In re Gleeson's Estate

• Decision Date: 19 July 1899
• Docket Number: 34
• Citation: 192 Pa. 279,43 A. 1032
• Parties: Estate of Daniel Gleeson, deceased. Appeal of Cornelius Gleeson
• Court: Pennsylvania Supreme Court

43 A. 1032

192 Pa. 279

Estate of Daniel Gleeson, deceased. Appeal of Cornelius Gleeson

No. 34

Supreme Court of Pennsylvania

July 19, 1899

Argued March 23, 1899

Appeal, No. 34, Jan. T., 1899, by Cornelius Gleeson, from decree of O.C. Phila. Co., July T., 1898, No. 218, dismissing exceptions to adjudication. Affirmed.

Exceptions to adjudication.

The auditing judge, ASHMAN, J., stated the facts to be as follows:

On behalf of Mary K. L. Black, a claim was submitted in the sum of $3,500 upon a bond to prosecute an appeal with effect from a judgment in ejectment in the United States circuit court of October sessions, 1893, in which bond the decedent was a surety. The bond was in $5,000, to Mary K. L. Black, the plaintiff in the original suit, conditioned that the principals therein, who are the defendants below, should prosecute their appeal to effect, and should answer all costs and damages if they should fail to make good their plea. The appeal was afterwards, March 17, 1898, quashed by the United States Supreme Court. The plaintiff claimed that the writ of error being a supersedeas, she was kept out of possession of her property from May 12, 1896, to March 17, 1898, and she asked for the damages which had accrued from the loss of rent during that interval. The premises owned by the claimant, and which were the subject of the action, comprised some 912 acres which lay partly in Philadelphia and partly in Delaware counties, and they were known as Black's Island. Three questions were presented: 1. What amount of damage, if any had been sustained? 2. Whether loss of rent arising from the detention of the property was among the damages covered by the bond? 3. Whether the appeal contemplated by the bond had been in fact taken?

The testimony respecting the rental value during the period of eviction, given by the expert witnesses, differed. One of them fixed it at $2.75 per acre for the whole tract, an aggregate of $2,508 yearly, and another at $1.75 per acre, or a total of $1,596 yearly. These witnesses appeared for the claimant. Frederick Black, one of the defendants, who already occupied a part of the land, accepted, in 1894, a lease of the entire tract from the plaintiff at the yearly rent of $2,000, payable on condition that the plaintiff should insure him possession. He never paid the rent, and continued in his original holding only by an arrangement which he made with the other defendants. After the appeal was determined, the land was subdivided, part being occupied by Frederick Black and part by the remaining children. The former rented 218 acres at $2.00 per acre, and 143 acres at $1.50 per acre, a total rent of $650.50. The others rented from claimant 200 acres at $2.00 per acre, and 78 acres at $1.00 per acre making $478 yearly. The remaining 273 acres do not seem to have been rented at all, and were worth to a tenant, according to the testimony of one of the children, $1.00 per acre. Accepting as the standard of value the estimate which was adopted by both parties, by the claimant as lessor when she executed the leases, and by the children as lessees when they agreed to pay the rent, the total rent for the tract would be $1,401.50 per annum, or $2,452.59 for the time now claimed for. The improvements which it was alleged were made by the tenants cannot be set off against an award for the claimant for the reason that some of them were necessary repairs which it was the duty of the lessees to provide, and others, although apparently permanent, were not annexed to the freehold. Among the latter was a dwelling house, which was erected on piles expressly to facilitate its renewal. The auditing judge finds the damages amount to $2,452.59.

Exceptions to the adjudication were dismissed in an opinion by PENROSE, J. See 8 Dist. Rep. 46.

Errors assigned were in dismissing exceptions to adjudication.

The decree of the court below is affirmed and appeal dismissed at the cost of the appellant.

John T. Greene, for appellant. -- The judgment in ejectment at the most is merely conclusive that the defendants were in possession at the time of the service of the writ, and even that, in some instances, can be rebutted: Miller v. Henry, 84 Pa. 33; Bronson v. Lane, 91 Pa. 153; Sopp v. Winpenny, 68 Pa. 78; Kuhns v. Bowman, 91 Pa. 504.

