Ingersoll's Appeal, 86 Id. 241. A condition or conditional limitation restricting an owner from alienation is bad and not enforceable at law or in equity. Naglee's Appeal, 33 Pa. St. 89. 2 Jarman on Wills, pp. 15 and 19. The law of Pennsylvania leans powerfully in favor of remainders being held vested. wherever they can possibly be so construed. Chess's Appeal, 87 Pa. St. 362. Provenchere's Appeal, 67 Id. 468. Peterson's Appeal, 88 Id. 397. said son the intestate law of Pennsylvania, if my had died, seised in fee simple of such estate, without any wife surviving him." Charles Pepper left surviving him one child, Charles Rockland Pepper, and no other issue. His said son was born after the death of George Pepper. He is now about forty years of and age, has never been married. It is very clear that under the will of George Pepper his son Charles took an estate for life, with remainder in fee to his son, Charles Rockland Pepper. This estate is indefeasible unless it has been abridged by the donee of the power in the valid execution thereof. It is well to bear in mind that whatever Charles Rockland Pepper takes, he takes it under the will of his grandfather. The donee of the power, Charles Pepper, had no estate to give him. Nor can he take anything from him. The estate was limited by the will of George Pepper to a class to The opinion of ASHMAN, J., in this case, is which Charles Rockland Pepper belongs, and he particularly relied on. April 30, 1888. THE COURT. This is a close case and not free from difficulty. It was heard in the Court below upon exceptions to the rulings of the Auditing Judge. The Court was divided and the exceptions fell. Two opinions have come up with the record, one of them sustaining the adjudication, the other sustaining the exceptions. They are both able and carefully prepared opinions. It is a pleasure to consider cases where the Court below has done so much to aid us in our deliberations. The single question presented by the record is whether there has been a valid execution of the power of appointment under the will of George Pepper. The testator devised the share of his son Charles to trustees in trust for his use for life. "And from and after his death, then to the use of such of his children and issue, and in such shares and for such estates as he shall by last will appoint, and in default of such appointment, then to the use of all his children that may be living at his death, and the issue of any deceased child or children, their heirs, executors, or administrators, as tenants in common, in equal shares; the issue of any deceased child to stand in the place of their parent, and to take only the share their parent would have taken if living; and in default of such issue, then as to the one equal fourth part of the share appertaining to my son, to the use of such person or persons, and for such estates and in such proportions as he shall in any way appoint; and as to the remaining three-fourths parts, and also as to the said one-fourth part, so far as the same shall not have been appointed otherwise by my said son, to the use of my then surviving children, and the issue of any of my children, then deceased, in the shares and proportions, and for the estates which they would have taken under is moreover the only member of that class. Had there been other children, brothers and sisters of Charles Rockland Pepper, the donee of the power could have appointed the estate amongst them in such shares as he might have seen proper. He might, perhaps, have excluded this one child from all participation in his grandfather's estate. As the case stands the donee of the power can neither exclude him nor diminish his interest or estate, because, as was before observed, the estate was given by George Pepper to a class of which Charles Rockland Pepper is the only representative or member. Charles Pepper cannot give it to any one else because it is not his to give; he is the mere donee of a power; that power has its source in the will of George Pepper; it is a special limited power, and it can only carry the estate to such persons as George Pepper directed it to go. The object of conferring this power was to enable Charles Pepper to distribute the estate to and among a certain class, or to such members of the class as he might think best for their interests. With but one member of the class in existence there can be but one distribution, and under such circumstances it is difficult to see the utility of any appointment whatever. Charles Pepper, however, attempted to exercise the power of appointment given by the will of George Pepper. That the paper was carefully drawn is shown by the skill with which a perpetuity is avoided while approaching dangerously near the border. The material part of the execution of the power by Charles Pepper is in the following words : "Until the expiration of twenty-one years after the death of the survivor of my brothers, George S., Edward, Lawrence S., and Frederick Pepper; of my sister, Mrs. Catharine Gardette, and of myself, all of whom were living at the death of my