he purchased at sheriff's sale, and obtained the several lots according to their frontage and a deed therefor, dated July 13, 1895, now asks that depth on actually opened public streets; but the claim be struck off or the judgment opened neither the assessors nor the board have authority to admit of a defence of misdescription. The to lay out private streets or alleys in large lots, plaintiff's large lot is in the shape of a trapezoid, nor recognize any except such as are laid out by or plane four-sided figure having two of the the owners. opposite sides parallel with each other. It is 174 The sci. fa. on the claim was not issued until feet 834 inches long on its east line, on Gunner January 20, 1891. At that time the lien of the street, and 57 feet 7% inches on its west line, taxes for 1883, 1884 and 1885 had expired, and the on Boudinot street, which is parallel with the property was discharged from them: City v. east line, the distance between them on a right Hiester, 142 Pa. 39. line being 97 fect 6 inches, and on the diagonal The plaintiff agrees to deduct the taxes of these line 152 feet 15% inches. This lot has been as-years with the interest thereon included in the sessed in sixteen small lots, having a three-feet- judgment, and, therefore, it is unnecessary to wide alley laid out between them. It was stated send the case to a jury for that purpose only. in argument that the assessors got the plan of Rule discharged. F. B. N. WEEKLY NOTES OF CASES. VOL. XXXIX.] FRIDAY, FEB. 5, 1897. [No. 20 Supreme Court. Oct. '96, 5. Supreme Court. 415 brought by John S. Newkirk, one of the defendants above named, against Lester Lineberger, the above named tenant by the curtesy, for the possession of said described land, which was tried at the May term of said Court, in 1890. In this case the plaintiff, John S. Newkirk, set forth as his claim to said land that the deed aforesaid, dated March 23, 1882, was not his deed; first, that he never made, signed or executed any such deed, and second, that at the time said deed purports to have been executed, he was insane and absolutely incompetent to execute a deed. In October 13, 1896. support of these hypotheses, the plaintiff produced to the number of forty witnesses-relatives, saw him frequently at the time, prior to and subfriends and neighbors-who knew him well and sequent to the date of the execution, or alleged execution, of said deed. The defendant in said case, to prove the execution of said deed and the sanity of the said John S. Newkirk at the time it was alleged to have been executed, produced the deed and the evidence of twenty witnesses In an action of ejectment, therefore, by the remainder--neighbors and acquaintances of the said plainman against one in possession of the property, the record tiff, John S. Newkirk. The case was submitted of a former ejectment between the life tenant and the pres- to the jury on the charge of the Court, in subent defendant cannot be put in evidence; the second ejectment is between neither the same parties or privies. Where the issues in an action of ejectment are upon the genuineness of the signature to a deed, and the sanity of grantor, they are legal issues to be determined by the jury and not by the Court. Lineberger v. Newkirk. Ejectment-Second suit for- Parties to-Lifetenant and remainder-man-No privity between -Merger-Equitable ejectment-Nature of. A release of a life estate to the remainder-man does not create any privity between them. By the release, the life estate is merged in the fee, and the title of the remainderman is not in any sense derived from the life tenant. the In such a case the action is not an equitable ejectment, and is not conclusive against a second ejectment, even between parties and privies. stance, that if the jury found from the evidence that the plaintiff, John S. Newkirk, did not sign the deed in question, the verdict should be in favor of the plaintiff; that if they found that John S. Newkirk did sign said deed, but at the time of so doing the jury should find from the evidence that he was insane, they should also find the amount of improvements made by the defend Appeal of John S. Newkirk and Mary New-ants upon said land for the purpose of enabling kirk, defendants, from the judgment of the Comthe Court to equitably frame the judgment in the mon Pleas of Mercer County, in an action of case; that if the jury found from the evidence that ejectment brought by B. G. King, guardian of Caroline Lineberger against said defendants, to recover a certain tract of land in West Middlesex borough, Mercer county. John S. Newkirk did execute said deed, and at the time of so doing he was of sufficient mental capacity to make a deed, then the verdict of the jury should be for the defendant. Under this charge of the Court the jury found for the plaintiff generally and judgment was entered upon the