(243 Pa. 281) (Supreme Court of Pennsylvania. Jan. 5, 1914.) Where, in an action on a policy providing that it shall be void if the insured commits suicide, the proofs of death furnished by the beneficiary give suicide as the cause of death, the burden is shifted to plaintiff to show that the death was not caused by suicide. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1999-2002; Dec. Dig. § 817.*] 2. INSURANCE (§ 825*)-ACTION ON POLICYDIRECTION OF VERDICT-EVIDENCE. under treatment because of a recent injury. (243 Pa. 319) MCCLOSKEY et al. v. KIRK (two cases). (Supreme Court of Pennsylvania. Jan. 5, 1914.) - 1. COVENANTS (§ 69*) BUILDING RESTRICTIONS-OPERATION. Where a building restriction is created by covenant, it runs with the land. [Ed. Note.-For other cases, see Covenants, Cent. Dig. 88 67-69; Dec. Dig. § 69.*] 2. COVENANTS (§ 20*) RESTRICTIONS. IMPLIED BUILDING Where, in an action on a life insurance policy providing that it should be void if insured committed suicide, the evidence presented a question of fact as to whether he drank carbolic acid with suicidal intent or by mistake, and there was evidence that the beneficiary, with- A dotted line on a plan of lots referred to out knowledge of the contents, signed the in the deeds conveying the lots, with the words proofs of death prepared by the insurer's rep-"fifteen foot building line" above the dotted line, resentative which stated that insured committed is not of itself a valid, unlimited building resuicide, the court properly refused to direct a striction prohibiting the erection of buildings verdict for defendant. on the space indicated between the dotted line and the street property line. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. § 825.*] Appeal from Court of Common Pleas, Allegheny County. Action by Fanny Jenkner against the Supreme Tent of the Knights of the Maccabees of the World, and Bessemer Tent No. 92, Knights of Maccabees of the World. From judgment for plaintiff, defendants appeal. Affirmed. Argued before FELL, C. J., and BROWN, KER, JJ. A. C. Johnston, of Pittsburgh, and S. F. Bowser, of Butler, for appellants. Jos. F. Mayhugh, of Pittsburgh, for appellee. [Ed. Note.-For other cases, see Covenants, Cent. Dig. § 19; Dec. Dig. § 20.*] 3. COVENANTS (§ 53*) - RUNNING WITH THE LAND INTENT OF PARTIES. Whether the parties intended that a covenant in a deed should run with the land is to be ascertained in equity by the words of the and subject of the grant. covenant, read in the light of the surroundings [Ed. Note.-For other cases, see Covenants, Cent. Dig. §§ 22, 52; Dec. Dig. § 53.*] 4. Covenants (§ 20*)—IMPLIED BUILDING RE STRICTIONS. While building restrictions are enforceable, they are not favored by the law, and will not be implied or extended by implication. [Ed. Note.-For other cases, see Covenants, Cent. Dig. § 19; Dec. Dig. § 20.*] 5. COSTS (8_32*) — RIGHT IN GENERAL-PREVAILING PARTY. Where, in suits to enforce a building restriction, it appeared that defendants, upon being notified by plaintiffs that they were violating the restriction, instead of taking legal steps to have the validity of the restriction adjudicated, defiantly continued their building op restriction was limited in time and had expired, they were liable for the costs, though a decree was entered dismissing the bills. PER CURIAM. [1] The policy of insurance issued by the defendant on the life of the plaintiff's husband contained a provision that it should be void if the insured committed suicide. His death was caused by his drinking carbolic acid when alone in his bed-erations and failed to notify plaintiffs that the room. The question at the trial was whether he drank the acid with suicidal intent or by mistake for a medicine he was accustomed to take. In the proofs of death furnished by the plaintiff, who was the beneficiary named in the policy, suicide was given as the cause of death. This shifted the burden of proof. Felix v. Ins. Co., 216 Pa. 95, 64 Atl. 903. [Ed. Note. For other cases, see Costs, Cent. Dig. 88 108-132; Dec. Dig. § 32.*] Appeal from Court of Common Pleas, Allegheny County. Two bills in equity to enforce building restrictions, both by Louis J. McCloskey and another, one against William H. Kirk and the other against C. E. Kirk. From decrees dismissing the bills, plaintiffs appeal. Affirmed. [2] In support of her claim, she testified that the proofs of death were filled out by a representative of the defendant, were not read to her, and were signed by her without a knowledge of their contents; that the bottle containing carbolic acid had been procured by her husband for household use, and had been placed in a closet with bottles containing his medicine; and that at the time his sight was impaired and his eyes were Miller, P. J., who specially presided