new year was really paid for the last month of (Stevenson v. Stewart, 7 Phila. 293), and hence the old year. The receipt is so worded.

The maxim "De minimis non curat lex" does defendant, against the protest of the plaintiff, not apply in Pennsylvania.

dedication was by parol, but the continuous and Jan. '87, 66, 67, 68.
notorious user of the premises, in accordance July '87, 134, 135.
therewith for thirty years, or more, establishes
the common right. There is therefore no doubt-

February 7, 1888.

Weaver v. Sheeler.

Legal title-Practice.

ful question of title to the right of way which Mechanic's Lien-Evidence-Equitable titlemust first be settled at law in order that equity may adequately protect the possessor in the enjoyment.

The bills filed with a mechanic's lien, are not admissible in evidence in support of the plaintiff's claim, unless their correctness is not denied by the affidavit

of defence.

Where materials have been furnished for building under a contract, with one holding an equitable title, the mechanic's lien therefor attaches to the equitable interest in the premises only, and cannot be supported when filed naming a subsequent purchaser of the legal title as "owner or reputed owner" without proof that such party holds the equitable title of the party under whom the building was erected.

Writs of error to the Common Pleas of Chester County.

Scire facias sur mechanic's lien, by Howard E. Sheeler against John Weaver, owner or reputed owner, and the Pennsylvania Granite Company, contractor. Three cases presenting the same facts and tried together.

But there is nothing to indicate any particular purpose, for which the alley was originally designed, or that Peterson dedicated it to the common public use, under any limitations, restrictions or conditions whatsoever. We must assume, therefore, that the alley was designed for the use of the lots in common, for such purposes as an alley may ordinarily be applied. Nor is any inference of the existence of any restriction to be drawn from the manner in which the alley was used, for the use of it has been in accordance with the general purpose stated. At first ashes were thrown upon it to keep it dry, and people passed and repassed along it at their pleasure. Ditches were dug, from time to time, upon it for drainage of the waste and surface water accumulated on the lots. It seems to have been used as any other alley similarly situated. Finally it was paved with brick and continued in this condition On the trial, before FUTHEY, P. J., the followuntil the defendant put in his sewer. If it was ing facts appeared: The plaintiff, Sheeler, filed not restricted in its dedication, and has been used the liens in question against a tract of land in for the general purpose of an alley, the mere fact Warwick Township, for materials furnished for that it has as yet been used only for a passage the erection of buildings thereon, as appeared way, and for drainage of the surface water, would by the itemized bills filed with his claims, not of necessity restrict it to these purposes in the between September 4 and October 27, 1885. future; the use to which it may be applied would These materials were furnished to a partnerdepend upon the growth of the city, the improve-ship known as the Pennsylvania Granite Comment of the adjacent property, and the municipal pany, which was at the time in the occupancy of regulations affecting the public health. Upon said tract of land, prospecting for and testing the what evidence can it be said that the property- works of a granite quarry. The contract for these holders adjacent to this alley were simply entitled materials was made by one James E. Neall, who to a passage way and to the drainage of the sur-directed that it should be charged to the Granite face-water. If it might be used for the drain- Company. There was evidence that Neall, who age of the surface-water, why not for the drainage of any other accumulations which might come upon the premises in the ordinary and natural user of the property.

had an interest in the company, had made a verbal contract for the purchase of the land, and had paid some money thereon. At the time these materials were furnished the legal title to the land was in Davis Knauer and Josiah Keim, who were in no way connected with the Penna. Granite Company, nor shown to have in any way made their title subject to lien for the operation of said company. On December 30, 1885, two months after the last item of material was furnished by the plaintiff, John Weaver purchased from Knauer and Keim, their legal title.

The Court permitted the plaintiff to put in evidence the bills filed with the claim, against the objection of the defendant, he having denied their correctness in his affidavit of defence. Exception. (First assignment of error.)

The defendant requested the Court to charge:

"That there is no evidence in the case to connect | the plaintiff in error, has been qualified by Wolf the lien in suit with the title of John Weaver, v. Batchelder (6 Smith, 87).

and in the absence of such evidence a verdict cannot be rendered against said John Weaver or his title."

