Blanchard vs. Trustees et al. German Evangelical Protestant Church. and assigns, describing them as being "Trustees of the two German religious societies or congregations, being known by the name of Congregation of the Protestant Evangelical Church who adheres to the Invariable Augsburg Confession; and the other religious society or congregation being known and distinguished by the name and denomination of the Protestant Reformed Church." In the habendum the conveyance is said to be "in trust nevertheless for and as a site for one or more houses of religious worship and a burial place for the said two religious societies or congregations, or their successors, in the said town of Pittsburgh and the vicinity thereof," and it is provided that the property is not to be used for any other purpose or interest. It is conceded, and testified to by witnesses called by each side. who, however, testified only from their knowledge acquired from historical investigations, that there were in fact, at the time the deed was made, two congregations in Pittsburgh, one Lutheran and the other Reformed, and that some time thereafter a building was erected upon the lot and was used alternately by the two congregations. This common use of the building and lot appears to have been continued until October, 1812. The defendants produced ancient documents, a number of which have the appearance of having been leaves in a notebook, the binding of which has altogether disappeared, containing what purport to be lists of church officers and statements of various matters connected with the church or churches, there being matters referring to each church in the older statements. On one of these pages is a statement to the effect that on October 18, 1812, a union of the two churches had been affected and one set of church officers elected and one pastor called for the united congregation. In 1821 the congregation was incorporated, the documents or minutes above mentioned referring to the act of incorporation with the same names in the charter and in the minutes. In 1860 by an Act of Assembly, P. L. 64, the congregation was authorized to remove the bodies from the burial ground on this property and lease 140 feet on Smithfield Street. There is no evidence of the existence of more than one congregation in possession of the property or claiming in any way to be one of the congregations referred to in the deed, or to be in any way entitled to the property from 1813 to the present time. In or about the year 1912 some members of the Pittsburgh Synod of the Reformed Church in the United States conceived the idea that that Synod ought to be entitled to a share of the property in question. This Synod was formed some forty years ago, and has jurisdiction of the Reformed Churches-formerly called German Reformed Churches-in Pittsburgh and for a considerable distance around it. At that time a committee of the Synod presented its claim to the defendant, requesting or demanding for the Synod a share of the property, which was refused. In May, 1913. an option was granted by the defendant to the plaintiff on a lease for 99 years of a part of the property, a copy of which marked Exhibit 1 is annexed to the plaintiff's statement of claim By this option the defendant agreed to procure an order of the Court of Common Pleas approving the proposed lease. and to make a good and valid lease for the property on the terms set forth or else to refund to the plaintiff the sum of ten thousand dollars paid by him at the time of the execution of the option, the damages on either side in case of failure to carry out the contract being confined to a forfeiture and a return of that sum. The option was to expire in ninety days after notice of the making of the order of Court referred to. The defendant thereupon applied to this Court for leave to make the lease, under the Price Act, and procured an order to that effect, of which a notice was given to plaintiff on June 24th, 1913. On September 22, 1913, the parties made an agreement for the extension of the time within which Bianchard vs. Trustees et al. German Evangelical Protestant Church. On the plaintiff should comply with the agreement, to June 10, 1914. October 20, 1913, there appeared in a Pittsburgh an article headed, "Synod of Reformed Congregation Claims Ownership in Smithfield Street Site." A copy of this article is attached to plaintiff's statement of claim as Exhibit No. 4, the effect of the substance of the article being that the Pittsburgh Synod of the Reformed Church claims a half interest in the property in question, and that they have been frozen out of their rights by the defendants, and that they intended to take legal steps for the possession of their share of the property and had appointed a committee; and it was further stated that explicit instructions had been given by the Synod to the committee to proceed without delay, and that the papers were already in the hands of attorneys. Sometime thereafter a formal notice was served upon the plaintiff by a committee of the Synod of the Reformed Church, to the effect that they claimed title to one-half of the property, and that the property was conveyed to the trustees for church purposes and no other, and that the defendants had no right to sell or lease the same, particularly for the purposes of a hotel. On January 8, 1914, counsel for the plaintiff notified the defendant in writing that the plaintiff would not accept the title in its present condition, that is, with the cloud hanging over it created by the claim for one-half of it made by the Reformed Church of the United States, and the threat of litigation made by it. In accordance with this notice the plaintiff refused to accept the lease, and this suit was thereafter brought. The plaintiff now sets up a number of other reasons why the title is unmarketable, besides that alleged in this notice. There is nothing in the case to estop him from doing so when suing for damages from the breach of the contract, although he might be so estopped if the defendant had brought an action against him. It is claimed by the