Davidson v. Davidson ings, and that it must be consistent with the relief prayed for"; A deed for a one half interest in same as a separate deed for one Luther vs. Luther, 216 Pa., 9. the whole property is not the of the two houses. A deed for one house may be more valuable than a deed showing a joint tenancy with the wife for the two, houses. The evidence to sustain a trust must clearly identify the property. We are also convinced that the husband knew, from the day the conveyance was made, that the title was placed in the wife's name. He could not close his eyes to the facts that confronted him. He knew there was but one deed, and not two deeds as provided in the alleged agreement. As already stated, the transfer of the twenty shares of stock on the day of the purchase of the property, indicates that one of the purposes in the mind of the plaintiff was to enable his wife to take title in her name. His indifference to the care of the property; the wife's payment of the taxes, the interest on the mortgage and the dues in the association, all indicate that he must have known that no part of the property was in his name. From May 1911, until April 1916, he was confronted with all these evidences that the wife held the title. But if he had no actual knowledge that the title was in his wife's name, how can he deny that by the exercise of reasonable diligence he would have discovered the alleged fraud? His indifference to the whole transaction is manifest, when according to his own testimony, he waited a little more than three years after the discovery before he instigated proceedings to establish a trust in the real estate in his favor. The institution of the suit looks like an after thought prompted by the decree in divorce in 1919. A careful study of the evidence convinces us that he knew, or at least would have. known, by the exercise of reasonable diligence more than five years before his bill was filed, that the title to the property in question stood in his wife's name. But as already shown, the conclusion is irresistible that he intended that the wife should become the owner of the property at the very inception of the purchase. Davidson v. Davidson CONCLUSIONS OF LAW 1. The transfer of the twenty shares of building and loan association stock by the plaintiff on May 25, 1911, was, under the evidence and the law, a gift of said shares of stock to the wife. 2. No resulting trust in said real estate in favor of the plaintiff is established by the evidence, as the purchase money for the property was not furnished by the plaintiff. The wife paid the cash out of her individual funds, and the balance of the purchase money was secured by a pledge of the real estate so purchased and the pledge of her stock in the building association. At least there is no evidence, that is clear, explicit and satisfactory, to support the allegation that the husband supplied the purchase money. 3. No trust ex maleficio is established by the evidence, as there was no actual fraud, on the part of the wife, in the purchase of the real estate, nor did he furnish the money to pay for the said property at its purchase. 4. The proofs do not support the prayer in the bill. There is no evidence submitted from which we can find that the plaintiff and defendant were to hold the property as joint tenants or under one deed. Under the plaintiff's testimony the only allegation made is distinct, that the husband was to have a separate deed for one of the houses as sole owner. The decree prayed for is not consistent with proofs. The probata and allegata do not agree. He does not identify, by the evidence, the house upon which the trust is fastened. 5. The plaintiff knew that the fraud, if any, was committed on the day the title was placed in the name of the wife. At least he would have discovered this fact more than five years before the bill was filed, if he had exercised reasonable diligence. The action is barred by the limitation fixed, under the Act of April 22, 1856, P. L., 533. 6. The defendant is entitled to a decree in her favor, that the bill be dismissed at the costs of the plaintiff.. Court of Common Pleas of Montgomery County O'Donnell et al v. Schoonmaker Defendant's wife while driving an automobile struck and injured one A.. a minor. Suit was brought by B., the father of the minor, against defendant. Defendant filed his affidavit of defense, raising the question of law as to his responsibility, the original statement was amended in that the automobile was a pleasure one for the convenience of defendant and his family, and while used in that manner the injury for which suit was brought was done. The possession of the car by the wife at the time of the accident in question was the possession of her husband." Therefore the right of the recovery against the husband can be sustained, leave however is given the defendant to file a supplemental affidavit of defense. No. 132, September Term, 1920. Affidavit of defense raising question of law. Evans, High, Dettra & Swartz, Attorneys for Plaintiff. C. Donald Swartz, Attorney for Defendant. Opinion by Miller, J., August 2, 1920. While lawfully on a side-walk of a street in Norristown, the minor plaintiff was negligently, it is alleged, injured by being run into by an automoble which was owned by the defendant, but, at the time, occupied and driven by his wife. There was