A release by the claimants of property belonging to the principals, and in the hands of the claimants, is a discharge of the surety pro tanto: Schock v. Miller, 10 Pa. 401.

The construction placed on the nature of the property by the plaintiff and defendants in the lease after the mandate came back from the Supreme Court cannot alter the nature of it, in so far as the surety is concerned. That merely made it, at most, a release of $1,300 of the principal's property and the surety is thereby discharged pro tanto: Steele v. Spruance, 22 Pa. 256; Wilkinson v. Pearson, 23 Pa. 117; Walker v. Quigg, 6 Watts, 87.

The claimant cannot recover against the surety on this bond, because the claim is for use and occupation of the premises pending the appeal; and under the decisions, such cannot be recovered on the bond: Johnson v. Hessel, 134 Pa. 315; Roberts v. Cooper, 19 How. 373; Kountze v. Omaha Hotel Co., 107 U.S. 378; Burgess v. Doble, 21 N.E. 438.

N. Dubois Miller, with him Biddle & Ward, for appellee. -- The bond was valid and binding upon all of the parties to it, and upon its breach can be sued upon: Keyser v. Keen, 17 Pa. 327; Grim v. School Directors of Jackson Twp., 51 Pa. 219; Simpson v. Bovard, 74 Pa. 351; Whitaker v. Richards, 134 Pa. 191.

The very object of the bond was to cover the loss of rents pending the appeal, and under the law damages therefor can be recovered: Roberts v. Cooper, 19 How. 373; Kountze v. Omaha Hotel Co., 107 U.S. 378; Shunick v. Thompson, 25 Ill.App. 620; Green v. Sternberg, 15 Mo.App. 32.

The allowance should be made for improvements, or for any other cause: Steele v. Spruance, 22 Pa. 256; Wilkinson v. Pearson, 23 Pa. 117; Morrison v. Robinson, 31 Pa. 456; Ege v. Kille, 84 Pa. 333.

Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and DEAN, JJ.

OPINION

MR. JUSTICE GREEN:

This court has so frequently decided that the omission of one of several obligors in a bond, to join in the execution of the bond, although named as an obligor in the body of the instrument, is no defense to the obligors who did sign, that the question must be considered as settled. In Keyser v. Keen, 17 Pa. 327, the action was brought against one of six obligors as named in the bond, though five only had signed, and the instrument was a bond of indemnity to indemnify the obligee against loss for having become surety for a deputy sheriff on his bond to the sheriff. The bond contained an admission that the obligee had become surety for the deputy, on the promise of the six to indemnify him against loss by reason of his suretyship. It was claimed for the surety sued that he was not liable because he signed upon the faith that all were to sign, but we said, LOWRIE, J.: "This bond was prepared for six obligors and is executed by only five of them; yet we cannot, therefore, infer that it is incomplete and not binding on those who did execute it. . . . The bond declares that the plaintiff below had become surety for another person, on the promise of the six persons named in it, that they would indemnify him. This is an admission by the five who executed the bond, that they were jointly bound to indemnify the plaintiff; and although they do allege that another person agreed to become bound with them, yet when we find their bond in the hands of the plaintiff it is impossible to imply that it was not intended to bind them to their admitted duty. The refusal of one of the six to join in the bond did not discharge the others from their promise."

This ruling was repeated in Grim v. School Directors, 51 Pa. 219, Simpson's Exr. v. Bovard, 74 Pa. 351, and Whitaker v. Richards, 134 Pa. 191.

There was no evidence in the present case that it was the agreement of the parties that the bond was not to be binding upon any unless it was signed by all, and, as it was duly delivered and found in the proper custody where it belonged as a fully executed instrument, it was an undoubtedly valid instrument as to all who did sign. We have not been referred to a single contrary decision.

The verdict in the ejectment case was rendered on April 26, 1896 and the appeal from the judgment on the verdict was taken on May 14, 1896, and on May 16, 1896, the appeal bond was filed. The appeal was quashed by the Supreme Court of the United States on March 17, 1898, and in the present proceeding on...