(215 Pa. 418) SMITH et al. v. EQUITABLE TRUST CO. (No. 2).

(Supreme Court of Pennsylvania. May 24, 1906.)

1. LIENS-PROPERTY IN POSSESSION OF THIRD

PERSON.

An owner of goods agreed to give a bank a lien on the same for advances inade. The goods at the time were in the hands of a commission merchant. Held, that such lien was enforceable as against the general creditors of the owner or his assignee for the benefit of the creditors.

2. ASSIGNMENTS FOR BENEFIT OF CREDITORS -RIGHTS OF ASSIGNEE.

A voluntary assignee for creditors is the mere representative of the debtor, enjoying his rights only, and is not a bona fide purchaser for value.

[Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Assignments for Benefit of Creditors, §§ 725, 726, 742-744.]

Appeal from Court of Common Pleas, Philadelphia County.

Action by C. Shillard Smith and others, trading as Philip Jagode & Co., against the Equitable Trust Company and others. From an order dismissing exceptions to report of referee, the Equitable Trust Company appeals. Dismissed.

Argued before MITCHELL, C. J., and FELL, POTTER, ELKIN, and STEWART, JJ.

N. Dubois Miller and George L. Crawford, for appellant. V. Gilpin Robinson, for appellee.

POTTER, J. The Equitable Trust Company as assignee and receiver of Keen-Sutterle Company claimed that the balance of the fund in the hands of Jagode & Co. should be awarded to it. The referee disallowed the claim, and exceptions were dismissed by the court below. The trust company has taken this appeal claiming that the Tradesmen's National Bank had nothing more than a secret lien in the way of a pledge or mortgage, and that its title could not prevail against the receiver.

Counsel for appellant seems to concede that Moors & Co. are entitled to be paid out of the fund, and the argument is directed only against the claim of the Tradesmen's National Bank. But as the claim of Moors & Co. is sufficient to absorb the entire fund, if the claim of the bank be excluded, it is not apparent how the trust company as receiver can participate in any event.

The findings of fact by the referee and his conclusions of law, as to the point in question, are as follows: (3) The four "Turtle Receipts," Nos. 2,792, 2,794, 2,795, and 2,796, given the bank by Keen-Sutterle Company, taken in connection with entries on books of Keen-Sutterle Company and the memorandum accompanying the collateral note, sufficiently described certain wool then in possession of Keen-Sutterle Company (being the 312 bales described in invoice No. 3,392, covering

shipment of wool per steamship Maryland from Suffert, VonLaer & Co., of London) to sustain an equitable lien thereon as against Keen-Sutterle Company. (4) The Turtle Receipts were not warehouse receipts (Trademen's Nat. Bank v. Thomas Kent Mfg. Co., 186 Pa. 556, 40 Atl. 1018, 65 Am. St. Rep. 876) but taken in connection with promissory note given by Keen-Sutterle Company to the bank, the memorandum accompanying the same and the entries on the books of KeenSutterle Company, they sufficiently evidence an intent on the part of Keen-Sutterle Company to give the bank an equitable lien on the goods therein described as security for the payment of said note. (5) Subject to the factor's lien of Jagode & Co. the bank is entitled to the proceeds of the 183 bales claimed by it.

We have found no reason to question the correctness of these findings. When the bank made the loan, it had title to the wool, as against Keen-Sutterle Company, and the right of possession. Under the authorities cited by the learned referee, we think the right of the bank was good as against general creditors, and against the assignee. The wool was turned over to Jagode & Co. prior to the time of the insolvency of the Keen-Sutterle Company, and was not in the physical possession of the latter when the receiver took charge. The referee cites from the opinion of this court in Wright v. Wigton, 84 Pa. 163, as follows: "It is well settled in this state, by numerous decisions, that a voluntary assignee is not a bona fide purchaser for value. He is the mere representative of the debtor, enjoying his rights only, and is bound where he would be bound. Twelves v. Williams, 3 Whart. 485, 31 Am. Dec. 542; Vandyke v. Christ, 7 Watts & S. 373; Ludwig v. Highley, 5 Pa. 132; In re Fulton's Estate, 51 Pa. 204; Spackman v. Ott, 65 Pa. 131. Nor are the creditors for whom he holds the property in trust purchasers for value. They are not parties to the deed. They have relinquished nothing in compensation of the benefits of the trust. They have not agreed to look to it for satisfaction of their claims. They have no title to the prop erty assigned. They acquire a right to enforce the duty undertaken by the assignees." The referee goes on to show that in our state under the doctrine of Collins's Appeal, 107 Pa. 590, 52 Am. Rep. 479, an agreement by a debtor to give his creditors an equitable lien upon personal property retained in the possession of the debtor, is good as between themselves and will be enforced in equity. We agree with his application of the law to the facts of this case as expressed in the following statement: "While the goods were then in the possession of Jagode & Co., they were in their hands as factors or agents of the Keen-Sutterle Company, and it was entirely competent for the Keen-Sutterle Company to have agreed with the bank at that time that it should have a lien, subject to the

