of Pittsburgh and Allegheny." The ground rent in question was paid to Elizabeth A. Mowry during her lifetime and after her death to Mary Nightingale until her death in 1872, and from that time until May, 15, 1906, to the Protestant Orphan Asylum of Pittsburgh and Allegheny. There was no conveyance or assignment of it, however, to

ALLEGHENY COUNTY.

SINGER et al. v. PRATT et al.

Ground rents-Statute of limitations-Payments Under the statute of limitations of April 27, 1855, as to ground rents the payment of the rent to parties not the real owners is not a payment which prevents the renewing of the statute in a suit by the actual owner.

1906, a deed was made by the Orphan Asylum to the owner of the land, which deed recited that Elizabeth A. Mowry in her lifetime became seized of the rent in questhe will of Peter Mowry above referred to, tion, that it vested in her by the clause in and has been paid "up to and including May 15, 1906, without objection to, adverse claim or demand from any person or persons whatsoever;" and that the purpose of the deed was to extinguish the rent forever. Since May 15, 1906, no rent has been paid. The question for determination is whether the rent in question has been extinguished

This action was to recover forty-six aunual installments of ground rent of $22.50 each with interest thereon, amounting in all to $1,428, reserved in a deed made by Peter Mowry to Daniel Pratt, dated December 10, 1806, and recorded in the recorder's office of Allegheny county in Deed Book Vol. 14, page 248, for a lot of ground fronting 22 feet on Third avenue and running back 84 feet. The facts are undisputed and are as follows: Peter Mowry created the rent in question by an ordinary deed of perpetual lease, dated December 10, 1806, and devised the annuity, inter alia, to his wife, Elizabeth A. Mowry, and their four sons as tenants in common. By deeds of partition, the rent subsequently vested in George Ross Mowry, one of the sons, in severalty, and by the terms of the will of George Ross Mowry, who died in 1861, it vested in plaintiffs. Elizabeth A. Mowry, the wife of Peter Mowry, died in 1872, leaving a will by which she devised "my ground rents in the city of Pittsburgh, amounting to $100 per annum, unto my executors in trust to pay the income thereof to Mary Nightingale, during her life, and at her decease to pay

section of the act of April 27, 1855, P. L. 369, provides as follows: "In all cases where no payment, claim or demand shall have been made on account of or for any ground rent, annuity or other charge upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises subject to such ground rent, annuity or charge, a release or extinguishment thereof shall be presumed, and such ground rent, annunity or charge shall thereafter be irrecoverable."

Under the act quoted, the natural presumption of payment after a lapse of twentyone years becomes a presumption of law, and unless it appears that there was within twenty-one years either a payment or demand or a declaration or acknowledgment of the existence of the rent, the "annuity or charge shall thereafter be irrecoverable." It is admitted that no claim or demand wast made by plaintiffs or by any person upon their behalf for payment of the charge since the year 1865, nor was any acknowledgment made to plaintiffs or any one for them of the existence of the charge. Therefore, unless the payments made to Mary Nightin

gale and the Orphans' Asylum of Pittsburgh and Allegheny are sufficient to prevent an extinguishment, judgment must be entered for defendant. Those payments did not, in our opinion, have that effect. They were not made to plaintiffs nor their agent, nor were they intended to inure to their benefit, and, under the circumstances, we think, did not by operation of law inure to their benefit. If the amounts paid to the Orphan Asylum by the owners of the land are to be treated as "payments" of the charge, then there is nothing due plaintiffs. We are unable to see how the "payments" to others than plaintiffs can operate to prevent an extinguishment of the rent and not be treated as a settlement of the debt. Neither can they be treated as acknowledgments for the plaintiffs' benefit. An acknowlegment, to take a personal action out of the statute, must be made to a party in interest or his agent or at least be intended to inure to his benefit. Such was not the case here. While this case is not in all respects analogcus to the personal actions referred to, the principle is the same.

