Marcus v. Grant

• Decision Date: 14 March 1927
• Docket Number: 45
• Citation: 289 Pa. 1,137 A. 120
• Parties: Marcus, Appellant, v. Grant
• Court: Pennsylvania Supreme Court

137 A. 120

289 Pa. 1

Marcus, Appellant, v. Grant

No. 45

Supreme Court of Pennsylvania

March 14, 1927

Argued January 24, 1927

Appeal, No. 45, Jan. T., 1927, by plaintiff, from decree of C.P. Berks Co., No. 1386, Equity Docket 1924, dismissing bill in equity, in case of Martha M. Marcus v. Simon Grant. Affirmed.

Bill to compel sale of real estate. Before SCHAEFFER, P.J.

The opinion of the Supreme Court states the facts.

Bill dismissed. Plaintiff appealed.

Error assigned was, inter alia, decree, quoting record.

The decree is affirmed at appellant's cost.

Joseph H. Sundheim, of Bernheimer & Sundheim and H. P. Keiser, for appellant.

Cyrus G. Derr, with him J. Paul MacElree, for appellee.

Before MOSCHZISKER, C.J., FRAZER, WALLING, KEPHART, and SCHAFFER JJ.

OPINION

MR. JUSTICE SCHAFFER:

Defendant having acquired in fee simple the property which is the subject-matter of this litigation executed the following writing:

"Know All Men by These Presents, That I, Simon Grant, of West Chester, Pennsylvania, hereby acknowledge myself indebted to Nathan Marcus, of Reading, Pennsylvania, for services rendered and not compensated under the following arrangement, that is to say, that I will pay to said Nathan Marcus one-half of the net profit derived from the property Nos. 802 and 804 Penn Street, Reading, Pennsylvania, lately purchased through the efforts of said Nathan Marcus from M. S. Hershey for the sum of forty-five thousand dollars (all expenses of maintaining the building, such as taxes, repairs, interests, etc., of course to be deducted from the receipts); and in case of a sale of said property for more than forty-five thousand dollars, I will pay to said Nathan Marcus, his administrators, executors or assigns, one-half of the profit, but in case of a loss I, Nathan Marcus, will stand half of it.

"Witness my hand and seal this 3rd day of January A.D. 1905.

"Simon Grant (Seal)"

Plaintiff filed this bill in equity setting forth that she is the widow of Nathan Marcus and devisee of his interest in the property and that she had requested defendant to sell it and pay to her one-half of the net profit realized, which he has refused to do. She prayed a decree declaring her rights in the property, directing that it be sold, appointing a receiver of the purchase money to distribute the proceeds and that defendant be enjoined from making sale otherwise than as the court might direct. Defendant filed an answer averring that plaintiff's interest in the property is not such as entitles her to demand a sale, asserting his own absolute ownership and control limited only by the obligation to manage it in good faith and to account to plaintiff annually for the net revenue and, when he should think it advantageous, to sell and account to plaintiff for one-half the net profit.

The chancellor determined that defendant is the absolute owner of the premises, that plaintiff is entitled to one-half the net income, that upon sale thereof she is entitled to one-half the net proceeds after the deduction of the sum of $45,000 paid by defendant therefor and the deduction of all liens and proper charges, that defendant is required to furnish plaintiff an account of the income from the property from a date named and of the sums chargeable against it, and that plaintiff is entitled to be informed of the terms of all leases made by defendant and of the expenditures necessary for the reasonable maintenance of the building. On final decree the chancellor dismissed the bill, in that connection stating that he was originally prompted to retain it as a further protection to plaintiff in addition to the recorded declaration of her rights; he, however, concluded that as her rights are founded upon the recorded declaration, the retention of the bill could give no greater protection, whereas the continuance of litigation might affect her adversely by deterring responsible persons from accepting a lease of the property upon the best terms.

We agree with the court below that the plaintiff has no interest by way of estate or title in the property and that the paper executed by defendant shows not that Nathan Marcus had an interest therein but that defendant was...