said father, I devise, bequeath, and [ he used the words "for such estates." They appoint my said share in my father's estate to have no meaning as applied to Charles Rockland my said son, Charles Rockland Pepper, upon the Pepper as the only member of his class unless express condition, that he shall not in any man- we hold that they were intended to authorize the ner convey, assign, or transfer the same or the donee of the power to cut down the estate which rents, issues, and profits thereof to any person he took under his grandfather's will, from an whomsoever, or do or suffer any act, matter, or estate in fee to an estate upon condition and thing whereby the same shall be attached, seized, forfeitable for alienation. This we are not preor taken in execution or be made subject to or be pared to do. affected by the Insolvent or Bankrupt Laws of the United States, or of any other State thereof, or of any foreign country; and in case any of these events shall happen contrary to the true intent and meaning of the foregoing condition within the said term of twenty-one years after the death of the survivor of my said brothers, sister, and myself; and also, in case of my said son shall die before the expiration of the said term of twenty-one years leaving issue, then, and in any such case, I devise, bequeath, and appoint my said share in my father's estate to such issue, their heirs, executors, and administrators, and if more than one, in such shares and proportions as if my said son had died seised and possessed thereof intestate." A careful reading of the will of George Pepper leaves us in no doubt as to the testator's meaning. The share of his son Charles was to go to the line of inheritance. In default of appointment by the latter, the share is limited to the class who would take by descent from Charles, and we are of opinion that that class was to be determined upon the death of Charles. When George Pepper died Charles had no children. He could not possibly know how many children Charles would leave. He therefore gave his share "to the use of such of his (Charles's) children and issue" as he shall by last will appoint, and upon failure to appoint, "then to the use of all his (Charles's) children that may be living at his (Charles's) death." We think it is plain that the testator intended the share of Charles to go to such of the children of Charles as might be living at the death of the latter, and to the issue of any deceased child. This was the class who were to take, and the power was given merely to enable Charles to make distinctions between the different numbers of the class, in case some should prove more worthy or more needy than others, or possibly to exclude some of the power in giving to Charles Rockland Pepper a forfeitable estate, with remainder to another class not contemplated by the testator, which was not then, is not now, and may never come into existence. It is not easy to describe the estate which the donee of this power has given to the appointee. It is perhaps a conditional fee, subject to forfeiture for breach of the condition against alienation. The thought naturally suggests itself, where did Charles Pepper get the power to annex a forfeiture to the estate he was attempting to appoint? It was not inherent in him by virtue of his dominion over the estate, for as before observed, it was not his estate. It was urged, how-altogether. We see nothing to justify the donee ever, that it created a spendthrift trust and as such may be sustained under the authorities in this State. But the appointment contains no trust of any kind, and to sustain this assumption we would have to write a spendthrift trust into the will of George Pepper. This cannot be done either by the donee of the power, or by this Court. We look in vain through the will of George Pepper for one word which authorizes the donee of the power to appoint a forfeitable estate to Charles Rockland Pepper, or create a spendthrift trust. It is true it authorizes the donee to appoint the share referred to "in such shares and for such estates" as he shall deem proper. But the testator, when he used this language was contemplating the distribution of the share among a class consisting of several persons, certainly of more than one. And had there been several of the class the donee of the power could have appointed an estate for years to one, an estate for life to another, with remainders to a third in fee; or he could have made any other division which would have given the whole share to some one or more of the class. This is what the testator evidently meant when We think the foregoing views are fully sustained by Wickersham v. Savage (58 Pa. 365); Horwitz v. Norris (49 Id. 213); Fidelity Company's Appeal (4 WEEKLY NOTES, 266). The decree is affirmed, and the appeal dis- Jan. '88, 292. C. K. Z. March 30, 1888. Biddle et al. v. Hooven. Statutes of Limitation—Ground-rents-Act of that in all cases where no payment, claim, or demand The Act of April 27, 1855, § 7 (P. L. 369), providing shall have been made on account of a ground-rent for twenty-one