in the court below, filed the following findings of fact, conclusions of law, and opinion in the case of McCloskey et al. v. William H. Kirk (No. 142): "The question is whether a dotted line in a recorded plan of lots with the notation 'build-, Brownsville road, are also distant 15 feet ing line' constitutes a building restriction as and more from the street property line. a covenant running with the land which every property owner must observe. "(5) By deed dated March 4, 1912, recorded in the recorder's office of Allegheny courty, in Deed Book, vol. 1746, p. 187, the South Park Land Company conveyed to the defendant lot No. 1 in said plan, who shortly thereafter began the erection of a three-story apartment house on said lot; the foundation walls of said lot are within six feet of the street property line, and extend nine feet over the alleged building line toward the street. Kirk, the defendant, was notified by his own engineer, Donnelly, who made a survey of the lot for Kirk at the time of its purchase, of the existence of said dotted line, coupled with the advice that he, Kirk, build back 15 feet from the street line in accord "The bill, by two owners of improved lots in the plan, alleges that the defendant has erected a building upon one of the lots which extends over the alleged building line near to the street, contrary to the implied cove nant and burden cast upon all the lots, and thus precludes light, air, and prospect over and through that portion of plaintiffs' lots, and all other lots in the plan, intended by the restriction to be kept open and unobstructed. The answer admits knowledge of the alleged building line as indicated in the plan, but denies that it is a valid restriction; it further sets up that changed conditions since the plan was recorded justify the abandon-ance with said apparent restriction. He was ment of the alleged restriction. "The following are the material facts: "(1) The South Park Land Company, owners of a large tract of land situate in the borough of Carrick, Allegheny county, laid out and recorded September 10, 1902, in the recorder's office of Allegheny county, in Plan Book, vol. 19, p. 178, its plan of lots, through which were laid out several streets or avenues, among others, Park avenue, now known as Hazel avenue, and Southern avenue, now known as the Brownsville road; the lots in question front on the Brownsville road. There appears on said plan a dotted line drawn across all the lots on Southern avenue, now Brownsville road, in said plan, with the following words on or above said line: 'Fifteen foot building line.' This line is drawn across the lots owned by the plaintiffs and the defendants, as hereinafter more fully referred to. "(2) The South Park Land Company conveyed lot No. 8 in said plan to William T. Waite, one of the plaintiffs, by deed dated January 17, 1905, recorded in the recorder's office of Allegheny county in Deed Book, vol. 1386, p. 546. It conveyed lot No. 9 by deed dated May 1, 1905, recorded in Deed Book, vol. 370, p. 549, to the grantor of the other plaintiff, Louis J. McCloskey, who has a binding contract for the purchase of said lot. The deeds from the South Park Land Company for the above-named lots describe them only by number as recorded in said plan, giving their dimensions; there is no reference to any building restriction nor any covenant with respect to a building line in said deeds, or either of them. also notified by the plaintiffs, as appears by Exhibit A, attached to the bill and made part hereof, of his violation of the alleged building restriction, and requested him to construct his building in accordance with the restriction. This notice was promptly given, and before the foundation walls of defendant's building were completed. Notwithstanding this notice or the information he obtained from Donnelly, or the notice given by him in 1902 to McCloskey of the existence of this line, the defendant continued the erection and completion of the said apartment house at a cost estimated at $15,000. "(6) The character of the neighborhood has not changed from residence to business property since the laying out of the plan to such an extent as of itself would lay foundation for a fact that the alleged building restriction should no longer be observed. "(7) From the minute book of the South Park Land Company there appears, and was offered under objection, the following under date of August 14, 1902: 'Motion, Mr. Scott; seconded by Mr. Neisum, that the time limit on the building restriction on lots be limited to 10 years. Carried.' There is no evidence that this alleged limitation was communicated to the plaintiff or any other purchasers in said plan of lots at and prior to the time of their respective purchases, nor is there any record made thereof other