And now, June 25, 1907, rule absolute, and it is ordered that judgment be entered for defendants, non obstante veredico.

For plaintiff, F. P. Sproul.

the state of New Jersey, having offices in Allegheny county, for a dividend duly declared by that company, which the company refuses to pay to the plaintiff. The affidavit of defense admits all the statements of the affidavit of claim, and sets up that the plaintiff and two other stockholders of the company entered into an agreement with one another for the benefit of the company, by which each of said persons agreed that they would allow their dividends to remain in the company to strengthen its credit and to increase its capital, and that the dividends should be credited upon additional stock to be taken for each of the parties, and that these three persons, including the plaintiff, at that time owned a controlling interest in the stock of the company, their holdings amounting to threefourths of the capital stock, and that they were the active officers and managers of the company; that these three stockholders had jointly guaranteed certain results to purchasers of stock of the company, and agreed to buy back their stock at certain rates within two years from December 30, 1905; a copy of which agreement is annexed to the affidavit of defense; and that the agreement not to take out the dividends from the company but to leave the same in its treasury

(Common Pleas No. 2, Allegheny Co.)

tween these three persons as a part of their joint contract with the persons to whom stock was sold, and in support thereof. Plaintiff admits that the mutual promises

STAMPING CO.

the agreement, but claims that as the company is not a party to the agreement it can

in additional stock.

In an action by a stockholder o recover a dividend, an affidavit of defense alleging an agree ment on part of plaintiff and others to allow their dividends to accumulate for benefit of the company and take additional stock therefor, is sufficient.

No. 512 April Term, 1907. Sur rule for judgment for want of sufficient affidavit of defense.

Opinion by SHAFER, J. Filed April 27,

1907.

being. made between the parties for the benfit of the company, we have no doubt that the company is entitled to take advant age of it, either by bringing an action thereon if necessary, or by setting it up as a defense.

The rule is therefore discharged.
For plaintiff, Castle & Jarvis.
For defendant, W. J. Brennen.

Orphans' Court,

ALLEGHENY COUNTY.

In re Estate of MARY TEGETOFF Deceased.

Collateral inheritance tax-Bastard.

A legacy to a bastard grandson is not liable for collateral inheritance tax.

No. 20 September Term, 1907.

HAWKINS, P. J.

STATEMENT.

The question involved in this case is

Court of Common Pleas,

FAYETTE COUNTY.

GREENSBORO GAS CO. v. THE HOME OIL & GAS CO.

The facts are these:

Mary Tegetoff died in 1905, leaving a will in which she gave a legacy of $1,000 to her "grandson," John Tegetoff, natural son of her daughter Katie. The commonwealth claims that this legacy is liable to collateral inheritance tax because the legatee was not "born in lawful wedlock" under the act of 1887; to which it is objected that under the act of 1901, as amended by the act of 1903, he is entitled to exemption.

OPINION. Filed September 24, 1907. The commonwealth's claim must be rejected. While it is true that the act of 1887 restricted exemption from the tax to children born in lawful wedlock, the acts of 1901 and 1903 legitimated bastards and gave them the same rights and privileges as those born in lawful wedlock so far as the mother and her heirs are concerned and the "privilege" of exemption from this tax which belongs to children born in lawful wedlock in such case necessarily belongs to them: Killam v. Killam, 39 Pa. 120. It is suggested that the liability of adopted children for the tax furnishes an analogy which this court must follow; but the ground upon which that liability was rested was that they had no claim of blood, while here the grandson is so in fact, and the policy of the law is to encourage the recognition of such natural right: Com. v. Gilkeson, 18 Superior Ct. 516.

For accountant, F. S. Bennett.

For commonwealth, Wm. M. Benham.

directors or stockholders, will not be construed as a ratification of an illegal contract not binding upon the corporation, where such acts have never been brought to the attention of either the stockholders or the directors.