years, and no declaration or acknowledg ment of the existence thereof shall have been made | trenching upon the legislative province but upon within that period by the owner of the premises sub-the constitutional right of the plaintiff by depriving ject to the ground-rent, a release or extinguishment him of his estate without having given him any thereof shall be presumed, and the ground-rent shall thereafter be irrecoverable, affects the remedy merely, warning of his danger so as to enable him to guard and is not unconstitutional and void on the ground against it. that it impairs the obligation of the contract between the ground-tenaut and the ground-landlord. The question is as to the title or right of the plaintiff to the rent as his freehold estate and not his right to receive and enforce the payment of Error to the Common Pleas No. 2, of Phila- back rents which are the fruits of it, because the delphia County. Covenant sur ground-rent deed, by Thomas A. Biddle and Alexander Biddle, trustees, against James Hooven. John Kilpatrick was permitted to intervene as terre-tenant, and filed a plea setting forth that no payment, claim, or demand had been made on account of or for the said yearly ground-rent for twenty-one years prior to the commencement of said suit, and no declaration or acknowledgment of the existence thereof had been made within that period by the owner of the premises subject to said ground-rent. rent after it has become payable, is a debt or mere chose in action which from the lapse of time a jury may presume has been paid in the absence of everything tending to show the contrary. The Statute of Limitations, does not begin to run in favor of one who had held in subservience to the title of another until the privity between them is severed by some unequivocal act. The Supreme Court of the United States has decided that Congress cannot pass laws changing the kind of money contracted for in ground-rent deeds, though STRONG, J., in Shoellenberger v. To this plea the plaintiffs demurred. The Brinton (2 Smith, 9), declared that the United Court after argument overruled the demurrer and States were not prohibited from passing any law imentered judgment for defendant. Plaintiffs there-pairing the obligation of contracts while this was upon took this writ, assigning for error the action of the Court as above. Richard M. Cadwalader, for the plaintiffs in error. denied to the States. This was on the ground that the parties had made the law for themselves, and that it was not for the public benefit to impair the obligation of such contracts. It is true that The defendant by his purchase of the land sub-contracts are made subject to the power of emiject to the ground-rent, has taken upon himself nent domain, but no State, no government can to perform the contract of the original covenan-abrogate them to help any individual to avoid tor, holding out that he enjoys the land in con- duties he has deliberately imposed upon himself sideration of payment to his landlord as expressed by his covenants in the deed. in Ingersoll v. Sergeant (1 Wharton, 337). In Hepburn v. Griswold (8 Wallace, 603) all agreed that the Legal Tender Acts did impair the obligation of contracts. If there had been a release it was incumbent He binds himself not only to pay the rent but with a further express covenant as to the method of extinguishment. This contract the Court described in Ingersoll v. Sergeant as one of land-upon the grantee of the land to place it on relord and tenant yielding rent service and which, therefore, ought to be governed by the rules regulating rent service which in the absence of the Statute Quia Emptores import a tenure with fealty to pay the rent forever. The deed of the parties executed in counterpart may be considered as a confirmation from the tenant to the landlord of the rent in question, and apart from any question of tenure the tenant is bound to perform his express covenant under all circumstances and can always protect himself, because it is his duty to pay or cause to be paid the rent reserved by the grantor in the original deed. The plaintiffs make no new argument, but as a matter of public policy contend that this inheritable estate shall be placed upon the same foundation as other estates, and that their contract shall be interpreted by the settled law of the land. As stated in St. Mary's Church v. Miles (1 Wharton, page 229), Courts have no authority to interpose limitations. The exercise of such power would not only seem to be en cord and perpetuate the evidence. The Act of April 27, 1855, insists, on the contrary, that the grantor of the land should perpetuate the testimony, even should the tenant have gone on and regularly paid as the rents became due. Under such a rule the owner of the rent is entirely at the mercy of the tenant, and is in constant dread of forfeiture, unless the tenant is honest enough to produce the evidence which it is for his advantage to conceal, and succeeds only by denying that he has done that which by his most solemn act he has bound himself to do. This Act