Brackin v. Welton Engineering Co.

• Decision Date: 13 April 1925
• Docket Number: 17
• Citation: 283 Pa. 91,128 A. 818
• Parties: Brackin et al. v. Welton Engineering Co., Appellant
• Court: Pennsylvania Supreme Court

128 A. 818

283 Pa. 91

Brackin et al. v. Welton Engineering Co., Appellant

No. 17

Supreme Court of Pennsylvania

April 13, 1925

Argued March 16, 1925

Appeal, No. 17, March T., 1925, by defendant, from decree of C.P. Mercer Co., Jan. T., 1924, No. 2, on bill in equity, in case of James C. Brackin et al. v. P.E. Welton Engineering Co. Reversed.

Bill for injunction to restrain sale of real estate on execution. Before McLAUGHRY, P.J.

The opinion of the Supreme Court states the facts.

Decree for plaintiffs. Defendant appealed.

Error assigned was, inter alia, decree, quoting record.

The decree of the court below is reversed and the bill in equity is dismissed at the costs of appellees.

Geo. H Rowley, of Templeton, Whiteman, Rowley & Gilkey, for appellant. -- There being evidence of a waiver of the provision of the contract making time of the essence thereof all expenditures made by the purchaser of the lands in question must be considered in determining the rights of the respective parties to the agreement.

W. C. Pettit, with him Guy Thorne, for appellee. -- It was the plain duty of the court to stay the execution and prevent a sale which could do nothing but place a cloud upon the title and thereby cause great hardship and irreparable injury to plaintiffs: Gay v. Chambers, 37 Pa.Super. 41; Barrell v. Adams, 26 Pa.Super. 641; Anton v. Secrist, 54 Pa.Super. 337, 346; Natalie Coal Co. v. Ryon, 188 Pa. 138; Kreamer v. Fleming, 200 Pa. 414; American Trust Co. v. Kaufman, 276 Pa. 35.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SIMPSON:

Defendant appeals from a final decree in equity, enjoining it from proceeding further with an execution against certain land in which it avers its judgment debtor, the Shenango Tire and Rubber Company, had an interest.

Plaintiffs, being the owners of a large tract of land, entered into a written agreement with the Rubber Company, by which they agreed to deliver to it possession of part of the property, to be followed by a deed, if the company did "all the things agreed to be performed by it on or before April 1, 1921," in consideration whereof, it in turn agreed to "expend [on the land to be conveyed] for buildings and other improvements, . . . on or before July 1, 1920, $10,000; on or before October 1, 1920, $15,000 more; on or before January 1, 1921, $12,500 more; on or before April 1, 1921, $37,500 more . . . on checks or vouchers countersigned by Guy Thorne, Esq., [whose] certificates as to said moneys having been paid out, or not having been paid out, for the purposes above specified, shall be final and conclusive on all parties hereto." The agreement further provided that "time is of the essence of the agreement and failure of [the Rubber Company] to perform any of the things above specified to be performed by it on or before the dates mentioned, shall render this agreement null and void," in which event, at the option of plaintiffs, an amicable action and judgment in ejectment might be entered, and possession of the land retaken.

The agreement does not appear to have been recorded, but the Rubber Company entered into possession of the property and commenced the erection of the specified "buildings and other improvements." The value of the work done and materials used in making those improvements is not shown, but, admittedly, the Rubber Company actually paid therefor at least $50,186.41, and defendant recovered a judgment for $7,230.21, for additional work done and materials furnished by the Akron Engineering Company, whose assets were taken over and liabilities assumed by defendant. The latter also claims that more than the $75,000 specified in the agreement was expended "for buildings and other improvements," but, if so, the evidence in this case does not prove it. According to plaintiff's testimony, the Rubber Company did not make the expenditures called for in the agreement, by the dates set forth in any of the respective installments: nevertheless, though knowing the work was still going on, as in fact it was for some seventeen months after April 1, 1921, and that the Akron Engineering Company, under its contract with the Rubber Company, was, during all that time, improving the property, plaintiff did not declare the "agreement null and void," nor attempt to retake possession of the land and improvements.

After the Rubber Company ceased to proceed with the work, defendant sued it and recovered the judgment for $7,230.21 above referred to, issued a fi. fa. thereon, had the property levied on and condemned, and followed this with a vend. ex. to have it sold. Not until after that occurred, did plaintiffs act. They then obtained from Mr. Thorne the character of certificate specified in the agreement; without notice to any party interested, they caused an amicable action and judgment in ejectment to be entered against the Rubber Company, and, by virtue of a writ of habere facias possessionem, obtained possession of the property. They then filed the bill in equity in this case, defendant answered, and the case was tried, resulting, as stated, in a decree perpetually enjoining it from selling the property under its judgment.

The basis of the court's decision is that although a court of equity will not ordinarily stay an execution against real estate, at the behest of a third party, who claims to be the real owner of the property, but will leave him to contest, in other and later proceedings, the title obtained by the purchaser at the sheriff's sale; yet "the courts have been growing more liberal in this matter, and recognize that it is not right to compel parties to undergo the expense and delay of an action of ejectment, when it is clear that there is no question as to the title." Starting with the admission above made, in which appellees concur, let us see whether or not there has been a weakening of the rule, -- premising our consideration with the statement that this record discloses nothing to justify a belief that defendant is using the process of the law to harass or annoy plaintiffs, or that it has any other motive than a desire to realize the amount of its claim.

In Hunter's App., 40 Pa. 194, a husband's creditor attempted to sell the property of a wife, admittedly obtained by her under the will of her mother, perhaps on the theory that the old law, which gave her property to him, was not altogether abrogated by the Acts of April 11, 1848, P.L. 536, and April 22, 1850, P.L. 549. The court below refused to enjoin the sale, but we reversed because she had a clear title, devised to her by her mother, which could not be sold for her husband's debts, since the above statutes expressly forbade it. We were careful to say, however (pages 196-7): "It may and ought to be conceded, that it has been the constant practice in this Commonwealth, for a creditor to seize in execution any property which he may believe his debtor has an interest in, and sell it in satisfaction of his debt. It is an axiom of our law, that, in some form or other, all property of a debtor not expressly exempt, is liable to be taken in satisfaction of his debts. Upon this principle, wherever an interest is alleged, the execution is allowed to go, and the question of interest is afterwards tried on the title obtained at the sale. . . . True, the practice does often put the real owner to the trouble and expense of defending against a title so obtained, and of showing that the debtor had no interest whatever in the property sold. The cloud upon his title is often doubtless an injury; but notwithstanding this, the doctrine that the creditor has a right to seize and sell his debtor's interest in property, whatever it may be, has been so firmly fixed, that the courts have not been armed with power to interfere in limine. . . . With this practice it is not intended to interfere in this decision."

In Winch's App., 61 Pa. 424, a sheriff's sale was had but title had not yet been taken, and the court below restrained further proceedings by the judgment creditor, who was also purchaser at the sale. We reversed, and said Hunter's App., supra, was so decided, because "there the exclusive ownership of Mrs. Hunter in her own right was not denied by plea,...