factor's lien of Jagode & Co., upon these goods as security for its debt, and, as shown by the cases already cited, such an agreement would be valid and enforceable as against the general creditors of Keen-Sutterle Company or the assignee for the benefit of such creditors." The rigor of the rule requiring the purchaser to take and keep possession of personal property in order to hold title has been somewhat relaxed. "The law does not have or set up an unbending test to be applied to all cases." White v. Gunn, 205 Pa. 229, 54 Atl. 901; Riggs v. Bair, 213 Pa. 402, 62 Atl. 1086.

In the present case, we agree entirely with the conclusions of the referee, which have been approved by the court below, as to the questions raised by this appeal.

None of the assignments are sustained, and the appeal is dismissed.

(215 Pa. 393)

COOKE v. DORON.

(Supreme Court of Pennsylvania. May 24, 1906.)

1. ALIENS-TENANCY BY CURTESY.

An alien husband is entitled as tenant by the curtesy to the real estate of which his wife died seised under Act Feb. 23, 1791 (3 Smith's Laws, p. 4), providing that alien citizens shall be capable of taking, by devise or descent, real property in the same manner as citizens of the state.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Aliens, §§ 18-20.]

2. SAME "DESCENT."

The word "descent" as used in Act Feb. 23, 1791 (3 Smith's Laws, p. 4), providing that an alien can take by descent lands in the same manner as a citizen of the state, applies to the tenancy by the curtesy; which is a tenancy by descent, and not by purchase.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Aliens, §§ 20-25.]

Appeal from Court of Common Pleas, Bucks County.

Action by Joseph C. Cooke against William E. Doron. Judgment for plaintiff, and defendant appeals. Affirmed.

Case stated to determine title to an interest in real estate. Catharine H. Doron, was a sister of the defendant and seised with him as tenant in common of certain real estate in Bucks county. In 1893 she married Joseph C. Cooke, the plaintiff. Mrs. Cooke died on August 16, 1894, intestate and without issue, leaving to survive her, her husband, the plaintiff. It further appeared that Joseph C. Cooke was at the time of his marriage and has continued to be a citizen of the United Kingdom of Great Britain and Ireland. During the lifetime of Mrs. Cooke the defendant had charge of all the real estate of which he and his sister were tenants in common, and collected the rents thereof. After the death of Mrs. Cooke, the defendant refused to recognize that the plaintiff had an interest in the land as tenant by the curtesy, and refused to account to him for one-half of the rents

which he had collected. The court entered judgment for plaintiff for $3,272.

Argued before MITCHELL, C. J., and ᎷᎬᏚᎢᎡᎬᏃᎪᎢ, POTTER, ELKIN, and. STEWART, JJ.

Alex. Simpson, Jr. and Howard I. James, for appellant. Ruby R. Vale, Hugh B. Eastburn, and Edward W. Magill, for appellee.

ELKIN, J. The question raised by this appeal is whether an alien husband is entitled as tenant by the curtesy to the real estate, or the interest therein, of which his wife died seised. At common law an alien cannot be tenant by the curtesy in this state. This rule is not questioned, and cancases. not be under the authority of our Jackson's Lessee v. Burns, 3 Bin. 75; Orr v. Hodgson, 17 U. S. 453, 4 L. Ed. 613; Rubeck v. Gardner, 7 Watts, 455; Reese v. Waters, 4 Watts & S. 145. The burden is therefore on an alien husband to point to the act or acts of Assembly giving him the right to take such an estate in order to support his claim thereto. There are a number of statutes relating to the rights of aliens, but the Act of February 23, 1791 (3 Smith's Laws. p. 4,) is mainly relied on by the court below, and by the appellee here. It provides "that alien citizens shall be capable of acquiring or taking by devise or descent lands and other real property within this commonwealth in the same manner as citIzens of this state may or can do."