makes that lawful which was unlawful and deprives the owner of the ground-rent of any defence. There are certain principles of law qualifying all that falls from the lips of a Judge in expounding the cominon law and all that is found in the statute book; among them, that where there is an express contract, a man is answerable for any injury or mischief to another, even by the act of God. If the rights of the individual must yield to the general welfare his property can only be taken under the special provisions that no man's prop- [ impairs the obligations of the contract between erty shall be taken or applied to public use with- the ground-tenant and the ground-landlord, and out just compensation made. Rights vested by hence is unconstitutional and void. This is all contracts are expressly guarded and protected by there is in the case. the Constitution. The Court in Palairet's Appeal (17 Smith, 485) said decidedly that an Act of Assembly taking the property of one individual and giving it to another is in no sense constitutional, and therefore the Act of April 15, 1869, providing for the extinguishment of irredeemable ground-rents, even with compensation, was unconstitutional and violated the Bill of Rights. The defendants refer us to Korn v. Browne (64 Pa. 55), as decisive upon this point. We cannot give that case the full effect claimed for it. An examination of it shows that the only question there argued was, whether the section of the Act referred to has a retrospective as well as a prospective operation with regard to ground-rents. This appears in the first sentence of the opinion of Justice READ. He very properly held that as the seventh section did not go into effect for three William Kelley, for defendant in error. The Act of April 27, 1855, does not impair the obligation of the contract, and is not unconstitu-years, and gave ample time to all owners of tional. Smith v. Morrison, 22 Pickering, 430. Sturgis v. Crowninshield, 4 Wheaton, 206. ground-rents to make claims and demands for the same, so as to prevent the bar of the statute, that this prospective commencement made the retrospective bar not only reasonable but constitutional. In other words the Act gave ample time to preserve all existing rights. I shall not attempt to show that Statutes of Limitation which affect the remedy merely are constitutional. There are some few legal principles which may be regarded as settled, and this is one of them. If, therefore, the Act of 1855 April 30, 1888. THE COUrt. This record merely operates to deprive the owner of a remedy raises the question of the constitutionality of the for the collection of his ground-rent after the seventh section of the Act of 27th April, 1855 expiration of twenty-one years from any suit, (P. L. 369). The said section is as follows:- claim, or demand for the same, we cannot see any "That in all cases where no payment, claim, sufficient reason for holding that the Act is unor demand shall have been made on account of, constitutional. The plaintiffs, however, contend or for any ground-rent, annuity, or other charge that the Act goes further, and not only takes upon real estate, for twenty-one years, or no dec- away their remedy, but destroys their estate, and laration or acknowledgment of the existence refer us to that portion of the seventh section thereof shall have been made within that period which declares that " a release or extinguishment by the owner of the premises, subject to such thereof shall be presumed (after twenty-one years ground-rent, annuity, or charge, a release or without demand, etc.), and such ground-rent, extinguishment thereof shall be presumed, and annuity, or charge shall thereafter be irrecoversuch ground-rent, annuity, or charge, shall there- able."" The most that can be made of this after be irrecoverable: Provided, that the evi-language is that it makes the ground-rent irredence of such payment may be perpetuated by coverable after the statutory period. After the recording in the recorder of deeds' office of the lapse of twenty years mortgages, bonds, judgproper county, the duplicate of any receipt, ments, arrears of ground-rents, in fact all speproved by oath or affirmation, to be a true copy cialties, are presumed to be paid. But this is a of that signed and delivered in the presence of presumption of fact and liable to be rebutted; the payer, and witnessed at the time by the not a legal presumption, as was erroneously stated deponent, which recorded duplicate or the ex-in Korn v. Browne, supra. The Act of 1855, emplification of the record thereof, shall be evi- in its application to ground-rents, made this predence until disproved; and the evidence of any sumption a legal presumption after twenty-one such claim or demand may be perpetuated by the years, which cannot be rebutted. The only record of any judgment recovered for such rent, ground upon which this kind of legislation can annuity, or charge, in any Court of record, or be justified is that after the lapse of the statutory the transcript therein filed of any recovery thereof period, the mortgage