no averment in the original statement of claim to the effect that the defendant was present when the accident happened, that he even owned the car, or that was, in anywise, calculated to fasten responsibility upon him other than such as might arise from the marital relationship existing between him and its driver. That on the facts, as thus pleaded, there was no liability on the part of the defendant is now well settled. The wife, and not her husband, is liable in damages for her own torts: Gustine, app., vs. Westenberger, 224 Pa. 455, 460. And where the responsibility is solely hers, it is not only unnecessary but improper even to join the husband as a defendant: Smith vs. Machesney et al., app., 238 Pa. 538; Hinski vs Stein, 68 Pa. Sup. Ct. 441. But these principles do not apply to the facts as they are O'Donnell et al v. Schoonmaker now before us, because the original statement was afterwards amended by adding a paragraph which reads as follows: "Said automobile was the property of the defendant, Irving R. Schoonmaker; was a pleasure automobile purchased by him. for the benefit, pleasure and convenience of himself and his family, and was kept and used by said defendant for such purpose; and that defendant's wife, Arlie Schoonmaker, was a member of defendant's family at the time of said accident, and was operating said car, with the permission and authorization of the said. defendant in and about the business for which said car was purchased, kept and used, to-wit-for the benefit, convenience and pleasure of defendant and his family.' This averment clearly shows that it is not sought to hold the defendant by reason of the marital relationship, but on the broader ground that a duty rests upon every man, in the management of his own affairs, whether by himself or by his agents or servants, so to conduct them as not to injure another, and that if he does not do so, and another is thereby injured, he shall answer for the damage. Hence, one who keeps an automobile for the pleasure and convenience of himself and family, is liable for injuries caused by the negligent operation of the machine while it is being used for the pleasure or convenience of a member of his family. *** His liability results from the fact that his car was being used for the purpose he had authorized. *** And he is prima facie responsible for its management when in ordinary use for that purpose. Crouse, et al., vs. Lubin, appellant, 260 Pa. 329; Ruskovic, et ux. vs Linder, 29 Pa. D. R. 397. The possession of the car by the wife at the time of the accident in question was the possession of her husband. It therefore follows that defendant's contention that in the absence of an allegation that the tort complained of was committed in his presence or at his special instance and request it should be said, as a matter of law, there can be no recovery, is without merit. And now, Second August, 1920, after hearing, the question of law raised by the affidavits of defense is decided against the defendant, who is allowed fifteen days within which to file a supplemental affidavit of defense to the averments of fact of the statement, as amended. Court of Common Pleas of Schuylkill County Maginnis v. Schlottman The County Controller refused to approve the bill for the salary of the Third Assistant District Attorney whereupon that petition for a writ for alternative mandamus was issued to said Controller to compel him to audit and approve the said bill. The salary of the various assistants was regularly fixed by the salary board, the question raised was whether section one of act of March 31, 1876, and section sixteen limit the payment of Deputies and Assistants, to an amount not in excess of the fees received by the office. Act of July 17, 1919, P. . 995, fixes the maximum amount of salary in certain counties, it was held that the act of 1919 did not repeal the act of 1876 even as to the salaries of Assistant District Attorneys and that the act giving the salary board power to appoint simply states "Deputies or Clerks." The words of "Deputies" and "Assistants" are used interchangeably and it is admitted that deputies can only be paid when fees are earned. Therefore the salaries of the Assistant District Attorneys can only be paid when the office carns the money and petition for alternative writ of mandamus is dismissed. No. 121, May Term, 1920. Cyrus M. Palmer & James B. Reilley, Attorneys for Petitioner. This case comes before us upon the petition of Edward J. Maginnis, third assistant district attorney for the County of Schuylkill, praying that a writ of alternative mandamus issue to John E. Schlottman, county controller, commanding him to audit and approve the bill for salary of the petitioner, or show cause why he should not do so. To this petition a demurrer has been filed, but upon the argument of the case, all technicalities interposed have been withdrawn by counsel, leaving but one question for our consideration; whether or not the assistant district attorneys should be paid their salary out of the county treasury irrespective of the fees earned by the office of district attorney. The following facts have been established, either by the petition and answer or the admission of counsel. On the fifth day of January, 1920, Edward J. Maginnis was regularly appointed third assistant district attorney for the VOL. XXXVI-No. 38 |