No. 498, in equity. Bill for preliminary injunction.

Opinion by UMBEL, J. Filed July 30, 1907.

From the testimony and offers submitted we make the following:

FINDINGS OF FACT.

1. The two gas companies in interest in this case are corporations created, existing and operating under and by virtue of the laws of the commonwealth of Pennsylvania for the purpose of producing and handling natural gas commercially, and it is not questioned but that for such purpose they are both vested with the right to do and perform all legal acts necessarily incident thereto.

2. The plaintiff has been operating for a number of years producing natural gas and marketing it for light and fuel over an extended territory including portions of Fayette and other counties in the western part of Pennsylvania. The operations of the defendant company are of recent date-charter granted April 27, 1906-and have been limited to leasing territory drilling and testing for oil and natural gas, except as hereinafter set forth regarding the marketing of the natural gas produced.

Among the farms leased by the defendant company on which wells are sunk were the John Black and J. C. Huhn farms in Nicholson township, Fayette county, Pa., on

both of which "gas was struck," and a flow secured of sufficient quantity to be considered of commercial value and soon thereafter negotiations were opened with the plaintiff and at least one other operating natural gas company with a view of making sale of the natural gas produced from the Black and Huhn wells

3. After some brief preliminaries by telephone and otherwise between employes or representatives of the respective companies a formal meeting was arranged and held at Smithfield, Fayette county, Pa., the place of the principal offices of the defendant company on October 13, 1906, attended by the vice-president and right of way man of the plaintiff, by a representative of the Fayette County Gas Company, and by several members of the board of directors of the defendant company. Minutes of which meeting are regularly entered in the minute book of the defendant company.

At this meeting the plaintiff through its vice-president submitted a proposition agreeing, inter alia, to purchase and "take all the gas produced by these two wells delivered through meter at the well or wells at line pressure of Greensboro Gas Company for the consideration of four (4) cents per thousand cubic feet" (Plaintiff's Exhibit "A"). A proposition was also submitted by the Fayette County Gas Company, offering three (3) cents per thousand cubic feet. After discussion of the matter, notwithstanding there was opposition from some of the members of the board of directors of the defendant company, a majority of those present seemed to favor accepting the proposition of the plaintiff and its written proposition is endorsed accordingly as follows, viz.: "Excepted October 13, 1906, Home Oil and Gas Company, O. J. Stewart, president;" and we find noted in the minutes of the meeting as follows, viz.:

"The directors after hearing the proposition of both companies thought the best thing to do was to appoint a committee consisting of Wm. W. Parshall, H. R. Sackett, and E. H. Reppert to make an agreement with the Greensboro company and report to a future meeting."

After some correspondence and a meeting or two between representatives of the plaintiff and members of the proposed committee

the contract of October 29, 1906 (Plaintiff's Exhibit "D") was prepared and signed by the proper officers of the two companies, in pursuance of which the plaintiff built a connecting pipe line, placed a meter and turned the gas from the Black and Huhn wells into its main on or about November 2, 1906, which connection was maintained and the gas from the said wells taken without interruption until on or about December 15, 1906.

At the time of the signing of the paper dated October 29, 1906, there was discussion regarding the probable production of the said twe wells and the impression seems to have prevailed that it would likely be in the neighborhood of at least 1,000,000 cubic feet per day, and statements of the vicepresident of the plaintiff company were at least partially responsible for such impression, and but little seems to have happened to disturb such belief until receipt of plaintiff company's check about December 13, 1906 (Plaintiff's Exhibit "L") for $190.71 in payment for 4,767,783 cubic feet of gas used during November, 1906 (Plaintiff's Exhibit "K.") Whereupon the check was returned forthwith to the plaintiff company by the secretary of the defendant company, at the same time advising, under date of December 13, 1906, that the defendant company did not recognize as legal the contract of October 29, 1906, and declining to do further business with the plaintiff until a legal contract should be made (Plaintiff's Exhibit "M.") Replying to which the plaintiff under date of December 19, 1906, says, inter alia, "We are greatly surprised at the position you take. The contract we have with you is most assuredly a legal contract, and we shall insist upon our rights under it. The contract was made after full discussion of the very terms which you seem to object to. It was duly executed under the seal of your company, by your president and secretary, who undoubtedly had authority to execute the same. After being executed your company acted under the same circumstances which would amount to a ratification if there was no prior authority" (Plaintiff's Exhibit "G").

