Commonwealth for Use of Brown v. Crow
| Decision Date | 26 November 1928 |
| Docket Number | 138 |
| Citation | 144 A. 135,294 Pa. 286 |
| Parties | Commonwealth, to use, Appellant, v. Crow et al |
| Court | Pennsylvania Supreme Court |
Argued September 28, 1928
Appeal, No. 138, March T., 1928, by plaintiff, from judgment of C.P. Allegheny Co., July T., 1926, No. 2021, on verdict for defendant, in case of Commonwealth, to use of Wm. M Brown, v. Wilbur J. Crow et al. Affirmed.
Assumpsit on bond given to dissolve writ of estrepement. Before EVANS P.J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for defendant. Plaintiff appealed.
Errors assigned were various rulings and instructions, quoting record.
The judgment of the court below is affirmed.
Francis R. Harbison, for appellant. -- The filing of the bond creates a new relation, that is, a contractual instead of a tortious relation, and the remedy consequently changes with the relation leaving defendant without the right to reduce the claim for value of the coal taken as in an action for mesne profits where the sole question is the damages suffered which are subject to reduction by proof of the value of permanent improvements made bona fides: Irvine v. Barrett, 2 Grant 73; Brown v. O'Brien, 3 Clark 93; Byrne v. Boyle, 37 Pa. 261.
The court erred in admitting defendant's testimony to prove the value of alleged permanent improvements made by Crow on the premises and in submitting their value to the jury as a set-off against the claim on the bond: Gleeson's Est., 192 Pa. 279; Morrison v. Robinson, 31 Pa. 456; Com. v. Gould, 48 Pa.Super. 528; Sennett v. Johnson, 9 Pa. 335; Jenkins v. Coal Co., 205 Pa. 166.
James A. Nugent, with him Joseph F. Mayhugh, for appellees. -- In equitable ejectment and in equitable defenses set-up at law to legal titles, the same rule and measure of justice is to be applied, whether the proceeding be at law or in equity, and the court is governed by the same rules as a court of chancery: Sower v. Weaver, 78 Pa. 443; Riel v. Gannon, 161 Pa. 289; Deitzler v. Michler, 37 Pa. 82.
A claim for mesne profits, while a legal action, is susceptible to an equitable defense: Ewalt v. Gray, 6 Watts, 427; Heckart v. Zerbe, 6 Watts 260; Zimmerman v. Eshbach, 15 Pa. 417; Walker v. Humbert, 55 Pa. 407; Kille v. Ege, 82 Pa. 102, 112; Ege v. Kille, 84 Pa. 333; Putnam v. Tyler, 117 Pa. 570; Parks v. Clay Co., 60 Pa.Super. 567.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Defendant agreed to buy from use-plaintiff, the appellant here, a tract of land, paid part of the purchase price therefor, entered into immediate possession of it, erected a building and made a number of other permanent improvements on it, and began mining coal from an open mine on the property. It appearing that the Freeport vein of coal, which was supposed to run through the tract, had been previously conveyed to a third party, defendant claimed that a deduction should be made from the balance of the purchase price. Negotiations for a settlement having failed, appellant began an action of ejectment to compel defendant to comply with his agreement, and a few weeks later caused a writ of estrepement to be issued. This writ was dissolved upon defendant giving bond to the Commonwealth, conditioned to indemnify appellant "against any damage or loss by the further working of said [open] mine . . . or the further committing of any waste or strip in the said lands and premises."
By notice duly given, appellant claimed mesne profits up to the time of the trial of the ejectment suit, and defendant pleaded that he had, in good faith, placed permanent improvements on the property in excess of the amount of those profits. On the trial of that case, defendant was not able to show that there was any Freeport coal underlying the tract, and the court thereupon directed the jury to render a conditional verdict in appellant's favor, to be released upon payment of the balance of the purchase price, with interest, within thirty days after final judgment. The question of appellant's right to mesne profits was not taken up, but was expressly reserved for later consideration, and this fact was proved by appellant himself on the trial of the present case.
Within the thirty days after final judgment in the ejectment suit, defendant surrendered possession of the property to appellant, and the latter thereupon brought the present action on the bond given to dissolve the writ of estrepement. Defendant pleaded that the permanent improvements upon the property which he had in good faith made, and the benefit of which appellant received when he retook possession, exceeded the amount claimed. Among these improvements was a building, destroyed by fire about the time appellant recovered possession, as a result of which he received from the fire insurance company a sum nearly equal to the amount of the bond in suit. Defendant recovered a verdict and judgment, and appellant now assigns as error the overruling of his objection to the admission of the evidence referred to, and the refusal of his point for binding instructions and of his motion for judgment non obstante veredicto.
If appellant's claim had been the ordinary one for mesne profits, admittedly the defense interposed would have been proper. The reason this is so where, as here, defendant entered into possession and in good faith made the improvements for which the set-off is claimed, is that it would be inequitable to allow appellant to have both the improvements and the mesne profits, if...
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