Johnson's Appeal

• Decision Date: 21 May 1883
• Citation: 103 Pa. 373
• Parties: Johnson's Appeal.
• Court: Pennsylvania Supreme Court

103 Pa. 373

Johnson's Appeal.

Supreme Court of Pennsylvania.

April 18, 1883.

May 21, 1883.

April 18th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

APPEAL of John C. Johnson, trustee for the creditors of George and Caleb H. Malin, from a decree of the Common Pleas of Montgomery county, upon his account as trustee, filed in said court, setting aside the report of the Auditor thereon, for want of jurisdiction: Of July Term 1882, No. 152.

COPYRIGHT MATERIAL OMITTED

G. R. Fox, for appellant, submitted a printed brief.—The only question here arises from the case of Ridgway v. Stewart, 4 W. & S. 383. That was not a mortgage for the benefit of existing creditors, to whom debts were due, but an ordinary mortgage to trustees to secure bonds payable in future. The mortgage in this case was to secure existing debts: Lucas v. S. & E. R. R., 8 Casey 458 and Bittenbender v. S. & E. R. R., 4 Wright 269 are directly applicable.

G. Heide Norris (with him George Junkin), for sundry creditors.—Regarding the instrument in the light of a mortgage pure and simple, the jurisdiction to take cognizance of the distribution should remain certainly in the county where the lands are situate by virtue of the Act of 1705, sec. 6. Purdon 482. It could not have been the intention of the legislature, where lands have been mortgaged and the mortgage contained a trust for creditors, to compel the mortgagee as trustee to foreclose the mortgage and sell the lands in one jurisdiction and file an account and make distribution in another, simply because he did not happen to live in the county where the lands are situate.

The opinion of the court was delivered May 21st 1883 by PAXSON, J.

The court below held that the mortgage in controversy was not an assignment for the benefit of creditors within the meaning of the Act of June 14th 1836 entitled "An Act relating to assignees for the benefit of creditors and other trustees." The court further ruled that it had no jurisdiction to distribute the money realized upon the mortgage from a sale of the mortgaged premises, but that the distribution must be made in Philadelphia where the trustee resides.

If we concede the first proposition to be correct the second follows logically. We have therefore presented the single question whether the mortgage was in effect an assignment under the Act of 1836.

The recent case of Wallace & Krebs v. Wainright & Co., 6 W. N. C. 550, contains much of the learning upon this branch of the law, and it would be useless to repeat what was there said, or to again review the authorities there referred to. In Wallace & Krebs the debtor assigned a number of judgments to his attorneys in payment of the creditors of the assignor naming them. There was no express trust, but this court held there was an implied trust, and that the assignment came within the Act of 1836.

The principle to be deduced from the authorities is that...