corded titles of bona fide purchasers must prevail, even against undiscovered fraud, however plain be the right of the defrauded party to relief against the wrongdoer.

"In our case there is no allegation of fraud on the part of Stover. Careless dealing on both sides, no doubt, there was. But as early as June 1, 1881, Mary Farren had a written paper which could protect her right either by recording it or by proceeding upon it, and yet for 21 years she remained supine and inactive. She certainly has no undiluted equity. The plaintiff, on the other hand, at the time of the mortgage, dealt only with Stover, owner of the land and owner of the rent. It would have been, not only inequitable, but absurd, for Stover to meet Frank by telling him that the latter's mortgage was postponed to a rent which he owed himself. Under such circumstances merger is inevitable. A man cannot mortgage his land and then defeat the pledge by declaring that he has split up the land into two estates, both his own, one of which is exempt from the pledge. Only a solid equity can prevent a merger under such circumstances. This we do not think existed either in Stover or in Mary Farren. We are of the opinion that the plaintiff is entitled to relief prayed for."

The court entered the following decree: "(1) That ground rents upon premises Nos. 2210 and 2212 Fitzwater street, Philadelphia, reserved by Lewis Stover and con

*

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veyed by the said Stover to the defendant company, are merged, extinguished, and discharged, and have no existence as estates in, or encumbrances upon, the said premises; (2) that the defendant company deliver up the said assignment to the plaintiff to be canceled, and that the said defendant company acknowledge, execute, and deliver to plaintiff a deed of extinguishment of the said ground rents."

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

John G. Johnson, for appellant. Stanley Folz and Leon H. Folz, for appellee.

MESTREZAT, J. In the adjudication the learned trial judge has found and stated at length the facts of the case and given sufficient reasons to sustain the decree which was entered by the court below. As said by him, the only question for determination is whether the mortgagee took subject to the ground rents or free and clear of them. We think that the rents were merged in the fee when Frank acquired his mortgage from Stover in 1880. The defendant denies the merger, because as it alleges (a) there was an intermediate estate between the title to the land and the rents in one Albert Soley; and (b) Stover held the rents in trust for Mary C. Farren, subsequently Mrs. Mary C. Penrose, now deceased. It is settled that a

ground rent does not merge by the purchase of land out of which it issues by the owner of the rent, where there is an intervening estate in or charge on the land held by a third party, a stranger to the title to the fee. The alleged intermediate estate in Soley was a mortgage created by a former owner of the title to the ground in favor of Stover. After the latter's death the mortgage was found in his possession, and on the back of it was written in his handwriting, in pencil, the words: "This mortgage is held for Albert Soley-Int. fr. Dec. 9/76." For the reasons stated by him, the learned trial judge held that the title to the mortgage was not shown to be out of Stover, the mortgagee, or in Soley, and that "any interest of any person other than the said Lewis Stover, or any trust in favor of any person, then existing in said ground rents, was a secret interest or trust, of which the said Philip Frank had no notice or knowledge of any sort or kind whatsoever when he took the $3,000 mortgage upon the said premises upon June 1, 1880, as aforesaid." This language properly characterizes the title of Soley or any person other than Stover to the mortgage. Whatever may be the rights of Stover and Soley to the mortgage as between themselves, it is certain that it cannot avail the defendant as an intermediate charge or estate to defeat or impair the title of the plaintiff to the property in dispute. Neither he nor Frank, the mortgagee, through whose title he claims, had notice, actual or constructive, of the title to the Loughery mortgage being in a person other than Stover. A mortgagee is a purchaser, and, as said by Mr. Justice McCollum in Logan v. Eva, 144 Pa. 312, 22 Atl. 757, "it is well settled that a purchaser of land is unaffected by a secret trust or equity unknown to him, and that he may pass title thereto, untrammeled by the trust, to a person who has notice of it." "Secret liens or trust," says Kennedy, J., in Brown v. Simpson, 2 Watts, 233, "are not to be encouraged upon any species of property whatever; but in no case can such a thing prevail as to real estate against an innocent purchaser of it for a full and valuable consideration without notice, unless our recording acts are to be overturned and set aside."