Odd Fellows' Hall r. Mather, 12 Harris, 510.
Noar v. Gill, 17 WEEKLY NOTES, 333.
Presbyterian Church v. Allison, 10 Barr, 413.
There is no error in filing the claim against a

Sullivan v. Jones, 5 Wharton, 369.
Jones v. Shawhan, 4 W. & S. 262.
Knabb's Appeal, 10 Barr, 189.
Church v. Shreiner, 7 Norris, 126.

Answer. It appears from the evidence that at the time this lumber was furnished the defend-person who has purchased after the building is ants, the title to the property was held by Mr. finished, but before the claim is filed, and who Knauer and Mr. Keim, that James E. Neall made remains the owner, or reputed owner, at the time it is filed. a contract of purchase with Mr. Knauer, and paid $10 at the time, but that John Weaver, whose name appears in the liens as owner or reputed owner, was not in reality the owner. The liens are filed against John Weaver, owner or reputed owner, and the Pennsylvania Granite ComFebruary 13, 1888. THE COURT. This was pany, contractor, as defendants. The point pre-a sci. fa. sur mechanic's lien. On the trial the sented by the defendants, requests the Court to Court was asked to instruct the jury" that there instruct you that, inasmuch as John Weaver was is no evidence in the case to connect the lien in not the owner of the premises until after the ma- suit with the title of John Weaver, and in the terial was furnished, the liens should have been absence of such evidence the plaintiff cannot refiled against the person in possession of the premi-cover." ses at the time the material was furnished. I in- In response to this request the Court instructed struct you, however, that the liens were properly filed, if they could be filed at all against John Weaver, as owner or reputed owner, the testimony showing that he was the owner of the premises at the time the liens were filed, and the point is disaffirmed." Exception. (Second assignment of error.)

The claim filed is not evidence at all and should not be so received.

Hills v. Elliott, 16 S. & R. 57.

This contract was made without any authority from the legal owner; and there was no lien except against the party at whose instance the materials were furnished. Having failed to name him as owner was a fatal defect.

Johnson's Mech. Liens, 126, 139.

Houston, Smith and Co.'s Appeal, 6 WEEKLY
NOTES, 162.

Barclay's Appeal, 11 Id. 359.
Steinman v. Miller, 12 Id. 244.
Dietrich v. Crabtree, 8 Id. 418.

Gault v. Deming, 3 Phila., 337; S. C., affirmed,
Luz. L. Obs. 322.

Campbell v. Pharo's Appeal, 12 Casey, 247.
Weaver v. Lutz, 14 WEEKLY NOTES, 251.
The cases cited by the defendant in error only
decide that when one has bought the very title on
which the lien existed he may be named as owner
instead of his vendor.

William M. Hayes, for defendant in error. The bills filed with the claim were only offered in evidence as an index and duplicate of the book account. The case of Hills v. Elliott, cited by

the jury that the lien was properly filed against John Weaver, "the testimony showing that he was the owner of the premises at the time the liens were filed, and therefore the point is disaffirmed." This overlooked the question raised by the point. The evidence showed that the land on which these buildings were erected was owned at the time the materials were furnished by Knauer and Keim. Neall had made a verbal contract for the purchase of it some little time before, and paid ten dollars upon it. The materials were bought and the buildings erected by him in connection with the opening of a quarry thereon. Weaver purchased the title of Knauer and Keim after the materials were furnished, but before the lien was filed, and his present contention is that the lien should have been filed against the equitable title under which the materials were contracted for, and not against the legal title. The point was well taken,

As the case stood there was no evidence to show that Weaver held Neal's equitable title, and it is very plain that his legal title cannot be bound by this lien.

The lien commences when the materials are furnished, and attaches to an equitable interest in the premises. (Keller v. Denmead & Son, 68 Pa. 449.)

If the materials are furnished at the instance of a tenant in common in possession, it has been held that a lien may be entered against him, and that it will bind his interest in the premises.

In Woodward v. Wilson (68 Pa. 208) it was held that where materials were furnished on the order of the husband, and a lien entered against him, the wife's estate in the land-she claiming to be the real owner-was not affected thereby.

The statutes have now provided for the entry of a lien against structures erected by a tenant

for years, but the lien binds only the tenant's title.

