Philadelphia & R. R. Co. v. Pennsylvania S. V. R. Co.

• Decision Date: 11 November 1892
• Docket Number: 315
• Citation: 25 A. 177,151 Pa. 569
• Parties: Phila. & Reading R.R. v. Penna. Schuylkill Valley R.R., Appellant
• Court: Pennsylvania Supreme Court

25 A. 177

151 Pa. 569

Phila. & Reading R.R. v. Penna. Schuylkill Valley R.R., Appellant

No. 315

Supreme Court of Pennsylvania

November 11, 1892

Argued March 3, 1892

Appeal, No. 315, Jan. T., 1892, by defendant, from decree of C.P. Berks Co., Sept. T., 1890, No. 55, refusing to permit land damages to be paid into court.

Petition to pay land damages into court.

Defendants' petition averred that a verdict had been rendered for plaintiffs for $8,839.78 for land appropriated by defendants that the land appropriated and for which the damages were allowed, was bound by the liens of certain judgments and mortgages. The petition prayed for leave to pay the amount of the verdict into court for distribution to the person or persons entitled to the same, and that upon such payment into court it may be directed that the verdict be marked satisfied, etc., and for other relief.

The answer averred: (1) That by the verdict the damages were found to be due to plaintiffs as owners of the property appropriated. (2) That the proceedings under which defendants acquired possession of the land appropriated and by which the damages were assessed were of an adverse character, and payment to the plaintiffs would be a final disposition of any claim for damages and full protection from any future liability to lien creditors. (3) That no lien creditors have appeared and become parties to proceedings asking for payment to them instead of to the plaintiffs. (4) That the payment into court is an unnecessary precaution and unwarranted by law, and will tie up the money and subject the plaintiffs to serious loss and damage, for which there is no justification in law. (5) That the amount of the verdict is but a very small fraction of the value of plaintiffs' property and of the liens against it.

The court refused the application and dismissed the petition in an opinion by ERMENTROUT, P.J.:

"The right of the defendant to pay the amount of the verdict into court is not established by or predicated upon any act of assembly. In general practice, in assumpsit or covenant for the payment of money, when the dispute is not whether anything, but how much is due to the plaintiff, the defendant may have leave to bring into court any sum of money he thinks fit and is willing to admit to be due. Where, however, the action is for a tort or for general unliquidated damages it cannot be allowed. A tender cannot be pleaded and defendant is not allowed to bring money into court. Troubat and Haley's Practice, § 503. In applications of the present character the appeal is made to the equitable power of the court, which is exercised and is oftentimes indispensable to prevent injustice. Deckert's Appeal, 5 W. & S. 342. Whenever, therefore, payment of money into court is indispensable to prevent injustice, then and then only will the court permit a defendant to do so. As in all cases of the exercise of equitable powers, the party invoking the aid of the court ought to present a clear case, showing the injury that may arise unless the court interfere. With this principle in view, the disposition of the present case is free from difficulty. By act of assembly the owner is the party having the right to recover, the proceedings are instituted in his name and without objection a recovery has been had. The petitioner alleges 'that the land appropriated for the construction of the railroad and for which the damages are allowed is bound by the lien of certain judgments and mortgages.' Their nature, character and amount are not specified. It is not alleged nor is it shown that any injustice can possibly arise by the payment of the money to the owner who has recovered in the suit. On the contrary, the answer of the owner is 'that the amount of the verdict is but a very small fraction of the value of the plaintiff's property and of the liens against it.' Nor does any lien creditor appear here in court asking for any disposition of this money, nor alleging that payment to the owner would work any injustice or prejudice the value of his security. This action is instituted to No. 55 Sept. term 1890. The act of appropriation of land was notorious and public. Creditors have therefore had ample time to make their claims. No clear case calling for the exercise of the equitable powers of the court is therefore shown, and under the circumstances of this case it would be inequitable to order this money into court to be diminished by the payment of poundage, etc.

"A brief examination of the authorities will clearly demonstrate that this power of the court has not been exercised except to prevent palpable injustice, and at the request either of lien creditors whose security and rights were in danger, or where the defendant was notified not to pay over by lien creditors so imperiled. Beginning with Schuylkill Navigation Company v. Thoburn, 7 S. & R. 411, it has been decided that none but the owner or owners can sustain proceedings against the corporation or company exercising its right of eminent domain in the taking of the owners' lands, and that whatever claim lien creditors having liens upon the land taken might possibly have to the damages recovered, could only be enforced upon motion to take the money out of court. In Reese v. Addams, 16 S. & R. 40, it was held that whilst the owner of the land is the party to bring suit, courts of justice would take care that the rights of all interested in the proceeds of the land would be protected. In this case the money recovered as compensation for the land had been paid into court and the lien creditors appeared, 'asking the court to protect their rights, which will be absolutely destroyed if the money be suffered to pass into the hands of the owner of the land or his assignee.' The owner by his assignee was not permitted to take the money, which was insufficient to pay the liens. The plaintiff's assignee was demanding the money, not as a trustee for lien creditors, but with the intent to apply it to an entirely different purpose. The court intimated that 'a payment by the company to the owner would be a protection to them, that they were not bound to see to the application of the money unless perhaps on express notice.'

"In Deckert's Appeal, 5 W. & S. 342, the money had been paid into court and the lien creditors 'were diligently pursuing it to prevent it from going into the hands of the owner or his assignee.' The court sustained the claim of the lien creditors upon the ground 'that rights would have been destroyed if the money had been suffered to pass into the hands of the owner,' who was insolvent; that the right of the court to do so 'comes under the head of preventive justice, a beneficent and highly useful branch of chancery jurisprudence.' But the Supreme Court also said 'that the owner of the land who was insolvent had the legal right to receive the money from the company, and payment to him would have been a good payment without notice of the equitable interests.' The right of the creditors was preserved under the equitable powers of the court to prevent injustice. In Phila. v. Dyer, 41 Pa. 463, the existence of liens on the land was held not to affect the right of the owner to recover, and at the end of the opinion filed the court say, 'we add only that if there are liens upon the lands the rights of the lien creditors may be protected by ordering the fund to be paid into court to be marshaled there. Such liens do not affect the right of the plaintiff to recover.' In Workman v. Mifflin, 30 Pa. 362, part of a lot out of which a ground rent was reserved was taken for a public highway. It was held, 'whilst the ground landlord was not an owner to whom damages could be awarded, that in equity a portion of the damages could have been impounded to meet the accruing rents.' Powell v. Whitaker, 88 Pa. 445, raised the question of priority of a ground landlord having a lien for arrears of ground rent over a judgment creditor in a claim for damages awarded for the opening of a street through the ground. The landlord was protected upon equitable grounds, 'that he would be defenceless unless he could in some way be protected by the courts.' His claim was largely in excess of the damages awarded. Upper Dublin Road, 94 Pa. 126, as reported, is of but little value except as an intimation that a mortgagee of property alleged to be damaged by the opening of a road might, by a petition with proper averments, bring himself upon the record so as to obtain the benefit of said damages. In this case, because of the want of the necessary averments, the Supreme Court could not take cognizance of the question of the mortgagee's right to damages.

"The latest case on the question is that of Knoll v. New York etc., Ry. Co., 121 Pa. 467. The company had constructed its railroad and the plaintiff was the holder of a mortgage upon the house and lot in front of which the railroad...