The language of this act would seem to be broad enough to include a tenancy by the curtesy, but it is contended with much force that it has not been so construed, and that a different construction must have been placed upon it in Reese v. Waters, 4 Watts & S. 145. It is true it was decided in that case that an alien husband acquired no title in his wife's real estate of inheritance as tenant by the curtesy initiate. It was there contended that the act of 1818, which allowed aliens to purchase real property subJect to a limitation as to quantity, gave an alien husband the right to take as tenant by the curtesy. In the decision of that case it was held that the act of 1818 did not inIclude such an estate because it was doubted whether the verb "to purchase" as used in the act could be considered equivalent to or synonymous with the words "to take by purchase." That case seems to have been ruled on this ground alone. The act of 1791 was not mentioned, and so far as the record shows was not considered. Whether It was deemed obsolete, not applicable, or Immaterial, under the facts of that case, we have no means of ascertaining. It could scarcely have been regarded as obsolete because in Rubeck v. Gardner, 7 Watts, 455, decided in 1838, four years before Reese v. Waters, it was recognized as in force, but held inapplicable to the facts of that case on the ground that the heir or devisee of

an alien could not take and enjoy a greater and more entire estate than the alien ancestor himself had. It is therefore a fair inference that the act of 1791 was either overlooked, or considered inapplicable under the particular facts upon which the case of Reese v. Waters was decided. The fact is, however, that in no reported case has the word "descent" found in the act of 1791 been construed by this court as applied to a tenant by the curtesy. This act has not been repealed in express terms, nor by necessary implication, and does not contain any limitation as to time. It must therefore be considered in force and effect.

Counsel for appellant concedes this position, but contends that the word "descent" as used therein does not technically include a tenancy by the curtesy. In answer to this position it may be said that all modes of acquiring title to real property may be reducible to title by descent and title by purchase. The first includes title by act or operation of law, the second title by act or agreement of the parties. 4 Kent's Commentaries, p. 446; Pingrey on Real Property, pp. 116, 118; 1 Boone on Real Property, § 262. It is no doubt true that some estates are difficult to classify under these general divisions of title. It may also be conceded that an estate by the curtesy is one of these. However, it is clear, on principle, that a tenancy by the curtesy is more in the nature of an estate by descent than by purchase. The great weight of authority is to this effect. Titles by curtesy and in dower, arising by operation of law upon the death of the wife or husband as the case may be, seem to fall properly under the head of title by descent. 4 Kent's Commentaries, p. 374. It devolves upon him (the husband) as the estate of an ancestor does upon an heir. 1 Washburn on Real Property, p. 343. An estate by curtesy occurs by mere operation of law upon the death of the wife, and for that reason partakes more of the character of an estate acquired by descent than purchase. 1 Kerr on Real Property, 627. He (the husband) takes it by operation of law as by descent. 1 Tiffany on Real Property, p. 501. It is an estate by descent, and has therefore been held to be subject to all the equities in respect to it as against his wife. Fallon on the Law of Conveyancing in Pennsylvania, p. 555. An estate by the curtesy consummate partakes more of the character of an estate acquired by descent than of one acquired by purchase. 8 Am. & Eng. Enc. of Law (2d Ed.) p. 517. These text-writers are supported by some of our adjudicated cases. Mr. Justice Yeates in Lessee of Pemberton's Lessee v. Hicks, 1 Bin. 1 said: "It is, however, settled that tenants by the curtesy and in dower come in by descent merely by act of law." To the same effect are the cases of other jurisdictions. Watson v. Watson, 13 Conn. 83; Witham v. Perkins, 2 Me. 400.

We have examined with care the able argument of counsel for appellant relating to this question, but have not been convinced that the word "descent" in the act of 1791 does not include an estate by the curtesy. We can see no reason why an estate which devolves upon the husband by operation of law at the death of his wife should not be regarded as taken by descent. The trend of our legislation has been to treat alien friends in these respects as citizens. The decision in Reese v. Waters was followed by the act of April 16, 1844 (P. L. 274); and while we are not prepared to accept as final and conclusive the view of the court below, not without merit, that this act should be construed to be retrospective as to lands acquired by purchase and prospective as to lands taken by descent, it, however, uoes show that our Legislature was blazing the way to the opendoor policy in dealing with the right of aliens to acquire and hold real property. Our attention has not been called to any case de cided by this court nor have we been able to find any that expressly holds an estate by the curtesy is not one taken by de scent. In Commonwealth v. Detwiller, 131 Pa. 614, 18 Atl. 990, 992, 7 L. R. A. 357, 360, Mr. Justice Williams in discussing the enabling statutes so far as they relate to aliens, said: "Even as to real estate, the distinction as between a resident alien friend and a citizen has disappeared in Pennsyl vania, and nearly every other state in the Union." The learned Justice referred to the act of 1807, wherein it is provided generally that alien friends resident within our state may purchase lands, tenements, and here ditaments and have and hold the same in fee simple or any lesser estate, as fully to all intents and purposes as the natural-born citizen may do. Counsel for appellant rec ognizes the force of the doctrine announced in that case, but insists that the general discussion relating to the right of aliens is obiter dicta. This may be conceded, but it is a judicial suggestion at least that courts will not be astute in the application of refined distinctions in support of a public policy, once considered wise, but now disavowed and almost forgotten in the broader humanity manifested in the reciprocal relations of states and nations governed by the AngloSaxon race. "Cessante ratione, cessat ipsa lex." The tendency of our legislation has been to enable aliens to take, hold and purchase real estate and other property in the same manner as other citizens. This is clearly indicated by the act of May 1, 1861 (P. L. 433), which provides that "aliens may hereafter purchase and hold real estate in this state, not exceeding in quantity 5,000 acres, nor in net annual income $20,000.” The evident intention of this act was to enable aliens to purchase property within the limitations as to quantity and value named, and to hold property within the same limits