In such case, the fact that the trustee did not report to the company the transfer of the stock in payment of

Where stockholders have knowledge of such a transfer, which also appears upon the books of the company, and neglect or refuse to make further inquiries, they

are affected with notice.

Appeal from the decree of the Common Pleas No. 4, of Philadelphia County, dismissing exceptions to Master's report.

Bill in equity filed by C. S. Patterson, Richard Penistan, and Henry R. Heyl, in behalf of themselves and of such other contributors to a certain trust fund of stock as might thereafter become parties, against Charles Lénnig.

The mechanic must inquire not only after the his debt is of no importance. title of the person on whose order he furnishes material, but after the incumbrances on that title at the time when the work begins, for his lien attaches only at and from the commencement of the building. The holder of a prior incumbrance is not affected. If the builder is the owner only of an equitable title, the holder of the legal title is not affected. The object of the defendant's point was to get the attention of the Court upon this subject and secure a proper instruction to the jury. The Court, without sufficiently considering the question thus raised, told the jury that the lien was properly entered against the person who was the owner at the time when the lien was filed. This is entirely correct if only it be added that such owner holds the title of the person or persons under whom the building was erected, but without such qualification it was clearly wrong. It may be that Weaver holds the title of Neal, but if so it was not shown on the part of the plaintiff, while defendant did show that he held the title of Knauer and Keim; and upon this showing he was in a position to ask the instruc-surplus after payment of debts to be returned to tion contained in his point.

It set forth that in the year 1875 the plaintiffs, with a number of others, were stockholders in the American Paper-Box Machine Company; that the company was insolvent, and in order to save it the plaintiffs and others entered into an agreement to contribute two-fifths each of their stock, so as to raise a fund of one thousand shares, which was to be placed in the hands of a trustee, to be used to pay the company's debts, and the

the contributors. Charles Lennig, who was also a stockholder of the said company and its president, was made the trustee to hold the stock, and with it pay the debts of the company. The plaintiffs contributed their proportion of stock, and the defendant received it, and, entering upon the performance of the trust, paid debts, collected dividends, but never rendered any account to the plaintiffs of his trusteeship; that, however, some time after June, 1879, he had transferred all the stock registered in his name as trustee to his individual name, without the consent or knowledge of plaintiffs. The prayer was for an account; for a surrender of the trust stock by the trustee to the plaintiffs on such terms as might seem just and equitable to the Court; and general relief.

The answer admitted that the defendant had received the stock contributed by plaintiffs under the agreement substantially as alleged in the bill, but denied that the defendant was a trustee ex

Trustee to pay debts-Stock contributed to pay cept to pay the debts of the company. An acdebts transferred by trustee to himself in pay-count was also set forth, showing what had been ment of his claim-When such transfer sus-done with the stock, which showed that most of tainable-Laches-Notice.

A trustee will not be allowed, unless by leave of the Court first had, to purchase the trust property at his own sale, nor in any manner to make a profit out of the same. As a general rule, a trustee who purchases

at his own sale does so in violation of his trust.

A trustee to whom was transferred certain stock of a company for the payment of creditors, who applied the stock in question in good faith and at a fair price to the payment of the creditors of the company, including himself, acts in the direct execution of the trust, and there is no room for the allegation of a breach thereof.

the stock had been paid over by the trustee to himself. The answer denied that no account had been rendered when requested, and sought to justify the taking of the trust stock in 1879 by showing that it was bought at a fair price, and that plaintiffs knew of it at the time.

The replication was in the common form.

The Master (Matthew Dittmann, Esq.) appointed in the case, found in favor of the plaintiff's, and submitted a decree compelling defendant to account. Exceptions filed to his report were sus

tained by the Court. (See Patterson et al. v. | cepted sixty-three shares in discharge of the inLennig, 20 WEEKLY NOTES, 141.) debtedness of the company to him, being at the

The facts in the case, as set forth in the opin-rate of thirty-three dollars per share. Mr. Pation filed by THAYER, P. J., were as follows:

"In January, 1875, the American Paper-Box Company was insolvent. To rescue the company from its embarrassments a meeting of the stockholders was held, at which it was agreed that each stockholder should surrender one-half of his stock for the following purposes, viz., fifteen hundred shares so contributed are to be placed in the company's hands, to be resold, to provide working capital for future business, and one thousand shares to be placed in the hands of a trustee, to be used for the liquidation of the company's present indebtedness, any surplus of these one thousand shares remaining after the said debts are removed shall be returned pro rata to the persons contributing the same.' This meeting was held January 16, 1875.

