Powell v. Whitaker

• Decision Date: 17 February 1879
• Citation: 88 Pa. 445
• Parties: Powell <I>versus</I> Whitaker.
• Court: Pennsylvania Supreme Court

88 Pa. 445

Powell versus Whitaker.

Supreme Court of Pennsylvania.

January 23, 1879.

February 17, 1879.

January 23d 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1878, No. 271.

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Henry Reed and William W. Wiltbank, for plaintiffs in error.— The owner of the property was deprived of nothing but the right of way, and the damages therefor were personal property: Chambers v. Furry, 1 Yeates 167; Lewis v. Jones, 1 Barr 336. And they became personal property the moment the conversion was worked which a taking of land involves: City v. Dyer, 5 Wright 470; City v. Dickson, 2 Id. 247; Ex parte Hawkins, 13 Sim. 569; 1 Lead. Cas. Eq. 841, 842; Cadman v. Cadman, L. R. 13 Eq. 470. Now the date of the taking was the date of the ordinance November 20th 1874. Cook's right to damages then became a personal right, and this personal right he assigned to Powell & Co., on the 13th of April 1875.

Of the two judgment-creditors, we contend Powell & Co. should have the preference.

The basis of the opinion of the court below is the doctrine that the ground landlord had a lien upon the damages awarded for the arrears of the rent. But such a claim could only be considered by the light of principles of equity, and could only be administered through equitable forms. It would be inequitable to allow Whitaker to prevail here, for two reasons:

1. Because there would thus be thrown upon a fund representing the right of way over a small part of the entire lot the burden of the arrears of rent due for the entire property.

2. Because even by the view of the court below, Whittaker has two remedies, one by distress and impounding, and the other by an action on the personal covenant of the tenant; whilst Powell & Co. have but one, and they are deprived of the fruits of that one if Whitaker is allowed to prevail here, although Whitaker himself has still his action if this judgment is against him.

George L. Crawford, for defendant in error.—The ground-rent deed, the arrears whereof were the subject of the judgment of Robert Whittaker against Ladner and Cooke, is in the usual form with the clauses for right of re-entry and distress on default of payment, and the arrears are a lien without judgment: Bantleon v. Smith, 2 Binn. 146; Pancoast's Appeal, 8 W. & S. 381; Dougherty's Estate. 9 Id. 189; Ter Hoven v. Kerns, 2 Barr 96; Mather v. McMichael, 1 Harris 301.

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