The facts of the case negative the defendant's theory that Stover regarded himself as holding the Loughery mortgage in trust for Soley, and show that the mortgage was apparently worthless. Two years after his interest in the mortgage is supposed to have passed to Soley, Stover entered judgment in his own name on the bond accompanying the mortgage and issued execution thereon, which was stayed by the court on the allegation that the mortgage and bond were given without consideration. Soley was not a party to or known in these proceedings. We think that, under the facts disclosed here,

Stover was the owner of the mortgage, the estate intermediate between the ground rents and the title in fee to the land acquired by him, and that consequently it did not prevent the merger of the rents in the fee. Stover was the owner of the ground rents in 1874, and there was nothing of record to show that he did not own them in June, 1880, when Frank took from him the mortgage on which the property was sold and conveyed by the sheriff to the plaintiff. The first written evidence of Mary C. Farren's interest in the rents is the agreement of June 1, 1881, a year after Stover had mortgaged the land to Frank. There is no allegation that Frank had any knowledge of the ownership of the rents other than what the record disclosed, which was that the title was in Stover. When Frank took the mortgage on the land from Stover in 1880, with full covenants and without excepting therefrom the ground rents, the record owner of both the land and the rents was Stover. This, under all the authorities, was an extinguishment of the rents or a merger of them in the title to the land held by Stover. The two estates had united in Stover, and his act in conveying the title in fee was a declaration of his intention to extinguish the rents, and, as to him, it was irrevocable. Ames v. Miller (Neb.) 91 N. W. 250. There was, therefore, a merger of the rents in the title to the ground, and of this a grantee of the rents was required to take notice, so far as third persons without notice were affected. He could occupy no higher ground than Stover himself. The record showed that the titles to the two estates were in Stover at the same time, and that he then conveyed without exception or reservation the title to the land in fee to Frank. This disclosed record notice that the ground rents had by the act of Stover, the owner thereof, been merged in the title to the land which he had conveyed to another, and therefore that the rents could not, in 1881, be conveyed by him to Miss Farren. She is presumed to know the law, and, the facts appearing from the record, she is charged with notice of their legal effect. When, therefore, on June 1, 1881, she accepted Stover's written declaration that he would hold the ground rents for the use of Miss Farren, she is presumed to have known that the rents were extinguished, or "sunk or drowned," in the title to the land, and had passed with it beyond his control and ownership.

The fact that the sheriff sold the land subject to the ground rents did not prevent their subsequent merger, nor was it notice to Frank, the mortgagee, that they were subsisting incumbrances when he took his mortgage. The judgment on which the sale was made was a lien on Mrs. Loughery's title to the land which was subject to the rents, and the sale made by the sheriff on the execution was necessarily subject to the rents, and

Stover, the purchaser, took the fee thus incumbered. Prior to the time the fee was thus vested in him, there was no merger; but, when it was vested in him by the sheriff's sale, he being the owner of the rents, the two estates coalesced or united in him, and thereafter he could convey them to separate parties, or merge them and convey the fee, as he did, to one party. A judgment creditor would have a lien on the merged estates or fee, and a sale on execution would pass the whole title. Kreamer v. Fleming, 191 Pa. 534, 43 Atl. 388; Id., 200 Pa. 414, 50 Atl. 233. In this case the widow purchased from her children the fee in real estate in which she had a dower interest. In speaking of the effect of the widow's purchase on her dower estate, the present Chief Justice, delivering the opinion in the case, says: "When she purchased the children's estate, she purchased the fee they had, and her own life interest merged in it. It might be that as between the parties no merger was intended, though it is not apparent what interest they had to support such intention; but as to third parties no such intent could control the legal effect and operation of their acts. A conveyance by appellant (the widow) without express reservation of dower would have carried a clear fee, and she could not have set up against it the intention of the parties in the conveyance to her. So a levy and sale by a creditor on a judgment against her would have been of the fee.

There was no question of a discharge of dower or the sale of a life estate. The dower had merged, the sale was by a creditor on a judgment, and was of the fee vested in the judgment debtor."

The learned judge was clearly right in holding that the trust in fee of Miss Farren in the ground rents was, as to the plaintiff, effective only from June 1, 1881, the date of the written declaration executed by Stover, and that the declaration was not competent evidence of the antecedent facts which it stated. It is, indeed, a singular proposition that two parties may, by a written agreement executed by them, make a statement of alleged facts therein contained evidence to defeat the title to real estate of a third party who had no knowledge of the agree ment or its contents. The fallacy of the proposition is so apparent that it needs no discussion. On June 1, 1880, when Stover conveyed the land in mortgage to Frank, the former was the record owner of the title to the land and to the ground rents, as well as the holder of the Loughery mortgage. There was, therefore, no intermediate estate or charge held by a third party between the rents and the fee, and there was nothing in the mortgage to indicate Stover's intention to prevent a merger of the rents in the title to the land. It follows that the rents were extinguished, and that the fee in the land passed by the mortgage to Frank dis

charged of them and is now held by the plaintiff by virtue of the sale made by the sheriff on a writ issued on the judgment obtained on the mortgage.

