German-American Title & Trust Co. v. Shallcross

• Decision Date: 07 March 1892
• Docket Number: 171
• Citation: 23 A. 770,147 Pa. 485
• Parties: German-American Title & Trust Co. v. Shallcross, Appellant
• Court: Pennsylvania Supreme Court

23 A. 770

147 Pa. 485

German-American Title & Trust Co. v. Shallcross, Appellant

No. 171

Supreme Court of Pennsylvania

March 7, 1892

Argued January 15, 1892

Appeal, No. 171, July T., 1891, by complainant, The German-American Title & Trust Company, Committee of Francis Mawhinney, from decree of C.P. No. 4, Phila. Co., Dec. T 1887, No. 829, dismissing bill in equity filed against Ida V Shallcross and Lewis Stover, executors of the last will and testament of Lewis Shallcross, deceased.

Bill in equity to compel the satisfaction of mortgages and judgment and extinguishment of ground rents. The bill averred that the complainant had brought an action of equitable ejectment against the respondent in court of common pleas No. 1, of Philadelphia county, for the recovery of certain real estate on Frankford road and Emerald street, in the city of Philadelphia, which cause was tried in said court on May 19, 1885. That it was in evidence at said trial that complainant, being the owner of said real estate, the same was advertised to be sold by the sheriff of Philadelphia county, on the first Monday of August, 1878, under a certain judgment had against complainant, and that the defendant obtained possession of the said real estate through a corrupt combination between himself and his brother, Amos C. Shallcross, who bought in said real estate at the said sheriff's sale as the attorney and agent of complainant, and afterward to defraud complainant out of his right to said real estate placed the title thereto in the name of the defendant. That at said trial the defendant offered in evidence a statement showing the expenditures made by him on account of said real estate, which he claimed should be repaid by the plaintiff before he should be entitled to possession, said statement containing, inter alia, the following items, to wit, a bond and mortgage for $2,000; also a bond and mortgage for $1,000 given by the plaintiff to the said Lewis Shallcross, also an assignment of ground rent, dated July 3, 1880, from Sarah W. Bacon to defendant of ninety dollars yearly (the principal being $1,500); also an assignment of ground rent of John Rose and wife to the defendant of fifty dollars yearly (the principal being $833.33 1/3); also an assignment of ground rent by Francis Heyl et al. to defendant of ninety dollars per annum (the principal being $1,500); also a judgment of Justice McVAUGH against plaintiff in common pleas No. 2, of March term, 1878, No. 1094, under which said sheriff's sale had taken place, and which had been marked to the use of the defendant on January 7, 1879, the defendant claiming the sum of $300, the amount paid by him for the same. That the trial judge refused the plaintiff's request that the jury be instructed that if they found from the evidence that the defendant was a trustee ex maleficio for the plaintiff, the former was not entitled to reimbursement for the expenditures made by him on account of said real estate, but instructed the jury that if they found in favor of the plaintiff they should give the defendant credit for all the sums mentioned in his statement which they believed the defendant had expended on account of said real estate, and if they found a balance in favor of the defendant they should render a verdict in favor of the plaintiff, conditional on the payment to the defendant of the amount so found by them to be due to him.

That thereupon the defendant submitted to the jury a statement showing the amount of rents received from said real estate during his possession, covering six years and seven months at $1,332 a year, amounting to $8,700, which, after giving credit to the defendant for the amount of said mortgages, ground rents, and judgment, and the other items of said statement with interest on the mortgages, ground rents, and judgment, and other items, left a balance of $1,800 in the favor of the defendant. That the jury thereupon rendered a verdict for plaintiff on his tendering to the defendant the sum of $2,293.02, the jury having taken both statements with them in their deliberations. That judgment was entered upon the verdict, defendant's application for a new trial having been refused.

That the defendant having removed the case to the Supreme Court the judgment was subsequently affirmed, that court holding, in a per curiam opinion, that the defendant was a trustee ex maleficio.

