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1. That the defendant was not in the execution you and not for us." We would have to regard thereof a free and voluntary agent. 2. That that jury as extremely stupid that did not unthe contract was illegal. In support of the first derstand that the judge was here talking about of these reasons, he says, among other things, the weight of evidence, and what would or that the power of properly considering whether would not be sufficient to overcome the prima he ought or ought not thus to bind himself; facies of the paper itself, and the whole answer, whether it is prudent so to do or not, is alto- when taken together, makes this sufficiently gether taken away from a father who is brought plain. Previously, in answer to the plaintiff's into the situation of either refusing and leaving first point, the court had carefully instructed the his son in a perilous situation, or of taking upon jury as to the legal force of this paper; that the himself the amount of the obligation.
| burden of proof was thrown upon the defendant, How aptly these authorities bear on the case and that, in the outstart, every presumption in hand I need not say, for any one who reads was against her. To this answer much force is the evidence, will at once see that Mrs. Elliott given by that to the plaintiff's second point, was so thoroughly overcome by fear, produced where the court says: “This point we affirm. by the conduct of the plaintiff, that in the exe- Where a written instrument is sought to be set cution of the note in suit, she was anything but aside for fraud or imposition, the proof which a free and voluntary agent. Her sole object was will justify a jury in setting it aside, must be to free herself, on any terms, from the presence clear and satisfactory, and it must be precise of her impudent persecutor, and to rescue her and indubitable.” With instructions so careful son from prosecution. Had this man insidi- as these, the jury could not have been misled by ously gained the confidence of this old lady, the language complained of, which, at best, is and by his lies induced the signing of this obli only ambiguous. gation, as in Hunt v. Moore, 2 Barr, 105, it! We discover nothing in the remaining excepwould, without doubt or hesitation, have been | tions which has not been covered by what has regarded as fraudulent and void, but how much been already said. less fraudulent is that conduct, which produces
The judgment is affirmed. the same result through fear? It may, indeed, be the fear of a weak mind, but I cannot see FREDERICK et al. v, CORCORAN et al. how that helps the matter; to the generous mind it is rather an aggravation. It is the | Where the holder of an equitable title to land under weak that is the most easily imposed upon;
articles of agreement borrows a sum of money from a
third party, a portion of which is applied on account hence, the weak, in an especial manner, need
of the purchase money, and thereupon the holder of our protection.
the legal title to the land executes to the lender of the In this, the main branch of this case, we dis money a deed therefor, which deed is not recorded, it cover no error in the rulings of the court below.
being understood with the borrower that the properly
is thus conveyed simply as security for the loan, the The 3d exception complains of the allowance of
transaction will be held to constitue a parol mortgage the question to, and the answer of, the defendant from the borrower to the lender, which will be ineffectas to what she had heard of the plaintiff's repu ual as against the title acquired by a vendee of the land tation for violence. This was altogether proper,
at a sheriff's sale under a subsequent judgment re
covered against the borrower. not indeed, as proof of character, for that was
Where in such case the amount of the loan has been left not in question; but as a circumstance affecting by the borrower with the lender, and subsequently, at the defendant; as showing her conviction that his request, the purchase money for the land is paid she was dealing with a dangerous man, whose
directly from said amount to the vendor, the vendee at
sheriff's sale aforesaid will not, on account of that cirwill it would not be safe to resist. Again, in
cumstance, be compelled to tender the amount so paid the 4th specification, complaint is made that the out to the lender before he is entitled to recover possescourt submitted the note to the jury for construc sion, Said amount so paid was the money of the lender, tion, or rather, perhaps, as to the effect which it
not of the borrower. would have as evidence. But it did nothing of Error to the Court of Common Pleas of Clinton the kind. The language of the learned judge, county. which in this assignment is especially empha-| Ejectment by James Corcoran and B. L. Richsized, is this: “It is for you to say what is suf-ards against Joseph R. Frederick and the Lewisficient to set aside a paper of this kind. We do burg Building Association, for a tract of land not determine this question for you. It is not in Wayne township, Clinton county. for us to say what would be sufficient to set it ! On the trial, before MAYER, P. J., the followaside. There might be circumstances which ing facts appeared: On July 14, 1869, Thomas would justify the setting it aside, and the ques- Karstetter, being seized of the tract in controtion of the evidence and the effect of it are for versy, sold the same by articles of agreement to
defendant Frederick for $800, $200 of which corded mortgage, and cannot prevail against a were paid at the time of sale; $300 to be paid on title acquired under a judgment of later date. September 1, 1870, and $300 on September 1, The effect of not placing upon record the nature 1871.
| and character of the transaction is to mislead Plaintiffs subsequently, on October 18, 1876, and deceive the creditor, by creating the impresrecovered a judgment against defendant Freder- sion that the debtor has parted with his entire ick. Upon this judgment execution was issued interest in the land, when in fact he has not. against the tract in controversy, and the same This the law will not permit, although as bebeing sold at sheriff's sale, was purchased by tween the parties no fraud was intended, yet the plaintiffs. This constituted the plaintiffs' title. law considers it a fraud upon creditors.