"The object which the stockholders had in view was to raise money to carry on the company's operations by the sale of the fifteen hundred shares. It was not supposed that this could be accomplished unless they were able to announce that the company was out of debt. To pay the debts they therefore agreed to appropriate the additional one thousand shares. The defendant, Mr. Lennig, who was the president of the company and the largest creditor, was appointed the trustee to pay the debts with the one thousand shares surrendered for that purpose. There were but four creditors, and they were all stockholders, viz., Mr. Lennig, to whom they owed $19,000; Mr. Heyl, to whom they owed $4600; Mr. | Simpson, to whom they owed $2085; and Mr. Patterson, who had a disputed claim against the company for $7550.

terson undertook to pay himself by retaining,
against the trustee's wishes, one hundred and
fifty-one shares out of the two hundred and sixty-
four which he had bound himself to contribute.
"The only creditor remaining unpaid was Mr.
Lennig, the trustee. The stock had no market-
able value at the time it was deposited in his
hands for the payment of the debts. It could
not be sold at any price. Two years later it was
sold for two dollars and seventy-five cents a
share, par being fifty dollars. Four years later,
viz., in April, 1879, it was sold for seven dollars
per share. On November 10, 1879, Patterson,
the complainant, sold one hundred and eighty-
eight shares at fifteen dollars and ninety-six cents
per share. As late as 1881 Patterson sold four
hundred and thirty-two shares at twenty-five
dollars per share. Between 1875 and 1881 the
price ranged from two dollars and seventy-five
cents to twenty-five dollars a share. Mr. Lennig
held the stock for more than four years without
paying with it the debt which was justly due to
himself. During that period it was repeatedly
offered to the directors by Mr. Lennig at from
thirty to thirty-three dollars per share but could
find no takers. He frequently offered it to other
persons but could find no buyers.

"On the 29th of October, 1879, all the other' creditors having been long since paid, Mr. Lennig, to close the matter up, transferred the residue of the stock, five hundred and seventy-four shares, to himself in payment of his debt, which then amounted, with the accumulated interest, to $24,539.11, which was at the rate of forty-two dollars and seventy-one cents per share. He had "Of the one thousand shares agreed to be paid the other creditors with stock by virtue of contributed to pay off the debts, in point of fact the authority which he had to do so, and he now only seven hundred and eighty-three shares were paid himself in the same manner. The Master contributed and passed into the hands of Mr. says, for some reason known to himself he Lennig. Of these he contributed one hundred preferred to leave his own debt unpaid and keep and seventy-seven himself. Four days after this, in his hands as trustee the five hundred and sevviz., January 20, 1875, the company offered for enty-four shares out of which he was entitled to sale twelve hundred and fifty of the fifteen hun- pay it.' The reason why Mr. Lennig waited so dred shares contributed for that purpose, at forty | long before paying his own debt with the stock dollars a share, announcing that the stockholders which he held for that purpose is quite apparent guaranteed that the said company is free from from the evidence. He waited to see if within a debts of every kind.' They perfectly well un- reasonable period, by the success of the company, derstood that they could not get new subscribers the stock might not attain a higher value and beto come into the company until it was relieved come worth more than the amount of his debt, his of its debts. The stock placed in Mr. Lennig's declared intention being in that event to return hands to be used for the liquidation of the com- any surplus which might remain to the contribupany's indebtedness' appears to have been ap- tors. It was to carry out in good faith this purplied by him to that purpose in pursuance of the pose that Mr. Lennig continued to hold the stock expressed object for which he received it. Mr. as trustee, hoping that the business of the comHey, of his own motion, agreed to cancel the pany would so improve as to cause a rise in the debt due to himself in consideration of the re-stock, which, when he received it, had no marceipt of one hundred shares. Mr. Simpson ac-ketable value whatever.