or other security is presumed by judgment before any alderman or justice of the peace, which records and judgment shall be duly indexed: Provided, that this section shall not go into effect until after three years from the passage of this Act." to have been paid, or the ground-rent extinguished. The payment of a mortgage and the extinguishment of a ground-rent mean substantially the same thing. The Act was not intended to destroy the ground-landlord's ownership in the The contention of the plaintiffs is, that the Act | rent; it does not impair his title thereto; nor can it be said to impair the contract by which I told him what Mr. Clarkson had instructed him the rent was reserved, but from well grounded to do. Mr. White telegraphed to New Haven reasons of public policy it declares that when the for information, and, upon receiving a reply, gave owner of such rent makes no claim or demand to Mr. Graves the numbers of certain car loads therefor for twenty-one years, it presumes it has of lumber, with the situation thereof; whereupon been extinguished, which means nothing more the plaintiffs issued the attachment. No appearthan that it has been paid. The language cited, ance of record was entered for the defendants or as before observed, affects only the remedy; if it any of them; but subsequently the defendants meant more, it would be void for the excess. took a rule to quash the writ of attachment on Judgment affirmed. the ground that one of the defendants was in Philadelphia County at the time the attachment Opinion by PAXSON, J. TRUNKEY, STERRETT, and GREEN, JJ., ab- issued. Affidavits were filed in support of the sent. Jan. '88, 306, 307. L. L., Jr. Holland et al. v. White et al. rule, and depositions taken. The plaintiffs claimed that the defendants were estopped by their own acts and words from taking this rule, and that they waived any statutory rights they might have by March 30, 1888. directing the plaintiffs to issue the attachment in order to give the plaintiffs a legal preference under the laws of Pennsylvania. Upon hearing, the Court made the rule to quash the attachment Foreign attachment-Rule to quash-Discretion absolute. Whereupon the plaintiffs_took_these of lower Court-Writ of error-Certiorari-writs, assigning for error the action of the Court. Depositions in support of rule-Not part of the record. Holland's Appeal. A motion to quash a writ, like one to set aside the service, or to amend a return to a summons to set aside a verdict, and the like, is addressed to the discretion of the Court, and the exercise of that discretion is not reviewable on a writ of error or by certiorari. The affidavits or depositions on which the order is made are no part of the record, and cannot be considered by the Supreme Court on certiorari or writ of error. Writs of error and certiorari to the Common Pleas No. 3, of Philadelphia County. Foreign attachment, by Holland, Graves & Montgomery, against White, Clarkson & Co., defendants, and the Pennsylvania R. R. Co., Watson & Gillingham, and John Morrison, gar nishees. The facts of this case were as follows: The defendants, who resided in and did business in New Haven, Conn., but had an office in Philadelphia, became financially embarrassed. Among their creditors was the plaintiff firm, to whom they owed some $4000 for lumber sold and delivered. According to the allegation of the plaintiffs, Mr. Graves, of plaintiff firm, went to New Haven to see the defendants, and to endeavor to obtain a preference from them. He saw Mr. Clarkson, one of the defendants, who told him that, under the laws of Connecticut any preference or attachment, if made within sixty days before an assignment, would be set aside; but that the defendants had a quantity of lumber in Philadelphia which plaintiffs might attach, and that he would telegraph to Philadelphia to have the lumber pointed out to him. Mr. Graves came to Philadelphia, and saw Mr. White, another of the defendants, and Lewin W. Barringer, for plaintiffs in error. The defendants were estopped from taking the rule to quash by their actions and instructions to the plaintiffs. Bigelow on Estoppel, 4th ed. p. 642. So long as he has not entered an appearance a defendant has no standing in Court to move to quash a writ of foreign attachment. Brock v. Brock, 18 WEEKLY NOTES, 123. A rule to "quash" is identical with a rule to "strike off," and is not a matter of discretion. O'Hara v. Bumm, 1 Norris, 416. Mitchell on Motions and Rules, pp. 74-79. and can only be granted by the Court where Steel v. Godwin, 113 Pa. St. 288. This action of the Court in quashing the writ of attachment must either be subject to error or it can be reviewed by certiorari, otherwise a plaintiff would be without remedy. to Art. V., sec. 3, Const. of Pa. Wetherald v. Shupe, 16 WEEKLY NOTES, 502. Henry K. Fox, for defendants in error. quash a writ of foreign attachment, cannot be The reasons which prompted the lower Court reviewed either on error or upon certiorari. Moyer v. R. R. Co., 3 W. & S. 91. Gidding's Appeal, 32 Smith, 72. Brown v. Ridgway, 10 Barr, 47. |