The decree is affirmed.

MITCHELL, C. J., and FELL, J., dissent.

(216 Pa. 119)

TROUT et al. v. WAYNESBURG, G. & M. TURNPIKE CO.

(Supreme Court of Pennsylvania. June 27, 1906.)

DEFECTS IN ROAD

PROXI

TURNPIKES MATE CAUSE. In an action against a turnpike company for injuries received by alleged defects in a road, evidence held insufficient to show that such defects were the proximate cause of the injuries received.

Appeal from Court of Common Pleas, Fulton County.

Action by N. C. Trout and C. N. Trout, executors of William F. Trout, deceased, against the president, managers, and company of the Waynesburg, Greencastle & Mercersburg Turnpike Company. Judgment for plaintiff, and defendants appeal. Reversed. Argued before MITCHELL, C. J., BROWN, POTTER, ELKIN, and STEWART, JJ.

D. Watson Rowe, J. Nelson Sipes, and O. C. Bowers, for appellant. Sharpe & Elder and W. Scott Alexander, for appellees.

STEWART, J. However negligent the de fendant may have been in the maintenance of its roadway, its negligence in this regard can avail plaintiff only as it is shown to have been the proximate cause of the accident from which the injuries complained of resulted. This practically eliminates from consideration the circumstance that, on the side of the road close by where the accident happened, there was an accumulation of wood, deposited there from a chute on the mountain. D. Trout's injuries resulted primarily from the frightening of the horses he was driving. This is conceded. It is not pretended that the wood occasioned the fright. Therefore it is not an element in the case. For present purposes we adopt the facts contained in appellees' history of the case. "Just as they [Dr. Trout and Wissner, who was in the buggy with him] were passing around the wood, and were opposite the mouth of the chute, a piece or several pieces of cord wood came down the chute with a loud noise. One of these pieces of wood either struck the left-side horse, or struck immediately in front of him. The horses dashed or sprang towards the precipice. The wheels on the right-hand side went over the unprotected edge of the wall. The buggy tilted or slanted at a considerable angle in the direction of the precipice. Dr. Trout, a very heavy man instantly threw himself over towards the left against Wissner, forcing Wissner out of the buggy. Dr. Trout

was found by Wissner, lying unconscious near the middle of the road, 40 or 50 feet away from the place where Wissner had fallen." There was evidence in support of each fact contained in the above statement. One fact however, important to consider and to which we refer later on, is omitted. The cause of the fright on plaintiff's own showing was either the noise made by the timber in coming down the chute, or the striking of several pieces of timber upon the opposite side of the road from the chute, against one of the horses or in their immediate front. If it was the noise, it will hardly be contended that this was a matter for which the defendant could be held accountable. This feature of the case calls for no discussion. The defendant was not responsible for the noise, and had neither the right nor the power to suppress it. The chute was not on its land, and its operation with the noise as a necessary incident, was as legitimate as the use of defendant's road with its noise. If it was the latter cause, the casting of one or more pieces of timber over and upon the only side of the road open and unobstructed, and striking the horses or in front of them, it is quite as difficult to see how liability could attach to the defendant in such case. It was not the act of the defendant. If it was a negligent act, the party operating the chute would be properly chargeable with its consequences, but this negligence cannot be imputed to a third party except some privity be shown. It is urged that defendant, knowing that in the operation of the chute on the abutting owner's land there was danger of an occasional piece of wood being thrown upon the opposite side of the road, owed a duty to the traveling public to erect a barrier somewhere on the highway to protect travelers from just such accidents as here occurred. To this we cannot agree. It is carrying the doctrine of legal duty beyond any limit it has yet reached. One is required to use, employ, and maintain his own property in such a way that it shall not injure another, and this duty rests upon all alike. But there is no rule of law requiring the individual to so secure and maintain his property that trespassers, in their unlaw. ful use of the same, may not inflict injury upon others. Any such rule would not only be unreasonable but wholly Impracticable.