That the plaintiff paid defendant the amount of the conditional verdict with interest, on April 26, 1887, and obtained possession by virtue of a writ of habere facias possessionem on May 2, 1887, since which time he has been in possession. That notwithstanding the payment of the amount of the conditional verdict, the defendant refused to satisfy said mortgages and judgment and extinguish said ground rents, he having brought suit upon one of the said ground rents, which have been assigned to him, and that notwithstanding the payment of said mortgages and judgment in the manner recited, he threatened to proceed upon the same with the view of unjustly enforcing payment against the plaintiff.

The bill prayed for: (1) an injunction restraining the defendant from transferring said mortgages, ground rents, and judgment and from instituting or maintaining any proceedings thereunder; (2) for a decree ordering the defendant to satisfy the mortgages and judgment of record, and execute deeds of extinguishment for said ground rents; (3) for damages; and (4) for such further relief as the equities of the cause may require.

The answer denied that the defendant offered in evidence a statement showing expenditures, which he claimed should be repaid before plaintiff would be entitled to the possession; but that the statement referred to in the bill had been prepared by defendant in the course of negotiations with plaintiff for a settlement; that plaintiff had agreed to the terms proposed by defendant, but was unable to carry out his agreement, and that this settlement was put in evidence as part of that agreement.

The answer then alleged that the ground rents and mortgages were put in evidence merely for the purpose of showing, first, "the liens and charges against the land subject to which it had been sold by the sheriff; secondly, the annual charges in reduction of rents," but that it was argued by plaintiff's counsel, that the plaintiff was entitled to possession subject to the same charges and encumbrances that were upon the property at the time of the sheriff's sale, and that it was inequitable to make him pay in cash now more than he would be obliged to pay if he had taken title from the sheriff, and that the jury so found.

The case was referred to Adolph Eichholz, Esq., as master, who reported that the averments of the bill were substantially correct. His finding in part was as follows:

"The master finds that the facts set forth in the bill are substantially correct.

"It is true, that the defendant in his answer denies the alleged fraud, which formed the basis of the ejectment suit, and his entire testimony and considerable portion of his brother's testimony are devoted to an attempt to substantiate his position upon this point. But this was the main issue in that case and has been finally determined by the verdict of the jury in favor of the plaintiff. Had the jury found the facts to be as alleged by the defendant, their verdict must necessarily have been in his favor. The release marked 'Exhibit A' attached to the answer formed a part of the transactions between the parties that were disposed of by jury in favor of the plaintiff, and is therefore no longer an issue.

"The master is convinced beyond a doubt that the defendant gave in evidence at the trial a statement containing, among other things, the mortgages, ground rents, and judgment in question, and not merely for the purposes stated in his answer, but for the purpose of receiving credit therefor in the amount of the conditional verdict in case the jury should decide the main issue in favor of the plaintiff. Although contradicted by the testimony of Amos C. Shallcross, plaintiff's testimony upon this point is overwhelming. The testimony is equally strong that the plaintiff presented to the jury a statement such as he alleges in his bill.

The master recommended a decree in accordance with the prayer of the bill.

The defendant filed the following exceptions to the master's report:

(1) In finding that the facts as set forth in the bill are substantially correct; (2) that the issue raised by this bill and answer is the same as tried by the jury, whereas this is a different issue upon a different title; (3) that a certain statement was put in evidence before the jury by defendant, when it was put in evidence by the plaintiff; (4) that it was put in evidence for a particular purpose, which purpose was not germane to the issue then tried; (5) that the testimony is overwhelming that the plaintiff put in evidence such a statement as he alleges; (6) that the counsel on both sides had agreed that the ground rents had been extinguished; (7) that the jury must necessarily have passed upon the facts herein involved; (8) in holding that the ground rents had merged; (9) holding that the defendant is estopped by the verdict of the jury; (10) holding that the amount due on the encumbrances was judicially determined by the jury, and that, therefore, the plaintiff is entitled to the relief prayed; (11) in disallowing the defendant's claim for ground rent and interest; (12) in awarding the plaintiff $2,096.95 for mesne profits; (13) in not stating an amount between the parties; (14) in not dismissing the bill.

The exceptions were sustained, ARNOLD, J., filing the following opinion:

"Had the plaintiff filed a bill in equity instead of suing in ejectment in the first...