WEEKLY NOTES OF CASES. Trent for $2400, upon the following terms: $800 in hand, and the residue in annual payments of $150, without interest. Trent entered and made valuable improvements. VOL. IX.] THURSDAY, NOV. 11, 1880. [No. 12. tained a judgment against Charles Trent, and On February 19, 1877, Stephen Trent ob Supreme Court. Oct. '79, 374. damages were assessed at $438 and costs. On November 6, 1877, Samuel Snyder obtained a judgment against Charles Trent et al., and damages were assessed at $315 and costs. On November 23, 1877, Harriet Snyder executed and delivered a deed to Charles Trent, Oct. 28, 1879. who, simultaneously with the delivery of the Snyder's Appeal. deed, executed and handed to the grantor two judgment notes, one for $323.41, to secure unLiens-Vendor and vendee-Lien for purchase-paid arrears of purchase-money, and the other money - Equitable and legal title-What a for $850, to secure the instalments not yet due. vendor must do upon the conveyance of the legal Judgments were entered upon these notes upon estate to preserve the priority of his lien for the following day. purchase-money against liens which bind the vendee's equitable interest. While, according to a strict application of the rule of law, any interval of time, however short, between the delivery of the deed and the entry of judgment for the purchase money will suffice to let liens upon the vendee's equitable title in upon the legal estate; yet, where the circumstances plainly reveal an intention on the part of both vendor and vendee to preserve the vendor's lien, and judgment is entered within a reasonable time (e. g, early the following morning), the priority of the lien for purchase-money is preserved. Watt v. Steel, 1 Barr, 386, distinguished. By a parol contract made in 1872, A. sold land to B., who entered and made valuable improvements, and continued paying the purchase-money in instalments as agreed, until 1877. Arrangements were made for the execution and delivery of a deed and confession of judgments for the balance of purchase-money, early in the morning of November 23d, 1877; but, from accidental causes, the transaction was not completed until within an hour of sunset; the premises in question where the settlement took place were eight miles from the county seat; the weather was foggy and rainy, and the roads were not good. Early the following morning, as soon as the prothonotary's office was opened, the judgments were entered. It was found as a fact that the vendor could have had the judgments entered of record on the day they were given, but the auditor found, further, that it was unreasonable under all the circumstances to have required or expected her to do so: Held, that the delivery of the deed and the confession and entry of judgments constituted a single transaction, and the priority of the lien for purchase-money as against liens upon the vendee's equitable interest was preserved. Appeal from a decree of the Court of Common Pleas of Somerset County, confirming the report of an auditor in the matter of the distribution of the fund arising from a sheriff's sale of the real estate of Charles Trent. The facts, as found by the auditor, were as follows: In 1872 Harriet Snyder by a parol contract granted and conveyed a tract of land containing 116 acres, in Stony Creek Township, to Charles VOL IX.-12 In 1878 Harriet Snyder issued an execution upon one of these judgments, the land was sold by the sheriff, and bought in by her for the sum of $1000. This sum was paid into Court, and an auditor (W. H. Rupple) appointed, before whom it was claimed on the one hand by Stephen Trent and Samuel Snyder upon their judgments, upon the ground that their liens attached the instant the legal and equitable_titles united in their judgment debtor, viz., on November 23, 1877; and on the other by Harriet Snyder, who claimed that circumstances surrounding the execution of the judgment notes, and the entry of judgment thereon, were such as to constitute (with the delivery of the deed), a single transaction, and consequently her lien for purchasemoney took priority. The facts concerning the delivery of the deed, etc., were found by the auditor as follows: "The deed was delivered and the notes taken between three and four o'clock in the afternoon of the 23d day of November, 1877, at the residence of Charles Trent, distant eight miles from the town of Somerset, the county seat, and about half a mile from the residence of Mrs. Snyder, the vendor, and the notes were entered on the morning of the next day as soon as the prothonrived at Somerset with the notes a little after otary's office was open, Mrs. Snyder having arsunrise, and before the prothonotary's office was open. The 23d of November, 1877, had been previously agreed upon by the parties as the day for the execution and delivery of the deed and the giving of the judgment notes for the balance of the purchase-money, and early in the morning of that day Mrs. Snyder, who is a widow and in feeble health, made preparation to come to Somerset as soon as she had the notes, for the purpose of having them entered of record against Trent on that day; but owing to the delay occasioned by the parties coming late, the sending for a person to witness the deed, and the settling | Court. Whereupon they took this appeal, asof disputes that arose between the parties,. the signing for error the action of the Court. deed was not delivered until late in the after- Valentine Hay, for appellants. noon, between three and four o'clock, or about an hour before sunset, and the day being rainy, cloudy, foggy, and disagreeable, the night dark, and the roads muddy, caused Mrs. Snyder to defer coming to Somerset until the next day. Mrs. Snyder could have had her two notes entered the day they were given, but