than as appears in the minutes. "(8) There is no evidence that the plaintiffs, or either of them, made any inquiry or investigation as to any acts or declarations, whether contained in the minutes of the South Park Land Company or otherwise, "(3) The defendant, William H. Kirk, was which created and defined said dotted line an officer of the South Park Land Company, and declared the same as irrevocable, unlimand called the attention of the plaintiff Wil-ited building restriction; nor is there any liam T. Waite to the fact that a building evidence that the South Park Land Compaline appeared upon the recorded plan at the ny, by resolution or otherwise, ever created time Waite purchased the lot above described. or defined a building restriction as applica"(4) The buildings owned by the plaintiffs ble to said lots. are dwelling houses; both are distant 15 feet and more from Brownsville road; other buildings, except those erected by the defend "Conclusions of Law. "1. A dotted line drawn across a plan of line' above said dotted line, of itself, is not a valid, unlimited building restriction prohibiting the erection of buildings on the space between that indicated by the dotted line and the street property line. with the land is the intention of the parties; to ascertain such intention resort must be had to the words of the covenant, read in the light of the surrounding of the parties and the subject of the grant. Landell v. "2. Plaintiffs were put upon inquiry as to Hamilton, 175 Pa. 327, 34 Atl. 633 [34 L. R. the creation and purpose of the dotted line ap-A. 227]. Before it can be assumed that the pearing on the South Park Land Company's notation on the plan is equivalent to a coveplan; such investigation would have shown. nant in the deed running with the land, or inter alia, that the alleged restriction was is the equivalent of an irrevocable easelimited to 10 years from August 14, 1902. ment, the intention of the parties in the cre“3. Under these circumstances equity can-ation of the covenant or easement and of not afford relief; this without prejudice to their several grantees must be reached. The the plaintiffs' right to sue for damages the words 'Building Line 15 Ft.' of themselves original grantees, the South Park Land Com- are not conclusive; granted that the existpany, and these defendants, both or either of ence of this notation upon the plan indicates them. a restriction, what is the extent thereof as "4. The bill must be dismissed, but the de- to time or as to character? The court is fendants must pay the costs. [1] "The manner in which restrictions limiting the use of land is created may be by reservation in the deed, by a condition annexed to a grant, by a covenant, or even by parol agreement of the grantees. When created by covenant it runs with the land. Whether it runs with the land or whether it is an easement is immaterial, provided the creation of the restriction is clearly defined and is understood by the parties at the time. [2] "These restrictions, if reasonable, may be enforced in courts of equity against the lard designated to be benefited or burdened in whoseoever hands the lands may be, without regard to whether the creation of the restriction is in the nature of an easement or of a covenant, provided that the parties, both the grantee and the grantor, understood the nature and burden of the restriction and had notice thereof, either actual or constructive. "The great majority of cases arise where tracts of land are sold in lots, and covenants are exacted imposing restrictions upon the use of the lots sold in pursuance of the general plan for the mutual advantage of all the lots. asked to construe the notation upon the plan as a solemn covenant running with the land for an indefinite period, and this as being within the intention of the parties at the time. "The appearance of this dotted line on the plan without more, conceding that the plaintiffs knew of it before they received their deeds, coupled with the tender of deeds which made no reference to the line nor indicated it as a restriction, put them upon special inquiry; so important a matter as a restriction creating a covenant running with the land or as an easement irrevocable as to time demanded further information from those creating this limitation as to its meaning and scope. The source of information was the corporate act of the plaintiff's grantee, the South Park Land Company; unless it affirmatively appeared that the original owners of this land created this building restriction with the effect of a covenant, and that the dotted line was the complete evidence thereof, and that it authorized its incorporation as a covenant in the acknowledgment in the plan, it meant nothing. Whether such investigation would have shown the foregoing "The alleged