plaintiff that the legal title to the property still remains in the three trustees or their heirs, and that the heirs of the Penns have a reversionary interest in the property if it is used for any other than church purposes. It is further claimed the title is unmarketable because it depends in part on oral testimony and on ancient documents not readily accessible, and, because there having been originally two congregations, one of them could not acquire title by lapse of time against the other; and, further, that there is a bona fide claim of title asserted against both parties and a threat of litigation to sustain it. We do not deem it necessary to discuss these claims in detail. We are clearly of opinion that there is no reasonable doubt, either in law or in fact, that the trustees named in the deed or their heirs have no legal title to the land in question, and that the heirs of the Penns likewise can have no claim. The doubts which the plaintiff suggests as to the identity of the present congregation with the two originally named are founded on the fact that the present state of affairs has existed beyond the memory of any living witness, so that the very antiquity of the defendant's title is alleged as a defect. It is conceded that the agreement to make a good and valid lease is an agreement to make such a lease by a good and marketable title, which means not a title as to the validity of which doubts may be suggested, but one as to which there is no reasonable doubt in law cr in fact. If any title which depended upon facts not appearing by the record was, therefore, to be deemed unmarketable there would be very few marketable titles to be found. One of the commonest instances is where a title passes by descent. How many children or descendants or how many collateral relatives a man had, and who they were, depends upon oral evidence, often widely scattered and difficult to obtain, yet such titles are constantly held to be marketable. It seems to us that so far as the facts are concerned there is no reasonable doubt that since 1813 there has been no congregation claiming the property in question, or that the present con Blanchard vs. Trustees et al. German Evangelical Protestant Church. gregation represents both of the original congregations united, which brings up the question upon which plaintiff put his rejection of the title, the claim of the Pittsburgh Synod of the Reformed Church. We have here an actual claim to the property, apparently made in good faith, which the claimants threatened to enforce by litigation. We do not understand that the actual making of a claim, or even the bringing of a suit upon it, makes the title so attacked unmarketable, in itself. A claim made in good faith, especially if followed up by a suit, is a matter to be taken into consideration in determining whether there is any reasonable doubt as to the title, and these circumstances are entitled to great weight in determining that matter. Where a claim, however, is manifestly and undoubtedly unfounded, the assertion of it, even by a suit, does not render the title unmarketable. It seems to us that the claim set up by the Pittsburgh Synod of the Reformed Church to the property in question, beyond a reasonable doubt, and, in fact, beyond any doubt, is entirely unfounded. Upon the whole case, therefore, we are of opinion that the verdict was rightly directed for defendant, and the motion for judgment for plaintiff non obstante veredicto is refused. Reddinger vs. Schran. Mechanics' Lien-Arbitration Assumpsit-Scire Facias--Conclusiveness of Award Judgment N. O. V. In order to maintain a mechanics' lien, it is necessary for plaintiff to show the existence of a debt and the circumstances which make that debt a lien on the property, and where in an action on the same claim in assumpsit, arbitrators had entered an award in favor of defendant, and no appeal had been taken therefrom, judgment non obstante veredicto for defendant will be entered on a scire facias sur mechanics' lien. An award of arbitrators in favor of defendant, unappealed from, is a judgment, and will estop plaintiff from proceeding further on the same cause of action, where the arbitrators decided in favor of plaintiff on a scirce facias sur mechanics' lien and in favor of defendant in assumpsit. There can be no recovery on the mechanics' lien. Sur Motion for Judgment for Defendant Non Obstante Veredicto. No. 285 April Term, 1914. C. P. Allegheny County. Waldo P. Breeden, for plaintiff. Lyon & Hunter and Herbert R. Hahn, for defendant. SHAFER, P. J., February 15, 1916.-The action is a scire facias on a mechanic's lien. The defendant put in evidence the record of an action of assumpsit brought by the same plaintiff against the same defendant for various items, including all the items for which the mechanic's lien was filed. The fact that the items were the same in the two cases was admitted by the plaintiff. This record showed that the cause had been submitted to arbitrators under the Compulsory Arbitration Law, and an award made for the defendant, from which award no appeal had been taken, the time for such appeal having long since passed. It appeared from the evidence and statements of counsel that the two cases had been submitted to Boards of Arbitrators consisting of the same persons, and were tried together before them, and that the arbitrators had found for the plaintiff in the mechanic's lien, which was a proceeding by the lien creditor against the owner, who was also contractor, but for some reason had found for the defendant in the action of assumpsit. From the award in the mechanic's lien the defendant appealed, no appeal being taken in the other case. Reddinger vs. Schran. In order to maintain a mechanic's lien it is necessary for the plaintiff to show the existence of a debt and the circumstances which make that debt a lien on the property. The plaintiff here is met by a judgment that the defendant does not owe the debt now sued for, and, although the whole matter may have been a mistake by the arbitrators as to what would be the effect of their award, it is one