verdict. A writ of habere facias possessionem was subsequently issued and the plaintiff placed in possession, of the property involved in the is sue. Upon the trial, before GUNNISON, J., the following facts appeared: Prior to March 23, 1882, John S. Newkirk and Mary Newkirk owned and were in possession of the property in question as tenants in common, on which date, a deed purporting to have been made by them to Ruth Lineberger, was executed, and duly recorded Some time after John S. Newkirk was placed in August 1, 1883. Under this deed, the said Ruth possession of the said property, B. G. King was Lineberger, with her husband, Lester Lineber- appointed guardian for said Caroline Lineberger ger, went into possession of the said property, and brought this suit on August 31, 1893. On and subsequent thereto the said Ruth Lineberger December 21, 1894, Lester Lineberger made a died intestate, leaving to survive her het said hus- quit claim deed of all his right, title, interest and band and one daughter, Caroline Lineberger, a claim to said property to his daughter, the said minor and the plaintiff in this case, the said hus- Caroline Lineberger, and by an agreement of the band continuing in the possession as tenant by parties, by a paper filed in this case, it was agreed that said deed should have the same force and efIn September, 1889, suit in ejectment was fect in the cause as it would have had if it had the curtesy. been executed and delivered before the com- but if not so, they must stand in privity with mencement of this suit. This case was tried at each other. Timbers v. Katz, 6 W. & S. 290. Sample v. Coulson, 9 Id. 62. March term, 1895. The questions of issue were entirely the same as in the case between John S. Newkirk and Lester Lineberger, to-wit: Whether the said John S. Newkirk did sign the said There is no privity between a remainder-man deed, dated March 23, 1882, or whether if he did and a life tenant; nor will a release of his life sign the same he was of sufficient mental capac- estate by the life tenant to the remainder-man ity to so do. The evidence in the case was sub-create such privity. stantially the same in kind, character and amount The merger effected by such a release, will not on both sides as in the former case, twenty-four be defeated except for the benefit of the person witnesses being examined on the part of the in whom the interests are united. Wallace v. Blair, 1 Grant, 75. Pennock v. Eagles, 102 Pa. 290. January 4, 1897. GREEN, J. We cannot assent plaintiff and forty-two on the part of the defendants. The defendants offered the record and judgment of the former trial for the purpose of showing that the questions involved in this issue had been therein and thereby conclusively determined. This offer was refused by the Court on the to the proposition that the plaintiff's title to the grounds and for the reason, that the issue in this land in dispute is derived through her father. case, in the view of the Court, was between dif- She cannot be regarded, therefore, as claiming ferent parties, and that the record and judgment in privity with him, and hence the rejection of in the former case were not evidence for any purpose in this case for the same reason. Verdict for plaintiff and judgment thereon, whereupon the defendants took this appeal, assigning for error, inter alia, the refusal to admit at any time by a voluntary surrender to the tenin evidence the record and judgment in the eject- ant in reversion and the release executed by him ment suit between John S. Newkirk and Lester to his daughter was a merger of his life estate with the fee. Lineberger. The proposition that the first action was an equitable ejectment is equally untenable. The issues in the first ejectment were the offer of the record of the first ejectment was entirely correct. Her father's interest was as tenant by the curtesy and in any event, terminIt was of course terminable ated with his life. J. G. White (A. B. Thompson with him), for appellants. The ejectment in the former case was a sub- upon the signature of J. S. Newkirk to the deed stitute for a bill in equity to set aside an alleged in question, and the condition of his mind at the fraudulent deed, and the verdict and judgment time of the signature. These are plain ordinary was as conclusive as a decree in equity would issues at law. have been. Peterman v. Huling, 31 Pa. 432. The only remedy of the plaintiff in the present suit would be by proceeding in the nature of a bill of review. Stevens v. Church, 8 Phila. 