Freeman v. Lafferty

Decision Date12 October 1903
Docket Number319
Citation56 A. 230,207 Pa. 32
PartiesFreeman, Appellant, v. Lafferty
CourtPennsylvania Supreme Court

Argued January 29, 1903

Appeal, No. 319, Jan. T., 1902, by plaintiff, from decree of C.P. No. 3, Phila. Co., Dec. T., 1896, No. 567, sustaining demurrer to bill in equity, in case of John S. Freeman v Marguerite Lafferty, Assignee of Marie Mellerio, Samuel Chubb and George A. Aldrich. Affirmed.

Bill in equity to cancel a judgment.

The facts are stated in the opinion of the Supreme Court.

Error assigned was the decree of the court.

The decree of the court below is affirmed.

John Houston Merrill, with him S. Morris Waln, for appellant. -- It is submitted that the error of the court consisted in failing to distinguish between agreements raising implied trusts, all of which involve the assertion of an interest in land, and agreements limiting the operation and effect of judgments which do not depend for their validity upon any equitable rights of the judgment debtor in the land Hoeveler v. Mugele, 66 Pa. 348; Lane v. Smith, 103 Pa. 415; Myerstown Bank v. Roessler, 186 Pa. 431; Schweyer v. Walbert, 190 Pa. 334; Abbott's Est., 198 Pa. 493.

The learned court below erred, also, first, in assuming that an implied trust in land could arise out of a parol agreement made after title taken; and second, in failing to observe that the relief prayed for by the plaintiff's bill in equity, if granted, would have been entirely inadequate to establish such an implied trust: Kraft v. Smith, 117 Pa. 183.

Thomas D. McGlathery, for appellees. -- It is admitted that this was a parol agreement, and being in relation to land, is clearly within the statute of frauds. If the appellant sustained any damages by reason of his agreement with the attorney of Lafferty, he has his remedy by action against the attorney for damages: Fox v. Heffner, 1 W. & S. 372; Jackman v. Ringland, 4 W. & S. 149; Kellum v. Smith, 33 Pa. 158; Barnet v. Dougherty, 32 Pa. 371; Phillips v. Hull, 101 Pa. 567; Shaffner v. Shaffner, 145 Pa. 163.

The appellees claim that the appellant had, prior to the filing of his bill by applying to have the judgment opened, selected his remedy, and for that reason his bill should be dismissed: Haneman v. Pile, 161 Pa. 599; Ahl v. Goodhart, 161 Pa. 455; Findlay v. Keim, 62 Pa. 112; Penna. Co. v. Phila. Nat. Bank, 14 Pa. C.C. Rep. 193; Warner v. Hopkins, 111 Pa. 328; Wilson v. Buchanan, 170 Pa. 14; Swanger v. Snyder, 50 Pa. 218; Gemmill v. Butler, 4 Pa. 232.

Before MITCHELL, DEAN, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE DEAN:

On December 26, 1886, the plaintiff, John S. Freeman, bought a property in Philadelphia for $4,000 and borrowed on the same day from Marie Mellerio $3,000, for which he gave her his bond secured by mortgage upon the property purchased; on January 26, 1887, he sold and conveyed the property to Kate A. Gardner for $1,500 subject to the mortgage; soon after he notified the counsel of Marie Mellerio, to collect the mortgage when it became due, otherwise he would seek relief from payment of the bond; she took no steps to collect, but in 1896 assigned the mortgage to Marguerite Lafferty, who issued sci. fa. upon it and took judgment October 24, 1896, for $3,287, issued execution and bought the property at sheriff's sale for $50.00; she then entered judgment on the bond but did not at the time have her damages assessed on the judgment.

The plaintiff did not personally attend the sheriff's sale to protect his interests, but admits he knew of the sale and that the property was worth more than the amount of the mortgage; he says that he sent an assistant in his office to represent him, who, when he returned, reported that the property had been so quickly knocked down at the bid of Marguerite Lafferty for $50.00 that he had not time to bid, but that he notified her attorney that he would have the sale set aside because of the improper conduct of the crier; that the attorney for Marguerite Lafferty then agreed with him that if he would not do so she would resell the property at private sale for its actual value and would then release Freeman, the plaintiff, from liability on the bond, but in case the sale would not bring the amount of her investment, $3,500, she would then demand the difference. Plaintiff then made no attempt to have the sale set aside. That afterwards, Marguerite Lafferty assigned the judgment to Samuel Chubb in pursuance of an agreement and combination between Chubb, Lafferty and Aldrich, the three defendants, to wrong plaintiff, as follows: Plaintiff had, in another transaction, obtained a judgment against Aldrich for $1,250, had taken an exemplification of the record to New Jersey and was about to collect it; the three defendants then agreed between themselves that Chubb should buy from Lafferty for a nominal consideration, to be paid by Aldrich, the judgment which Lafferty held against plaintiff on the mortgage bond, but Aldrich was to be the real owner of the judgment and by using it against plaintiff could deter him from proceeding on the judgment against him, Aldrich, in New Jersey. In pursuance of this arrangement the damages on the judgment which had been entered against Freeman by Lafferty in December, 1896, were in August, 1901, assessed at $4,050.50, which judgment was marked by the attorney of record to the use of Marguerite Lafferty and then to the use of Chubb, who issued attachment upon it against Aldrich, thereby seeking to defeat plaintiff's judgment against Aldrich. The plaintiff then applied to the court to have the judgment of Mellerio to the use of Lafferty then to the use of Chubb against him opened; while this proceeding was pending he, on January 11, 1902, filed this bill, covering the same facts as those we have narrated, and as set out in his petition to open the judgment. The prayers for relief are:

1. That the judgment on the bond against Freeman which the mortgage was given to secure be declared null and void.

2. That defendants be enjoined from proceeding to collect it, and that they be required to satisfy it.

3. Defendants filed demurrer based on nine specific grounds. We cannot tell whether the learned judge of the court below sustained but one or all of them; the record says "Demurrer sustained." We know he must have sustained at least one, otherwise he could not have...

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5 cases
  • Roush v. Herbick
    • United States
    • Pennsylvania Supreme Court
    • December 31, 1920
    ... ... Rankin, for appellant, cited: Barry v. Hill, 166 Pa ... 344; Watson v. Watson, 198 Pa. 234; McCloskey v ... McCloskey, 205 Pa. 491; Freeman v. Lafferty, ... 207 Pa. 32; Hostetter's Petition, 57 Pa.Super. 601; ... Horvath v. Rull, 27 Pa. Dist. R. 438; Reisinger v ... Coal Co., 262 Pa ... ...
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  • Walsh v. New Tioga Leader Building and Loan Association
    • United States
    • Pennsylvania Commonwealth Court
    • February 15, 1932
    ...may be discontinued: Findlay & Hay v. Keim, supra . See, also, Penn Bank v. Hopkins, 111 Pa. 328. The rule is well stated in Freeman v. Lafferty, 207 Pa. 32, 37, as follows: " While we are clear that on the the plaintiff can abandon a proceeding at law before final judgment, go to the equit......
  • Meenen v. Negley
    • United States
    • Pennsylvania Superior Court
    • July 12, 1928
    ...should have paid the costs and entered a formal discontinuance of the equity suit before bringing the present action at law: Freeman v. Lafferty, 207 Pa. 32. Before the Practice Act of 1915, P. L. 483, the raised such a defense by plea in abatement: 1 Chitty on Pleading, p. 488. That Act ab......
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