tions. The legislative meaning may be in doubt. It may be that the word "hold" as used in this act only applies to property actually purchased. It is not necessary, however, to give it this restricted meaning, and we see no reason why it may not apply to any estate which an allen takes or holds from any source; that is to say, an estate by descent, by purchase or in any other way, if, as contended, there is some other way to acquire title. The primary significance of the word "hold" as it relates to real property is to enjoy and possess, and certainly an estate by the curtesy can be enjoyed and possessed by the tenant. If the word "descent" in the act of 1791, or the words "purchase" or "hold" in the act of 1861 include in either act an estate by the curtesy, the judgment of the court below must be affirmed. If it is an estate by descent, it is included in the act of 1791. If it is an estate by purchase, it is covered by the act of 1861. Then, again, if the word "hold' as used in the latter act relates to any kind of title, as by descent, or purchase, or otherwise, the contention of appellant cannot prevail. In either view the appellee is entitled as tenant by the curtesy to the enjoyment of the real estate of which his wife died seised. It requires a nicety of refinement, not convincing to the court, to hold that an estate by the curtesy does not come within the meaning of any of these provisions of our statutes. The common-law rule is harsh and unjust, without Justification under existing governmental conditions, and manifestly at variance with the spirit of our institutions and the conscience of our people. Fortunately our statutes do not require its enforcement. Judgment affirmed.

Where petition was filed for the appointment of a guardian, and it was shown that re spondent was mentally weak and that he had exchanged the whole of his personalty recently acquired by inheritance, for an interest in manufacturing corporation, and neither knew how much he was to pay for it, nor how much he was to get, nor its value, the petition was properly granted under Act June 25, 1895 (P. L. 300) as amended by Act June 19, 1901 (P. L 574).

[Ed. Note.-For cases in point. see vol. 27, Cent. Dig. Insane Persons, §§ 43-45.]

3. JURY-RIGHT TO JURY TRIAL.

Act June 25, 1895 (P. L. 300) as amended by Act June 19, 1901 (P. L. 574) gives a party against whom proceedings are taken for the appointment of a guardian a right to demand a jury trial, so that it does not violate the Declaration of Rights providing that the right to a jury shall remain inviolate.

[Ed. Note. For cases in point, see vol. 31, Cent. Dig. Jury, §§ 112, 204.]

Appeal from Court of Common Pleas, Erie County.

In the matter of the petition of the directors of Erie county for the appointment of a guardian for Charles B. Colt. From an order appointing a guardian, Colt appeals. Affirmed.

The court below entered the following decree: "And now, April 3, 1905, due notice of the proceedings in above case having been given according to law, and Charles B. Colt, the party against whom the proceedings were taken, having been present at the hearing, and the court having heard all the testimony offered on both sides, including that of said respondent, the court being clearly satisfied that said Charles B. Colt is not able, owing to weakness in mind, to take care of his own property, the court does so decide and decree, and L. B. Jones, Esq., is appointed guardian to take care of the property of said Charles B. Colt. The costs of this proceeding to be paid out of respondent's estate. Said guardian to give bond in the sum of $5,000."

Argued before FELL, BROWN, MESTREZAT, POTTER, and ELKIN, JJ.

L. E. Torry, for appellant. Frank Gunnison and Miles R. Nason, for appellee.

PER CURIAM. In Hoffman's Estate, 209 Pa. 357, 58 Atl. 665, it was said by the present Chief Justice that the act of June 25, 1895 (P. L. 300), "establishes a legal status or condition, intermediate between normal mental capacity and insanity or lunacy, a state of weak or enfeebled mind, neither mens sana nor non compos mentis," and that it is a "dangerous statute easily capable of abuse by designing relatives to accomplish the very wrong intended to be guarded against, and therefore to be administered by the courts with the utmost caution and conservatism." This act and the act of June 19, 1901 (P. L. 574) amending it, permit interference with the primary right of a person to control and dispose of his own estate during his life. Such interference should not be allowed except in clear cases for the benefit of a person unable to care for his property. Bryden's Estate, 211 Pa. 633, 61 Atl. 250.

The testimony in this case, however, fully warrants the findings of fact and the decree based on them. It appeared at the hearing that the appellant was, because of mental weakness, unable intelligently to