642. By the judgment in the former suit, the tenancy by the curtesy was extinguished and it became vested in the plaintiff in that suit; the quit-claim deed, therefore, by the tenant by the curtesy to his daughter, could convey to her nothing, as he had after the former judgment no estate to convey. Q. A. Gordon, (W. H. Cochran with him), for appellee. The rule which allows a recovery in a former ejectment to be put in evidence in a subsequent one is expressly confined to cases where the land, the title and the parties are the same. It is true that the parties need not be identically the same, They involve the legal title un der the deed and they are properly to be determined by a jury and not by the Court They do not involve equitable considerations or the determination of facts upon which an equitable title arises. As in our opinion it is very clear that the first action was not an equitable ejectment, it would not be conclusive against a second ejectment if it were brought by the defendant in the first, and it could not, possibly, be conclusive against the plaintiff in the present case who was neither a party to the first writ, nor in privity with the defendant therein. The assignments of error are dismissed. S. H. T. Oct. '96, 82 and 83. Supreme Court. October 30, 1896. Walter Lyon, John F. Sanderson and Charles H. McKee), for appellees, cited— Teufel v. Rowan. Rowan v. Rowan. Lease-Construction of— Forfeiture-Waiver of Huling v. Drexell, 7 Watts, 126. TEUFEL V. ROWAN. The acceptance of overdue rent by a landlord does not operate as a waiver of a stipulation in a lease that "all rent reserved in the lease becomes immediately due and January 4, 1897. STERRETT, C. J. The learned payable, upon default or failure for five days on the part auditor, charged with the distribution of the fund of the tenant to pay any of the monthly instalments of raised by the sheriff's sale of the defendant's perrent." sonal property, reported in substance the following findings of fact, inter alia: That the defendant, John Rowan, leased from A. leased to B. a hotel for $13,000 per annum, payable in advance in monthly installments with a provision that a default of five days by B. in paying any instalments caused all the rent to become due and payable immediately. The Jacob Kaufman et al., the Central Hotel for five property of B. in the hotel was levied upon by C. et al., years from April 1, 1892, at a rental varying in judgment creditors, and sold by the sheriff. A. claimed amount each year. The rent for the third year, the full balance of rent from the funds in sheriff's hands. C. resisted the claim on the ground that A. had waived commencing April 1, 1895, was $13,000, payable his right under the clause in the lease by his previously in advance on the first of each month. By a subaccepting overdue rent: Held, that A. was not attempting to enforce a forfeiture, but to enforce the payment of a contract debt, and that his previous failure to exact the money on the day it was due did not amount to a waiver of his contract right. Appeal of F. M. Teufel and Leontine Rowan, from a decree of the Common Pleas No. 3, of Allegheny County, sustaining exceptions to auditor's report and making distribution of fund raised by sheriff's sale of personal property. The facts as found by the auditor, J. M. Stoner, Esq., are recited in the opinion of the Supreme Court, infra. The auditor was of opinion that the acceptance by the landlord of the rent after it became overdue operated as a waiver of his right to insist that under the lease a failure to pay when due caused the full balance of rent to become due and accordingly held that the landlord was entitled to rent only up to the time of the sale. sequent and "auxiliary agreement," all the rent reserved in the lease became immediately due and payable upon default or failure, for five days on the part of the tenant, to pay any of the monthly instalments of rent, or any part thereof. The property levied on and sold was upon the demised premises, at time of seizure, and liable to be distrained for all the rent then due. At the time of the levy the tenant had already failed to make one or more of the monthly payments of rent for the year commencing April 1, 1895. Prior to the levy the landlords had accepted from their tenant payments of rent overdue and in arrears under the terms of the lease. The legal conclusions drawn by the auditor from his findings of fact were, inter alia, substantially as follows: That the acceptance of overdue rent by the landlords condoned the default arising under Exceptions to this ruling were sustained by the paragraph contained in the "auxiliary agreeCourt, KENNEDY, P. J., and it was directed that ment," from their tenant's failure to pay his rent the landlord be paid the full amount of his claim according to agreement, "and operated as a for rent. Plaintiffs in the execution appealed waiver of said paragraph; and that said waiver is from this order, assigning for error this action attended with the same legal consequences with of the Court. respect to any other or future default by said tenas ant under said paragraph, if covenant C. S. Crawford, for appellant. The conduct of the landlord