restriction in the case at acts from which the effect thereof could be bar differs from all others found in any of construed as a binding covenant or easement the adjudicated cases by either of the appel- does not appear; this investigation certainlate courts in Pennsylvania. In every one, ly would have shown action by the grantee and to name them would constitute a great limiting the alleged restriction to 10 years. list, either the restriction or condition ap- "It cannot be said that this investigation peared in the conveyance itself without ref-imposed an undue burden upon the plainerence to any plan, or if the conveyance tiffs. When title depends upon corporate was made according to a plan upon which action, mere reference to such action in the appeared restrictions or limitations, refer- conveyance is not accepted by a careful perence to the restrictions or limitations in the son. He wants to know, and has a right to plans were made part of the covenants in know, if the action as shown by the minutes, the deed. after an examination of them, or of certified copies thereof, are correct; the minutes themselves or authenticated copies thereof must not only show that action was taken, that it was legally taken, but must show everything that has any bearing or relation to the title he is called upon to accept. In arriving at the conclusion that this dotted "The bare, naked indication of a restriction in the case at bar is a dotted line with the words '15 Ft. Building Line' connected therewith running parallel to certain streets, from which alone it is urged that a binding limitation amounting to a covenant irrevocable in time runs with the land. [3] "In equity the test by which to deter-line on the plan in question does not consti out adjudicated precedents in the state. The nearest approach to it is May v. Morris, 58 Pitts. Leg. J. 344, in a brief opinion by Judge Macfarlane of the common pleas court of this county, wherein it was held that a mere dotted line on a plan, without more, did not create a covenant running with the land, and was not an incumbrance to the title. the case at bar, coupled with the particular fact in this case, to-wit, that investigation would have shown that the alleged restriction was a limited one, and has expired, are sufficient to deny the right of the plaintiffs in equity. [5] "In so holding, their right for damages in an action at law, as against their grantees who failed to disclose to them voluntarily the limitation upon the alleged restriction which the plan showed, and as against the defendants, particularly Dr. W. H. Kirk, who had knowledge of this restriction, and should have disclosed its limitation, is not precluded. The representation made by him to Waite of the existence of this notation on the plan, coupled with his failure to state that the restriction, if it did exist, was limited as to time, when as an officer of the corporation be was bound to know of the corporate act, is peculiarly aggravating. Instead of defiantly continuing their building operations after notice by the plaintiffs of the alleged violation of the restriction, the defendants should have taken legal steps to have the validity of the so-called restriction adjudicated, and are liable for the costs of these proceedings." Exceptions to the findings of the trial [4] "While no authorities are cited for this conclusion, it seems correct on principle. For, while such restrictions are held lawful and enforceable, they are not favored by the law, and the courts will not recognize implied rights and extend covenants by implication. Crofton v. St. Clement's Church, 208 Pa. 209, 57 Atl. 570. In Gilmore v. Times Publishing Co., 18 Pa. Super. Ct. 363, the rule is stated as follows: "The court must be convinced that he or his predecessor in title has taken the premises by a deed which contains a restriction or condition expressed in clear and certain terms, or which contains a promise, agreement, or undertaking on the part of the grantee clearly expressed, or which contains such terms as have a certain legal operation from which a covenant would necessarily arise.' The deeds to the plaintiffs certainly contain no restriction or condition, or promise, agreement, or undertak-judge were dismissed by the court, and a deing, by express terms or otherwise, from which a covenant or easement is created; nor are there in these deeds any terms from which covenants necessarily arise as 'a certain legal operation.' "In view of the adjudicated cases, showing that creation of such covenants in the conveyances themselves, or clearly defined restrictions appearing upon plans which in terms are made part of the conveyance, in view of the conviction that so important and vital a matter as the restriction or limitation upon the free right to use land as the owner may see fit must be made to appear by more affirmative action than has been produced in cree was entered, dismissing the bill, but the defendant was ordered to pay the costs. Argued before FELL, C. J., and ELKIN, STEWART, and MOSCHZISKER, JJ. of Pittsburgh, for appellants. E. W. Arthur E. B. Strassburger and W. H. Lemon, both and W. S. Thomas, both of Pittsburgh, for appellee. PER CURIAM. The decrees appealed arise from substantially the same facts. They are affirmed on the findings of fact and law and the opinion of Judge Miller, specially presiding, filed in No. 142, (243 Pa. 328) In re MILLER'S ESTATE. BURGH. (Supreme Court of Pennsylvania. Jan. 5, 1914.) 