This brings us to the final question: The primary cause of the accident being the fright of the horses, for which defendant was not responsible, was there an intervening, selfoperating cause for which defendant was responsible and of which negligence may be affirmed? There is the fact that the outer wheels of the buggy were carried over the unprotected edge of the road as the result of the horses' fright. Assume that this could not have occurred had there been a guard rail at that side of the roadway, how does the evidence connect the circumstance that the wheels went over the edge of the road, with

the final accident from which the injuries resulted, so as to make it the proximate cause? An important fact not heretofore alluded to, and one necessary to a proper understanding of the case on this point, should here be mentioned, the wheels were over the edge of the road for only a distance of about three feet before they recovered the roadway. This is testified to by a witness for the plaintiffs, Mr. Little, and his testimony on the subject stands alone and is uncontradicted. Were this an action by Wissner, who at this point was thrown from the buggy, by Dr. Trout's effort to avoid being carried down the precipice, it might be argued with much reason, that the absence of the guard rail at this place was the immediate proximate cause of any injury he was shown to have sustained in his fall. Had the guard rail been there, the wheels would not have gone over the edge, and the effort that threw him from the buggy would not have been necessary and would not have occurred. With like reason and with equal force it could be so argued with respect to Dr. Trout, if there had been any evidence that would have warranted the jury in finding that he sustained his injuries at this point of time and place. In such case the injury would be traceable directly to the absence of the guard rail as the efficient cause. But no one saw him fall from the buggy. He alone knew when and where it occurred. When Wissner found him he was lying in the middle of the road at least 40 feet above the place where the wheels were over the edge. The buggy was found some distance beyond uninjured and intact. Under such circumstance how can his accident be referred to the passing of the wheels over the edge of the road? How could such circumstance have contributed to the accident? The appearance of the injured man and the condition of his clothing might afford a basis for conjecture that he had been dragged some distance after his fall. But more than conjecture, even though it be not unreasonable, is required as a basis for recovery. The burden in such cases is always on the plaintiff to show the causal connection between the accident and the negligence alleged. This may be done by showing facts and circumstances from which the connection may be inferred by process of rational deduction, but never by speculation. Admitting that the evidence warranted an inference that the injured man had been dragged, what is there to warrant the further inference that would have to be supplied somehow before liability could attach to the defendant, that he had been dragged from the place where the wheels passed beyond the edge of the road? Except as he fell from the buggy at that point in consequence of this particular circumstance of the wheels being off the road where a guard rail would have prevented such an occurrence, the accident cannot be attributed to the negligence alleged. When the buggy

regained the roadway uninjured, whatever péril Dr. Trout had encountered because of the absence of the guard rail, had been safely passed. To the frightening of the horses as both the primary and proximate cause, this unfortunate accident must be referred. The evidence justifies no other conclusion. Since for this defendant was not liable, there was nothing to submit to the jury, and the defendant's fourth and fifth points, asking for binding instructions, should have been affirmed.

The assignments of error based on their objection are sustained, and the judgment is reversed.

(216 Pa. 132)

MILLCREEK TP. v. ERIE RAPID TRANSIT ST. RY. CO. et al.

(Supreme Court of Pennsylvania. June 27, 1906.)

STREET RAILROADS-FRANCHISE-FORFEITURE. Where a street railway company obtained a franchise from a township to lay its tracks on a public road, with a provision that, when required by the township, it would remove its track from the side to the center of the road, after the road has been constructed, the township cannot declare a forfeiture of the franchise on refusal of the railway company to so move the track, where it was impossible, because the abutting owners on one side of the road would not give their consent to the construction of the track in the center of the road.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, §§ 50-54.]

Appeal from Court of Common Pleas, Erie County.

Bill by the township of Millcreek against the Erie Rapid Transit Street Railway Company and Henry F. Walton. Decree for defendants, and plaintiff appeals. Affirmed.

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

John S. Rilling and Henry E. Fish, for appellant. Dwight M. Lowrey, Alfred R. Haig, Henry C. Thompson, Jr., William F. Harrity, and S. A. Davenport, for appellees.

PER CURIAM. It is found by the court below that the defendant company, with the consent of the road authorities of the plaintiff township, laid its tracks upon the south side of the highway, and has operated on them as a street passenger railway since 1901; further, that the consent of the said authorities was with a reservation of the right to require the company "at any time to remove its tracks from the side of said road to the center thereof," and that the road authorities, in pursuance of this reserved right, have directed the company to so remove the tracks. The defendant having failed to obey the direction, this bill was filed, inter alia, for a mandatory injunction to make the removal. The answer of defendant set up, among other things, that it had not been able to secure the consent of the