in receiving over- therein expressed had never been made." He due rent in payment at various times amounted accordingly held that the landlords were entitled to a waiver of his right to insist upon the strict to rent only up to the date of the sheriff's sale, enforcement of the agreement. August 30, 1895. McNeil v. Amey, 2 WEEKLY NOTES, 65. Lynch v. Versailles Fuel Co., 165 Id. 518. W. G. Guiler, (with him M. A. Woodward, Exceptions to these conclusions were filed by the landlords; and in the decree from which this appeal is taken the learned Court below sustained the exceptions, and awarded rent to the landlords for the year ending April 1, 1896. In thus holding that the tenant's default under the paragraph in what is termed by the auditor the "auxiliary agreement," which provides in substance that all Oct. '96, 127. Supreme Court. November 5, 1896. Kurzawski v. Schneider. money paid-Form of procedure. rent reserved in the lease shall become immediately due and payable upon default or failure of the tenant, for five days, to pay any monthly in- Sale of land-Agent for-Recovery against, for stalment of rent or any part thereof, was not condoned by the acceptance of overdue rent, the An agent who receives money paid on account of a Court was clearly right on both principle and contract for the purchase of real estate made with his authority. The clause in question is a part of the principal, cannot be held liable in an action by the purcontract between the parties. As was well said chaser to rescind the contract. by the learned President of the Common Pleas : Appeal of Arnold Schneider, defendant, from "The acceptance of a portion of the amount due, the judgment of the Common Pleas No. 2, of and failure to exact all that was due at that time, Allegheny County, in an action of assumpsit, brought by Lorenz Kurzawski. cannot be a waiver of the contract, but at most is only evidence of a willingness to indulge the debtor." Similar stipulations in mortgages have been upheld in numerous cases from Huling v. Drexell, 7 Watts, 126, to Platt, Barber & Co. v. Johnson et al., 168 Pa. 47. In Atkinson v. Walton, 162 Pa. 221, our brother DEAN says: "The rulings in all the cases from Hulings v. Drexel, 7 Watts, 126, to the present have been that in this class of securities the issuing of a scire facias is not to declare and enforce a forfeiture, but to enforce the payment of a debt, which by the contract became due. . . . . It has never been held that mere delay of suit, or neglect to rigorously exact his money on the day it is due, is evidence On or about May 4, 1893, Kurzawski and his wife, accompanied by a certain Mrs. Modrzsnyka and some of her children, called at the office of Arnold Schneider, who was vice-consul for Bel of a waiver of his (the creditor's) contract right." gium in the city of Pittsburgh, and engaged The principles underlying these cases rule the among other things in negotiating transfers of real estate in foreign countries, and employed him question under consideration in favor of the landto secure the transfer of a certain piece of real eslords. tate situate in Adelnau, Germany, which Kurzaw The cases cited by the plaintiff on the subject of forfeitures, etc., have no application to the case before us. Decree affirmed and appeal dismissed at appellant's costs. ROWAN V. ROWAN. ski had agreed to buy from Mrs. Modrzsnyka et al. The contract for the purchase of the real estate between the parties thereto was originally a verbal one, and by its terms Kurzawski agreed to pay for the said property the sum of 1800 Prussian thalers in cash. It was contended on January 4, 1897. STERRETT, C. J. This case the part of Schneider that this money was to be was argued with F. M. Teufel, to use, against paid to him in full before he began proceedings the same defendant, No. 82, Oct. term, 1896, in in Germany for the transfer of the property. which an opinion has just been filed. In both Kurzawski paid at various times up to Februcases, the facts are substantially the same, and ary 9, 1895, to Schneider sums of money aggrethe questions of law are identical. For reasons gating $1020, when Schneider says he agreed to given in the opinion referred to there is no error begin proceedings in Germany and to wait for in the record. the balance of the purchase money until the final Decree affirmed and appeal dismissed at appel- consummation of the contract. lant's costs. W. M. S., Jr. The title to the real estate in Germany was somewhat involved. A half interest was vested in Mrs. Modrzsnyka, and the other half was in several children by her deceased husband, some of whom were minors. It was explained by Mr. Schneider, as an expert on the laws of Germany, that under the laws of Germany both the vendor and the vendee of property situate in that country are obliged to appear in open court, either in person or by at |