which is now past cure, no appeal having been taken within the time prescribed by law. We are of opinion, thereiore, that the defendant is entitled to judgment. It is ordered that judgment be entered for the defendant non obstante veredicto upon payment of the verdict fee. Divorce Smith vs. Smith. Void Marriage-Innocent or Injured Party Act of April 14, 1859, P. L. 641. Under the Act of April 14, 1859, P. L. 641, where libellant sought to have a supposed or alleged marriage declared vojd, a decree will be refused where the testimony shows that libellant maintained meretricious relations with the respondent prior to the time of the alleged marriage, and that libellant knew that respondent was married, so that there was no "innocent or injured" party within the meaning of the Act. In Divorce. Exceptions to Master's Report. No. 127 January Term, 1916. C. P. Allegheny County. H. D. Montgomery, for libellant. Ben Paul Brasley, for respondent. SWEARINGEN, J., March 22, 1916.-Joseph Smith filed this libel against his wife, Elizabeth Smith, in which he prayed that a decree be entered, declaring their marriage, celebrated June 28, 1911, null and void. The proceeding was instituted pursuant to Section 1 of the Act of April 14, 1859,* P. L. 641, which is as follows: "In all cases where a supposed or alleged marriage shall have been contracted, which is absolutely void, by reason of one of the parties thereto having a husband or wife living at the time, the Court of Common Pleas shall have power to decree the said supposed or alleged marriage to be null and void, upon the application of an innocent or injured party; and the jurisdiction shall be exercised, and the proceedings conducted, according to the principles and the forms which are or shall be prescribed by law for cases of divorce from the bond of matrimony." Under this statute the libellant is required to prove (1) a marriage between the parties, which was void because the respondent had a husband or wife living at the time the nuptials were celebrated, and (2) that the libellant was an "innocent or injured party." Unless both of these facts are established, the court has no power to enter the decree for which this statute provides. This libellant and respondent were living together in meretricious relations for several months prior to June 28, 1911, on which date their marriage ceremony was performed. In order to obtain the marriage license, they both falsely gave incorrect names and the respondent falsely stated that she was unmarried. She was at that time the wife of Michael Martin. About a month previously Michael Martin had filed a libel in divorce against his wife, this respondent, upon the ground of adultery, and he had named this libellant as the corespondent. The Master has found, upon Smith vs. Smith. ample evidence in our opinion, that both this libellant and respondent had notice of that proceeding and that both knew no decree of divorce had yet been granted. They lived together until this libel was filed. in fact until the subpoena was served upon the respondent. In view of the foregoing, this libellant is not, in our opinion, "an innocent or injured party," within the meaning of the above-quoted statute. O'Keefe vs. O'Keefe, 15 Pa. C. C., 88. Hence we have no power, even if we were so disposed, to grant the libellant the relief for which he prays. It would be a travesty upon justice for the courts to undertake to grant relief to either of these parties, under the circumstances detailed. Both entered this relation with full knowledge of all the facts and of what they were doing, and the law will not aid them. The exceptions to the Master's report must be dismissed. ORDER. And now, to wit, March 22, 1916, after argument and upon consideration, the exceptions to the Master's report are dismissed, and it is ordered that the prayer for a decree, declaring the marriage celebrated June 28, 1911. between the libellant and the respondent null and void, be and the same is hereby refused. Descent and Distribution- McKenna's Estate. -Audit--Claim for Commissions---Sale of Real On audit a claim for commissions for the sale of decedent's real estate will be refused where the weight of the evidence seems to clearly establish the fact that while claimant did, under a semblance of authority from one of the trustees, take up the sale of this property, that it was not consummated by his efforts or brought about by his labors, inasmuch as the purchaser and the trustees for the property had been in communication with it prior thereto and from other sources, and that claimant did not succeed in finding a purchaser and bringing the purchaser and the seller together; nor did there arise a consummation of sale between the parties as a result of his first introduction or his labors. Sur Claim of George B. Snyder for Commissions. No. 54 April Term. 1916. O. C. Allegheny County. A. V. D. Watterson and Edward A. Kraus, Jr., for accountant. MILLER, J., May 15, 1916.-The claimant testified that after the death of the decedent he had various conversations with one of the trustees ard executors concerning the sale of the real estate and the commission to be paid and that in pursuance of these conversations he took up the matter of purchase with Mr. Kirk, who was then and had been for a long time a tenant conducting the saloon and hotel business in the premises; that in November, 1915, for Kirk he made an offer of $35,000, which was declined, later of $37,000, which was also declined, and subsequently of $40,000 at which price the property was finally purchased by Kirk from the trustees. The two active trustees, Mr. Watterson and Mr. McKenna. and the counsel for Mr. Kirk, the purchaser, testified that it was not until after an offer for the property had been made by another purchaser some time early in November, 1915, that Kirk's counsel was notified of the offer and requested some time to consider the same, when negotiations finally resulted in a sale in the latter part of December of that year. It also appears from the testimony of Mr. Watterson and Mr. Brown, the attorney for Mr. |