Between December 15 and 20, 1906, the gas was turned off several times by the de

fendant company or at its instance and prevented from flowing through the said meter and into the mains of the plaintiff and was as often turned on by or at the instance of the plaintiff, until on the last named date, Jesse Stewart and Alcymus Stum, the individual defendants, disconnected the line from the said wells by taking out and removing a joint of pipe, which was restored and the gas again turned on and the plaintiff filed its bill in this case averring practically as herein set forth, praying for an injunction to restrain "the defendant company from selling or in any manner disposing of the gas from the Black and Huhn wells or any interest in said gas to any other person or persons other than the plaintiff or from in any manner encumbering the same;" and also to restrain the defendants from interfering with the plaintiff in obtaining the gas from said wells and from interfering or tampering with the connections and appliances used for the purpose of obtaining the same. Preliminary injunction was granted accordingly and it is now before us on motion to dissolve.

CONCLUSIONS OF LAW.

There are only two important questions for determination in this case, viz.:

First. Was the meeting of the board of directors of the defendant company held October 13, 1906, a legal meeting attended by a quorum, and would the defendant company be bound by action taken at such meeting?

Second. If a quorum were not present at the meeting of October 13, 1906, did the defendant company by act, acquiescence, or otherwise ratify what was done or attempted to be done by the directors who were present at that meeting?

I.

Section 2 of the by-laws of the defendant company provides as follows, viz.:

"The directors of this company shall manage the business of the company. Eight directors properly convened shall constitute a quorum. No motion, resolution nor agreement, nor bills paid shall be binding on this company until approved by a majority vote of the board of directors in a meeting for the transaction of business and the vote recorded in the minutes of said meeting."

The minutes of the meeting of October 13, 1906, name but seven directors of the defendant company as having been present, which would not constitute a quorum; and under the law and the aforesaid by-law of the defendant company any matters requiring action of the board of directors acted upon by them, would not be binding on the defendant company.

It is insisted on the part of the plaintiff that in consequence of the application for a charter of the defendant company setting forth that Daniel P. Morgan was one of its directors and the aforesaid by-laws providing that the secretary must be a director, and the minutes of the said meeting being signed by him as secretary, we are warranted in presuming that he was a director at that time and that he was present at that meeting; but against this is the plain statement in the minutes that he was not present, naming a secretary pro tem, who doubtless furnished Mr. Morgan with the data from which he wrote up the minutes.

An examination of the minutes of other meetings of the board of directors of the defendant company develops the same condition, viz.: that while he was not in attendance at the meeting, he signs the minutes as secretary of the company; so instead of presuming that he was present on October 13, 1906, we are convinced and find that he was absent on the occasion of such meeting and it is therefore of no consequence, so far as the question in hand is concerned, whether he is a member of the board of directors or not.

It is further insisted on the part of the plaintiff that the testimony of J. C. Huhn, a director of the defendant company, warrants the conclusion that he was present at the meeting, October 13, 1906, although his name does not appear in the minutes as having been in attendance. The answer of the witness chiefly relied on by the plaintiff to establish this contention was not responsive to the question asked, and gave no date, but only said he was present at a meeting in the hall of Smithfield before the gas was sold, when Mr. Parshall and Mr. Sackett were appointed to hunt a buyer for their gas, and that he knew no quorum was present.

If Mr. Parshall and Mr. Sackett were ever