it was unreasonable to require or expect her to do so under all the circumstances." As to the law, he said: "In the opinion of the auditor the only question to be determined is, must a judgment for purchase-money invariably be entered on the day the legal title is conveyed? or, in other words, are there exceptions to the rule which requires judgments for purchase-money to be entered on the same day the deed is delivered, in order to give them priority of lien ? It is quite clear that the Supreme Court intended to decide that judgments for purchase-money must, as a rule, be entered on the day of the delivery of the deed; but that where the intention of the parties at the time is to continue the vendor's lien, and the delivery of the deed is followed up presently by an entry of the judgment as soon as practicable under all the circumstances, these constitute but one continuous transaction, and give the vendor's judgment priority. "Under this view of the law it becomes important to ascertain what the intentions of the parties were at the time the deed was delivered, for both parties must have intended to continue the lien of Mrs. Snyder, else it fails. We think the case is free from difficulty in this respect. The testimony is very clear and uncontradicted that Mrs. Snyder, early in the morning of the day the deed was to be delivered and before the deed was executed, made arrangements to come to Somerset, and fully intended to have the notes entered on that day, and this intention was not intermitted until after she got home, and then her going to Somerset was postponed only because of the late hour of the day. She started next day before daylight, and arrived at Somerset before business hours, before the prothonotary's office was open, and had her notes entered as soon as she reasonably could have done after they came into her possession. Charles Trent by giving the notes in which he authorized judgment to be entered, when he received the deed, manifested his intention of havMrs. Snyder's lien preserved." The auditor found, therefore, that the priority of Mrs. Snyder's lien for purchase-money was preserved, and reported a decree accordingly. Exceptions on the part of Stephen Trent and Samuel Snyder were filed, and dismissed by the Judgments against a vendee bind every kind of equitable interest that he may have at the entry thereof, and the lien fastens upon the legal title eo instanti it is conveyed to him. Waters's Ap., 11 Casey, 523. Watt v. Steel, I Barr, 386. Jacobs's Ap., 11 Har. 481. If there are exceptions to the rule, what protection would purchasers and creditors have against secret liens? If Chas. Trent had sold the land on the afternoon of Nov. 23d, 1877, and the purchaser had paid the entire purchasemoney over, what notice could he have had that he did so at his peril? Or, if a creditor had examined the record, and finding nothing, had loaned money on the security of the land, why should his lien be postponed ? J. L. Pugh and W. H. Koontz for appellee. The rule that a judgment which is a lien upon an equitable interest will bind an after-acquired legal interest, is an exception to the rule which holds that a judgment is not a lien upon afteracquired lands, and it is submitted that the Court will not be astute to extend this exception. The cases cited by the counsel on the other side go no farther than to say that if a vendor desires to protect himself from the consequences of his vendee selling the land, or subjecting it to other incumbrances, he must enter his judgments on the day upon which the conveyance is executed; there is no case which says that judgment creditors, who have done absolutely nothing, except to enter their judgments and obtain liens upon what may be a very trifling interest, by expanding their liens over the whole estate, may obtain priority of the vendor, who may have done all in his power, and exercised all the vigilance he could, and yet not have been able to enter his judgment the same day. It is asked, if there are exceptions to the rule, what protection have creditors and purchasers? We answer, precisely the same as if a mortgage were given, which need not be recorded for sixty days. It can never be a hardship to say to a creditor or purchaser that where he is dealing with one who has but recently received the legal title, he must inquire of the vendor before venturing his money upon the faith of this newlyacquired title. Nov. 10, 1879. THE COURT. Applying a very strict rule to the case before us, any interval of time, however short, between the delivery of the deed and the entry of the judgment for the purchase-money, ought to let liens upon the vendee's equitable title in upon the legal estate according to their priority. But apices juris non Decree affirmed, and appeal dismissed at the costs of the appellant. Opinion by SHARSWOOD, C. J. May, '80, 193. May 20, 1880. Pennsylvania Railroad Co. v. The Com monwealth. Taxation-Corporations - Tax on stock-Valuation of stock for taxation where dividend is less than six per cent.-Act of June 7, 1879 (P. L. 112), construed. of the second section of this Act." sunt jura. A different principle was therefore adopted in Love v. Jones (4 Watts, 465), in which Mr. Justice KENNEDY said: "It is evident, however, that the delivery of the deeds to Stouffer (the vendee), and his confession of the judgment an hour afterwards for the residue of the unpaid purchase-money, were but parts of the same transaction, done in pursuance of the same agreement, and were to have such operation only as would most effectually promote the intention of the parties, so far as it was lawful." It is true that it was decided in Watt v. Steel (1 Barr, 386), that a judgment for the residue of purchasemoney entered up a day after the vendor had conveyed the legal title, did not exclude a prior judgment against the vendee. In that case, howSec. 4 of the Act of June 7, 1879, provided for the taxever, there was an evident break in the transac-ation of certain corporations according to the following computation: "If the dividend or dividends made or tion, and for all that appeared, it would have declared by such company or association, as aforesaid, been entirely practicable to have proceeded to during any year ending with the first Monday of Novemthe seat of justice and entered up the judgment ber, amount to six or more than six per centum upon the on the same day. In Jacobs's Appeal (11 Har- par value of its capital stock, then the tax to be at the rate ris, 480), Mr. Justice LEWIS said: "The admin. of one-half mill upon the capital stock for each one per centum of dividend so made or declared; if no dividend istrator of Samuel Jacobs conveyed to Grove, on be made or declared, or if the dividend or dividenas made Saturday evening, the 19th May, 1849, taking at or declared do not amount to six per centum upon the the same time judgments for the unpaid purchase- par value of said capital stock, then the tax to be at the money. This transaction took place sixteen rate of three mills upon each dollar of a valuation of the miles from Gettysburg, the seat of justice. It said capital stock, made in accordance with the provisions was unreasonable to require the entry of the of Sec. 2 provided that in case the dividends during that judgment that night. It was equally unreasona- time should be less than six per cent., the treasurer and ble to expect them to be entered the next day, secretary of the corporation "shall, between the first and which was Sunday. They were regularly en- fifteenth days of November of each year in which no divtered on Monday." It is true that he distin-appraise the capital stock of such company upon which no guished the case from Watt v. Steel, by the consideration that this was the act of an administrator, under an order of the Court, and that the act of the law does not receive so strict a construction. But so far as respects the rights of the prior Provided, That if the Auditor-General or State Treasurer, judgment, it seems to be a distinction without adif- or either of them, is not satisfied with the valuation so ference. Both cases were within the rule as origin-made and returned, they are hereby authorized and emally announced in Love v. Jones (4 Watts, 465), that the whole proceeding must be one continuous act, clearly evincing that it was the intention of the vendor to preserve the lien of the purchasemoney. In the case before us, according to the facts as reported by the auditor, it is very apparent that both parties intended to continue the lien, and so he reports. The judgments were to have been entered up on the same day, but from a circumstance not within the control of either party, the deed was not delivered until late in the afternoon, and the judgment was entered in the prothonotary's office the next morning, as soon as it was open. We think with the learned auditor, whose report was confirmed by the Court below, that this was all one continuous transaction, all done within the space of a day, within twenty-four hours, and it is entirely within the spirit and principle of the authorities to give effect to the judgment as a lawful continuation of the lien for the purchase-money. idend has been made or declared '. estimate and dividend has been made or declared powered to make a valuation thereof, and to settle an account on the valuation so by them made for the taxes, penalties, and interest due the Commonwealth thereon." On appeal from a settlement made by the AuditorGeneral and State Treasurer: Held, (affirming the judgment of the Court below), That for the purpose of such an assessment by the officers of the corporation or of the State, "the actual value in cash" of the stock is to be ascertained by the prices at which it sold between the first and fifteenth day of November, and not by the average sales during the year ending on the first Monday of November. Error to the Court of Common Pleas of Dauphin County. Appeal from the settlement made by the Auditor-General and State Treasurer for tax on capital stock of the Pennsylvania Railroad Company, for the financial year ending November 1st, 1879. The Act of Assembly of June 7th, 1879 (P. L. 112), provided as follows: "Section 2. That hereafter, except in the case of banks, savings institutions, and foreign insurance companies, it shall be the duty of the president or treasurer of every | upon the par value of its capital stock, then the tax to be company, now or hereafter incorporated by or under any law of this Commonwealth, and of every company now or hereafter incorporated by any other State or Territory of the United States or foreign government, and doing business in this Commonwealth, or having capital employed in this Commonwealth in the name of any other company or corporation, association or associations, person or persons, or in any other manner, to make report in writing to the Auditor-General, annually, in the month of November, stating specifically the total authorized capital stock of the company, the whole number of shares of stock, the number of shares of stock issued, the par value of each share, the amount paid into the treasury of the company on each share, the amount of capital paid in, the date, amount, and rate per centum of each and every dividend made or declared by their respective corporations during the year ending with the first Monday in said month; and in all cases where any such company shall fail to make or declare any dividend upon either its common or preferred stock during the year ending as aforesaid, or in case the dividend or dividends made or declared on either its common or preferred stock during the year ending as aforesaid shall amount to less than six per centum upon the par value of the said common or preferred stock, the treasurer and secretary thereof, after being duly sworn or affirmed to do and perform the same with fidelity, according to the best of their knowledge and belief, shall, between the first and fifteenth day of November of each year in which no dividend has been made or declared as aforesaid, or in which the dividend or dividends made or declared upon either its common or preferred stock amounted to less than six per centum upon the par value of said common or preferred stock, estimate and appraise the capital stock of such company upon which no dividend has been made or declared, or upon the par value of which the dividend or dividends made or declared amounted to less than six per centum, at its actual value in cash, not less, however, than the average price which said stock sold for during said year, and not less than the price or value as indicated or measured by the amount of the dividends made or declared, and when the same shall have been so truly estimated and appraised, they shall forthwith forward to the Auditor-General a certificate thereof, accompanied by a copy of their said oath or affirmation, by them signed, and attested by the magistrate or other person qualified to administer the same: Provided, That if the Auditor-General or State Treasurer, or either of them, is not satisfied with the valuation so made and returned, they are hereby authorized and empowered to make a valuation thereof, and to settle an account on the valuation so by them made, for the taxes, penalties, and interest due the Commonwealth thereon, and any corporation or company dissatisfied with such settlement may appeal therefrom, in the manner now provided by law for appeals from settlement of accounts by the Auditor-General and State Treasurer." at the rate of one-half mill upon the capital stock for each one per centum of dividend so made or declared; if no dividend be made or declared, or if the dividend or divi dends made or declared do not amount to six per centum upon the par value of said capital stock, then the tax to be at the rate of three mills upon each dollar of a valuation of the said capital stock, made in accordance with the provisions of the second section of this act; and in case any such company or association shall have more than one kind of capital stock, as for instance, common and preferred stock, and upon one of said stocks a dividend or dividends amounting to six or more than six per centum upon the par value thereof has been made or declared, and upon the other no dividend has been made or declared, or the dividend or dividends made or declared thereon amount to less than six per centum upon the par value thereof, then the tax shall be at the rate of one-half mill for each one per centum of dividend made or declared upon the capital stock, upon the par value of which the dividend or dividends made or declared amount to six or more than six per centum, and in addition thereto tax shall be charged at the rate of three mills upon each dollar of a valuation made also in accordance with the provisions of the second section of this Act, of the capital stock upon which no dividend was made or declared, or upon the par value of which the dividend or dividends made or declared did not amount to six per centum; and it shall be the duty of the treasurer or other officer having charge of any company or association upon which a tax is imposed by this section of this Act to transmit the amount of said tax to the treasury of the Commonwealth within fifteen days from the thirty-first day of December in each and every year: Provided, that whenever such corporation or company shall make any profit, and add the same to its sinking fund, without a division thereof among its stockholders, the amount of the profit thus added to its sinking fund shall be included in the report required by the second section of this Act to be made, and for the purpose of this Act the same shall be treated as having been divided amongst the stockholders and shall subject the capital stock to taxation as a dividend: Provided, however, that said money or any part thereof shall be expressly set apart for the payment of debts." "Section 4. That every company or association whatever, now or hereafter incorporated by or under any law of this Commonwealth, or now or hereafter incorporated by any other State or Territory of the United States or foreign government, and doing business in this Commonwealth, or having capital employed in this Commonwealth in the name of any other company or corporation, association or associations, person or persons, or in any other manner, except foreign insurance companies, banks, and savings institutions, shall be subject to, and pay into the treasury of the Commonwealth, annually, a tax, to be computed as follows, namely: If the dividend or dividends made or declared by such company or association as aforesaid, during any year ending with the first Monday of November, amount to six or more than six per centum The defendant corporation was chartered under the laws of the State of Pennsylvania, and at the time of the settlement of this account had capital stock of the par value of $68,870,200. On May 2d, 1879, it made a dividend of 2 per cent., and on November 1st, 1879, a dividend of 22 per cent. The dividends having been less than six per centum, an appraisement of the value of the capital stock was made by the secretary and treasurer of the company, based upon the average value of the stock during the year, from the first Monday of November, 1878, to the first Monday of November, 1879, as shown by the sales at the Philadelphia Stock Exchange. This valuation amounted to $51,652,650. tax on this amounted to $154,957.95, and was paid in full on January 15th, 1880. On March 4th, 1880, the Auditor-General and State Treasurer, being dissatisfied with this appraisement, made another valuation, based upon the public selling price of the stock between the first and fifteenth days of November, 1879, which resulted in a valuation of $66,804,094, the tax upon The which would be $200,412.27, an excess of $45,454.32 over the amount already paid by the company, and this balance they found to be due to the Commonwealth. The company appealed from this settlement to the Court of Common Pleas of Dauphin County, and the case being at issue upon a plea of nil debet, an agreement was filed dispensing with trial by jury, and referring the whole case to the decision of the Court of Common Pleas, under the Act of April 22, 1874 (P. L. 109), with the right to a writ of error on behalf of the company, without security. It was also agreed in writing: "That the valuation of stock on which the settlement in this case was made, was based upon the actual value of the stock in cash, as ascertained by its selling price in public market during the period extending from the first to the fifteenth day of November, 1879." The trial was before HENDERSON, J., who found the facts as stated above, and decided in favor of the Commonwealth for $47,727.03. Exceptions to this decision were filed, and all overruled by the Court, except the first, in compliance with which the facts found were stated specifically by the Court. April 24, 1880, judg ment was entered for the Commonwealth under the decision filed, and on the same day a writ of error was taken out by the defendant, who filed six assignments of error, all of which were substantially included in the following: "(5) The Court below erred in overruling the sixth exception of the defendant to the decision of the Court, which exception was as follows: The true measure for fixing the value of the stock for taxation under Act of 1879, for the year ending first Monday in November, 1879, is the average market value during the said year when not less than the amount indicated by dividends, and not the average value between the first and fifteenth of November, 1879, and the Court erred in not so holding.' Hall & Jordan (with whom was James A. Logan), for plaintiff in error. Under the second section of the Act, when the dividend declared equals or exceeds six per cent. "during the year ending" the first Monday of November, then such dividend is the measure of liability for taxation for that year, because it fixed its value during that period; but when the dividend is less than this, the secretary and treasurer of the company are to appraise the stock at its actual value in cash, not less, however, than the average price which it "sold for during said year," and not less than the value indicated by the amount of the dividend made or declared" within that year. Is it not clear that the "actual value in cash" must be its value during the time for which the tax is levied, and how can this be ascertained more surely than by its history during this period? The time for making the appraisement is clearly enough fixed to be between the first and fifteenth of November, but there is not a word in this clause to militate against the whole theory of the Act as to the time for which the appraisement is to be made. The legislative intent was to first, during the year, fix the value as determined by the dividends; when they showed a value equal to par or more, by amounting to six per centum or more, or when this failed, and the stock should be presumably below par, that an appraisement should fix its actual value within the year, as the measure of taxation. Moreover, the date of the appraisement adopted by the State officers was within the next financial year and may be included by the officers of the corporation in the return for the year ending Nov. 1880. The Act must be construed as a whole, and its spirit as well as its letter must be represented in such construction. Potter's Dwarris on Statutes, 189. Doroussean v. United States, 6 Cr. 314. If there be any doubt as to the construction of a statute for raising revenue, it will always be resolved in favor of the construction which conforms to the power of the Legislature. Cooley on Taxation, 41, 42. Washington Ave. Case, 19 Sm. 352. Gilbert, Deputy Attorney-General, and Palmer, Attorney-General, contra. The assessment for taxation must be made in accordance with the statute authorizing it, and it is based upon the value of the property at the time the assessment is made. "Every person is therefore to be taxed for the year upon his personalty, estimated as of the time of the assessment, and every parcel of land according to its value at that time." (Cooley on Taxation, 261.) The Act in unmistakable words requires the assessment to be made "between the first and the fifteenth day of November of each year." Unless it was supposed that its "actual value in cash," when such assessment should be made, might differ from the "average price which said stock sold for during the said year," then these words are insensible; but because of the very fact that fortuitous circumstances might cause its value at that time to be far above or far below its average selling price during the year, it was especially provided that in the event of its going below, then the average selling price, or the value as indicated by the dividends declared, should be the limit of the valuation upon which the tax should be levied. We are not concerned with the wisdom of the plan devised, but with the means of carrying it out. If it is objected that the tax is measured by a period of time, in regard to |