1. PAYMENT (§ 66*)—PRESUMPTION-LAPSE OF TIME-BURDEN OF PROOF. That a suit on a debt evidenced by a specialty or a record, to which no statute of limitations applies, is brought more than 20 years after the debt became payable does not throw the burden of proving it unpaid on him who claims it where, within 20 years, a fair, though unsuccessful, effort has been made to recover the debt by suing out legal process, [Ed. Note. For other cases, see Payment, Cent. Dig. §§ 176-188; Dec. Dig. § 66.*] 2. JUDGMENT (8_870*)-SCIRE FACIAS TO REVIVE-PRIMA FACIE CASE. Where the scire facias relied on to revive a judgment was marked with all the signs of a fair prosecution of the claim, the production of the record thereof, which disclosed nothing to weaken its effect, placed upon the defendant the burden of showing that it was not taken in good faith to recover the debt. tween that case and this been pointed out, except with respect to immaterial facts. The rule there announced, and since uniformly observed, is that, "where a party has a debt against another evidenced by a specialty or a record, and to which no statute of limitations applies, the burden of proving it unpaid is not thrown upon him who claims it, even in a suit brought more than 20 years after it becomes payable, if within 20 years a fair effort, though an unsuccessful one, has been made to recover it by suing out legal process for that purpose." [2, 3] In the present case the judgment was entered on verdict 28th December, 1883. A writ of fieri facias issued 22d May, 1886, which has never been returned. A writ of scire facias to revive and continue the lien was issued 15th January, 1896, and was returned served on the defendant. To this writ there was an appearance, and the action was pending when the defendant died in [Ed. Note. For other cases, see Judgment, 1911. The record shows no further proceedCent. Dig. 88 1609, 1613-1640; Dec. Dig.ing in the case. In the distribution of the 870.*] estate of the defendant in the judgment, the 3. PAYMENT ( 66*)-LAPSE OF TIME-PRE- plaintiff demanded payment, and it was SUMPTION EVIDENCE TO OVERCOME. A formal legal proceeding to revive a judg-awarded him, against the objection that bement does not overcome the presumption of cause, 20 years having elapsed since the enpayment arising from lapse of time, where the try of the judgment, the law presumed payproceeding has not been made in good faith to ment. The case of James v. Jarrett, 17 Pa. recover the debt, but is made for the sole pur-370, fully supports this ruling. The present pose of repelling the presumption. [Ed. Note. For other cases, see Payment, case stands clear of the exception to the Cent. Dig. §§ 176-188; Dec. Dig. § 66.*] Appeal from Orphans' Court, Allegheny County. Adjudication in the estate of Thomas N. Miller, deceased. From a decree dismissing exceptions to the adjudication, the Woman's Hospital of Pittsburgh appeals. Affirmed. Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, JJ. John F. Tim and Sterrett & Acheson, all of Pittsburgh, for appellant. Charles A. Robb, of Pittsburgh, for appellee. STEWART, J. [1] Our attention has not been directed to any case in which the ruling in James v. Jarrett, 17 Pa. 370, has been departed from; nor has any distinction be rule which is in that case remarked upon, namely: That a former legal proceeding will not be allowed to overcome the presumption of payment where the proceeding has not been made in good faith, with the sincere object of recovering debt claimed, but for the sole purpose of repelling the presumption. The scire facias to revive the judgment in this case, as in that, is marked with all the signs of a fair prosecution of the claim. No burden, therefore, rested on the plaintiff to establish his good faith in connection therewith. By the production of the record, which disclosed nothing to weaken its effect, he has established a prima facie right, and the burden of impairing that prima facie right rested upon the defendant. The assignment of error is overruled, and the judgment is affirmed. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |