Mountville Borough , 31 Pa. Super. 18 ( 1906 )

Opinion by

Beaver, J.,

Who is a freeholder within the meaning of the second section of the Act of April 1, 1834, P. L. 163, which relates to the incorporation of boroughs ? If the answer to this question made by the court below is correct, it practically disposes of the case.

A distinction is made between an estate of freehold in deed and such an estate in law : “ Freehold in deed is the real possession of land or tenements in fee, fee-tail or for life. Freehold in law is the right to such tenements before entry: ” 1 Bouv. L. Dict., Rawle’s edition, 693.

It was absolutely necessary, in order that the court could acquire jurisdiction in accordance with the provisions of law, that the application for the incorporation of the borough should be in writing and signed by a majority of the freeholders residing within the limits of the proposed borough.

The application contained the names of sixty-nine persons who were alleged to be freeholders. Six of these signers recanted and asked to have their names withdrawn from the application before it was laid before the court. Assuming, for the sake of the argument, that they had a right to do so and deducting them from the total number of signérs, there remaimed sixty-three freeholders of the proposed borough asking for its incorporation. The largest number of freeholders alleged to reside within the proposed borough limits was 135'. Eleven of these, as found by the court, had vested remainders in real estate located within the limits of the proposed borough, subject to a life estate, owned and enjoyed by some other person. Deducting the latter from the total number of alleged freeholders left 124, of which sixty-three are a clear majority. If, on the other hand, the remainder-men were freeholders within the contemplation of the act of 1834, supra, they would not constitute a majority, and it would require the addition of the names of those who desired to withdraw from the application to make a majority of the whole number.

In Clippinger v. Creps, 2 Watts, 45, in which one of the questions involved was, whether or not the owner of a freehold estate, encumbered beyond its value, was entitled to stay of execution under the provisions of the 14th section of the act of March 20, 1810, without entering bail, Mr. Justice Rogers says: “ At common law he who has the actual possession of land for life, or a greater estate, is a freeholder.” It is evidently in this sense that the term is used in the act under consideration. He who holds, and not he who will hold, the estate is the freeholder. This must be so; otherwise if the present holder of the estate were opposed to the incorporation of a borough, and the remainder-man who is to hold it in the future were in favor of it, the latter might impose upon the former his proportion of the costs of incorporation and the increased taxes and other expenses growing out of the same, not only without his consent but in spite of his opposition. Surely the legislature did not intend such a result. It is scarcely necessary to discuss this proposition, however, as it appears to be abundantly supported by the authorities cited by .the court below in its opinion dismissing the exceptions to the petition for incorporation. Deducting from the whole number of petitioners, therefore, the eleven names of the persons who have an estate in expectancy but not in actual possession, we have remaining 124 actual freeholders. Of this number the sixtjrthree petitioners who “ stand pat ” constitute a clear majority. The court, therefore, had jurisdiction. This preliminary question being determined, little remains to be said, and we need not consider whether the six petitioners who desired to withdraw their names from the application had a legal right to do so or not.

The requirements of the petition for incorporation are purely statutory. The petition follows the requirements of the act in stating that the petitioners “ are a majority of the freeholders residing within the limits of the ” territory to be incorporated. There is nothing in the act which requires the application to set forth the number of. freeholders residing within the proposed territory, nor is there any provision that it is to be verified by affidavit. The requirements of the act having been fully complied with, we see no merit in the third assignment of error.

The fourth assignment is merely a general one relating to the decree, which we think was entirely justified under the provisions of the act of 1834, supra, and in the exercise of the sound discretion of the court.

The decree of the court below is, therefore, affirmed and the appeal dismissed at the costs of the appellants.