Defendants then showed that on May 16, 1870, “[We therefore say to the jury that if they defendant Frederick had borrowed from the as- | believe, from the evidence in the case, that the sociation defendant the sum of $2,000, and that assignment of the agreement by Frederick, and he had assigned his interest in the articles of the deed made subsequently by Karstetter to the agreement with Karstetter as part security for Lewisburg Building Association, were made said loan. That on November 15, 1870, at Fred with the understanding and agreement at the erick's request, said association had paid to Kar- time of the assignment and conveyance, that stetter $100, on December 28, 1870, $300, and on the real estate was to be taken and held as colApril 11, 1871, $300, which sums were charged lateral security for the loan made by the associato Frederick on the books as having been paid tion to Frederick, and to be reconveyed to Fredout on account of the loan of $2,000 made to him; | erick when said loan was repaid, then the and further, that on said last-named date, Kar- plaintiffs are entitled to recover in this action, stetter having received the full amount of the and your verdict should be for the plaintiffs.] consideration stipulated in the articles of agree- If, however, you find from the evidence, that ment, executed to the association a deed for the the deed from Karstetter to the Lewisburg tract in controversy, which was never recorded, Building Association was an absolute deed, that it being understood and agreed at the time with it was intended as a purchase from Karstetter, Frederick that the real estate was to be assigned and that it was not taken as collateral security and conveyed to the association simply as col- for a loan made to Frederick, then your verdict lateral security for the $2,000 loan made to him, I should be for the defendants." and that on repayment of said loan the associa- Verdict for the plaintiffs and judgment theretion would convey said property to him. After- on. Whereupon defendants took this writ, aswards the remaining portions of said loan were signing for error, inter alia, the refusal to affirm duly paid to Frederick. No part thereof was defendants' point above given, and that portion ever repaid by him to the association.
of the charge of the court cited in brackets. Defendants presented, inter alia, the following For plaintiff's in error, Messrs. Linn & Cross. point: “The Lewisburg Building Association Contra, Messrs. C. S. McCormick and W. C. stands in the position of vendor, and the loans | Kress. having been made upon the contract that they should all be repaid before a conveyance, the Opinion by GORDON, J. Filed May 22, 1882. plaintiff cannot recover without baving shown This was an action of ejectment brought by them paid." Refused.
Corcoran and Richards, the plaintiffs below, The court charged, inter alia, as follows: against Joseph R. Frederick and the Lewisburg " Plaintiffs contend that their title, acquired Building Association, for the recovery of the under and by virtue of the sheriff's sale, must possession of a certain property, in the writ deprevail against that of the building association, scribed, situated in the township of Wayne, for the reason that in law the deed made to said county of Clinton. The common grantor, unassociation by Karstetter was but a mortgage, der whom both parties claim title, was Joel and not having been recorded, and they not Karstetter, who, it seems, by articles of agreehaving had either actual or constructive notice ment, dated July 14, 1869, bound himself to of the character of the title held by said associa- | convey to Frederick the land in controversy on tion, it must be postponed to the title acquired payment by him of eight hundred dollars. The under the judgment of Corcoran & Richards. plaintiff's' claim is founded upon a sheriff's deed Where a person receives a deed, absolute upon executed to them, in pursuance of a sale of this its face, but which was agreed and intended be- property, regularly made on the 7th of May, tween the parties as a security for a debt, and 1880, upon a judgment of Corcoran, Bubb & Co. the deed when recorded is not accompanied with against Frederick, entered to No. 314 February the defeasance, it is to be considered an unre- | Term, 1874. The building association claimed under a deed made by Karstetter to it, dated proceeds of a loan made by itself to him, did not April 11, 1871. To rebut the force of this defense alter the legal status of the parties; the money the plaintiff's contended that this deed had been was none the less Frederick's than if he had reexecuted to the association but as a trustee for ceived it elsewhere, and put it into the hands of Frederick and that it was held by the company the company for payment to Karstetter. only as a pledge for money loaned by it to him, As what we have said disposes of the princiand that it thus held but a parol mortgage, pal contention of the defense, as apparent in all which was of no force as against a subsequent the assignments of error, we are relieved of the judgment creditor. Undoubtedly, if this be a labor of treating them seriatim. correct statement of the facts of the case, the
Judgment affirmed. judgment now before us was well rendered. In Guthrie v. Kahle, 10 Wr., 331, it was said
District Court, United States. by Mr. Justice THOMPSON, that it had been so often ruled that the conveyance of land for the
Western District of Pennsylvania. purpose merely of securing the repayment of
IN EQUITY. money, was but a mortgage, that it had passed into an elementary principle and no longer re- THE SECOND NATIONAL BANK OF TITUS. quired the citation of authorities to give it force. | VILLE, PENN'A, v. CALDWELL et al. But that the association did so hold the Karstetter deed, is, from the evidence, not a matter of 1. Under the settled construction of Section 3, Article doubt. On payment of the loan Frederick was III, of the Constitution of Pennsylvania, where an Act entitled to a reconveyance. This loan altogether
of Assembly is entitled a supplement to a former named
act, and the subject thereof is germane to that of the amounted to two thousand dollars, and as part
original act, its subject is sufficiently expressed. security, the articles of agreement with Karstet 2. The constitutional provision, -"No law shall be reter were assigned to the lender of this money. vived, amended, or the provisions thereot extended or Part of the sum thus borrowed was used to pay
conferred, by reference to its title only, but so much
thereof as is revived, amended, extended or conferred off the amount due on the articles, and the deed
shall be re-enacted and published at length,''-is suffiwhich took their place, was executed to the asso ciently complied with, if a supplemental and amendaciation. But this deed was held, as was the pre tory act is set forth and published at length in its vious security, subject to the borrower's right of
amended form. redemption. Now, will any one tell me what
3. Under the Pennsylvania Act of June 10,1881, entitled
"A supplement to an act entitled 'An Act to provide material difference it would have made in this revenue by taxation,' approved the seventh day of transaction had Frederick taken the deed in his June, one thousand eight hundred and seventy-nine,''own name, and afterwards, for the same purpose
the real estate of a national bank is subject to taxation of security, transferred it to the building associa
distinct from its other capital.
4. A license tax imposed by city ordiance upon a national tion? Yet, beyond doubt, this would have been
bank, being a tax upon the operations of the bank and but a mortgage; a deed absolute on its face with
a direct obstruction to the exercise of its corporate a parol defeasance.
powers, is unconstitutional; but the ordinance not The important question is, How did the asso
undertaking to make the tax a lien and giving an
action of debt only for its collection, the bank is not ciation hold? As absolute owner ? Certainly
entitled to equitable relies by injunction. not, but merely as a pledgee. Just as soon as Frederick paid, not the purchase money for the Opinion by ACHESON, D. J. Filed Septemland, but the whole amount of the loan, out of ber 26, 1882. which the purchase money was paid, he entitled The plaintiff's claim to exemption from local himself to a return of his pledge. If this is not taxation on its real estate, rests upon the asa mortgage it is hard to tell what would consti- sumption that section 17 of the Act of Assembly tute one.
of June 7, 1879, P. L., 112, entitled “An Act to The learned counsel for the defense has con- provide revenue by taxation," is still in full tended with great earnestness, that, at all events, force. That section enacts that "in case any the association was entitled to a verdict condi- bank or savings institution, incorporated by tioned for the repayment of the money which it this State, or any national bank, elect to collect paid to Karstetter for the legal title. And so, annually from the shareholders thereof a tax of indeed, it would have been entitled had it paid six-tenths of one per centum upon the par value its own money to Karstetter; but it did nothing of all the shares of said bank or savings instiof the kind. It had in its hands two thousand tution, and pay the same into the State treasdollars belonging to Frederick, and out of that ury on or before the twentieth day of June in it paid the purchase money due to his vendor, every year, the shares, capital and profits of and that the money, thus in its hands, was the I such bank, shall be exempt from all other taxation under the laws of this Commonwealth." Act of June 10, 1881, is in conflict with Section And if the plaintiff's hypothesis that this law | 6 of Article III of the Constitution of Pennsylis in operation were correct, there would be vania: “No law shall be revived, amended, good ground for its complaint that its real estate or the provisions thereof extended or conferred, has been illegally assessed with local taxes; for by reference to its title only, but so much thereit was held in County of Lackawanna v. First of as is revived, amended, extended or conferred National Bank of Scranton, 94 Pa. St., 221, that shall be re-enacted and published at Jength." the banking-house of a bank is part of the capi- It cannot, of course, be pretended that there is tal represented by its shares of stock and a tax here any violation of the first part of this secupon the par value of the shares is a tax upon it. tion, for there was no attempt to revive or
But after that decision was made, the Legis- amend the original act, or to extend or confer lature on June 10, 1881, passed an act entitled its provisions, by reference to the title only. “A supplement to an act entitled 'An Act to The objection as stated in the bill of complaint, provide revenue by taxation,' approved the is this, "that said third section materially seventh day of June, one thousand eight hun- amends the provisions of section 17 of the Act dred and seventy-nine," the third section of of June 7, 1879, (to which it is a supplement) which is in these words: “In case any bank and fails to re-enact and publish at length so or savings institution, incorporated by this much of said Act of June 7, 1879, as is thereby State or the United States, shall elect to collect amended." But does the constitutional proviannually from the shareholders thereof a tax of sion in question require that a supplemental six-tenths of one per centum upon the par value and amendatory act must republish the original of all the shares of said bank or savings institu- act or so much thereof as is amended? This I tion, and pay the same into the State treasury understand is what is insisted on. It seems to on or before the first day of March in each year, me, however, that such is not the natural or the shares, and so much of the capital and true construction of the clause. It is to be read profits of such bank as shall not be invested in as a whole, and thus considered, its purpose is real estate, shall be exempt from all other taxa- plain. It was intended to prevent covert legistion under the laws of this Commonwealth." | lation and the passage of laws whose meaning The purpose of this section is not doubtful. and object are not fully disclosed. If there is Obviously the intention is to restrict the ex- no attempt to legislate by reference to the title emption from taxation conferred by the Act of the old law, it is, I think, sufficient if the of June 7, 1879, and to subject the real estate of proposed law in its amended form is “re-enacted banks to distinct taxation. Moreover, section and published at length." Treating of a simisix of the Act of June 10, 1881, expressly repeals lar constitutional provision, Mr. Cooley, in his the 17th section of the Act of June 7, 1879. work on Constitutional Limitations, page 185,
It is, however, contended on behalf of the well says, that the requirement “is fully complaintiff that the third section of the Act of plied with in letter and spirit, if the act or secJune 10, 1881, is inoperative and void, and for tion revised or amended is set forth and pubthis several reasons are assigned.
lished as revised or amended, and that anything 1. The title to the act, it is said, is in conflict more only tends to render the statute unneceswith Section 3 of Article III of the Constitution sarily cumbrous." of Pennsylvania: “No bill, except general ap- 3. Again, it is contended that the third section propriation bills, shall be passed containing of the Act of June 10, 1881, in so far as it would more than one subject, which shall be clearly subject the real estate of national banks to taxaexpressed in its title.” But it is the settled tion for local purposes is inoperative and void construction of this section that where an Act for repugnancy. The argument runs thus: unof Assembly is entitled a supplement to a former der the Act of Congress (R. S., Sec. 5219) only act, and the subject thereof is germane to the the shares and real estate of national banks subject of the original act, its subject is suffi- are taxable under State laws, and the shares ciently expressed to meet the constitutional re-l are not taxable at any higher rate than other quirement: State Line & Juniata Railroad moneyed capital of individuals; in PennsylCo.'s Appeal, 77 Pa. St., 429; Craig v. First vania the moneyed capital of individuals is Presbyterian Church, 88 Id., 42. In the pres- exempt from all local taxation and was so exent case the supplement, from first to last, re- empt prior to the passage of the Acts of June lates to revenue by taxation, and there is no 7, 1879, and June 10, 1881; at the time of the provision in it incongruous with the original passage of the latter act the only property of act.
national banks taxable for local purposes was 2. It is insisted that the third section of the their real estate; and, therefore, the restricting
words in the third section of the Act of June 10, 316, and Osborn v. The U. S. Bank, 9 Id., 739, 1881, excepted from the operation of the act the adjudged to be unconstitutional. only property of national banks to which the But it does not follow that because the tax is exemption could extend, and they thus consti- illegal, the plaintiff is entitled to an injunction tute a saving clause repugnant to the purview to restrain the collection thereof: Dow's v. of the act and void. But the argument is not Chicago, 11 Wal., 108; Hannewinkle v. Georgesatisfactory, and, even if the premises were town, 15 Id., 547; State Railraad Tax Case, 92 conceded, the conclusion sought to be deduced U. S., 575; and I am of opinion that the bill could not be accepted. For it was held in llep- does not bring the plaintiff's case within any burn v. The School Directors, 23 Wal., 480, that of the recognized foundations of equitable jurisshares in national banks in Pennsylvania may diction: Ibid. The ordinance imposing the be valued for taxation at an amount above their tax does not undertake to make it a lien, and par value, The Act of June 10, 1881, therefore, it is not enforceable by any summary process. does unquestionably leave something for its ex- The ordinance gives an action of debt for its emption clause to act on, and the argument collection, and it is not otherwise collectible. based upon a supposed repugnancy plainly fails. To such action the bank can set up its defense
It will be perceived that neither the act of and therefore needs not equitable relief. June 7, 1879, nor that of June 10, 1881, peremp- | What has been said covers all the questions torily imposes a tax of six-tenths of one per thus far raised, and it is only necessary to add centum upon the par value of the shares of that the motion for a preliminary injunction stock. Under each of these acts the payment must be denied.
And it is so ordered. of that tax is optional with the banks. The former act gave the banks the election to pay ! SUPREME COURT OF PENNSYLVANIA. the specified tax in commutation for all other
Sitling in the Western District. taxes under the laws of the Commonwealth;
The following judgments were entered October 4, 1882: the latter act gives the banks the like option in
BY MERCUR, J.: commutation for all taxes except that on real
Appeal from the C.C. P of Lancaster Co.-Schwelke's. estate; the only difference 18 m the extent Of The appeal from the order directing the issue derisurit the exemption. It is not pretended that the vel non is quashed, and the decree revoking the letters method of taxation conteniplated by this legis
testamentary issued to the appellant is reversed.
Error to ('. C. P. of Lancaster Co.-Mcllvaine v. Lantz. lation is open to constitutional objections or
Judgment affirmed. Lancaster ('o. v. Mishler. Judg. contravenes the provisions of the national bank
ment reversed and a v.f. d. n. awarded. act. Indeed the plaintiff is satisfied with, and Error to 0. T. of York Co.-Coyle v. Commonwealth. seeks the benefit of the Act of 1879. But why
Judgment reversed and a 1.f.d. n, awarded.
Error to C.C.P. of Blair Co.-Ake v. Mason. Judgment could not the Legislature modify that act by
affirmed. SHARSWOOD, C. J. and TRUNKEY, J, dissent. the amendments incorporated in the Act of Error to C.C.P. of Cumberland Co.-Eberly v. Lehman, June 10, 1881 ? Clearly it was competent for Judgment reversed and procedendo awarded. the Legislature to do so.
Appeal from the C. C. P. of Frauklin Co.--Lininger's. I am of opinion that none of the objections
Decree reversed at costs of appellees,
Appeal from the C.C.P. of Huntingdon (0.--Shaeffer's. which the plaintiff has raised against the va
Decree reversed. Distribution to be made according to lidity of the local taxation of its real estate for this opinion, appellees to pay costs of this appeal. the year 1882, are tenable.
Error to C. C. P. of Dauphin ('0.--Penna, ('anal (o. v.
Harris. Judgment reversed and a 1. 1. d. n, awarded. At the hearing of this case the validity of the
GORDON, TRUNKEY and STERRETT, JJ., dissent. ordinance of the city of Titusville in so far as it
BY STERRETT, J,: attempts to impose a tax license upon national
Error to C. C, P. of Dauphin Co.-Nat. Mutual Aid So banks doing business in that city, was not ciety v. Lupold. Judgment reversed. much discussed; and at present I shall simply Error to C. C. P. of Adams Co.-Myers v. Leas. Judg. indicate what my impressions are on that sub
Appeal from the C. C. P. of Huntingdon ('0.-Collom's. ject. It seems to me the ordinance undertakes
Decree reversed at costs of appellee, Jaron Dunsworth, to tax the operations of national banks and is a etc. direct obstruction to the exercise of their corpo Error to C.C.P. of Lancaster Co.-Morgan and Wife v. rate powers. I do not see that this license tax
| Yard. Judgment reversed and procedendo awarded. Co
lumbia National Bank v. Bletz. Judgment modified (as is distinguishable from the business tax in
to reduction of verdict by agreement to 8644.28) and volved in the case of the City of Pittsburgh v. affirmed. The First National Bank of Pittsburgh, 55 Pa. Error to C.C.P. of Cumberland ('0.-Sheaffer v. ClenSt., 45, which the Supreme Court of Pennsyl- de
denin. Judgment reversed, and judgment now entered
on verdict in favor of plaintiff for $127.56 with interest. vania, following the authoritative cases of Mc
MC | Error to C.C. P. of York Co.--Sponger v. Penna, Mutual Culloch v. The State of Maryland, 4 Wheat., | Aid Society. Decree reversed and procedendo awarded.