Roush v. Herbick

• Decision Date: 31 December 1920
• Docket Number: 173
• Citation: 112 A. 136,269 Pa. 145
• Parties: Roush, Appellant, v. Herbick
• Court: Pennsylvania Supreme Court

112 A. 136

269 Pa. 145

Roush, Appellant, v. Herbick

No. 173

Supreme Court of Pennsylvania

December 31, 1920

Argued October 18, 1920

Appeal, No. 173, Oct. T., 1920, by plaintiff, from order of C.P. Allegheny Co., July T., 1919, No. 216, refusing judgment for plaintiff n.o.v., in case of Joseph C. Roush v. Nicholas Herbrick and Theo. H. Doehla, trading as Penn Baking Co., and Elevator Construction Co. Reversed.

Issue in proceedings by a purchaser at sheriff's sale of real estate, to obtain possession. Before DREW, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned, inter alia, was refusal of judgment n.o.v., quoting record.

The judgment of the court below is reversed, and judgment is here entered for plaintiff non obstante veredicto, that he recover from defendants possession of the property described in the petition in this case, and damages for its wrongful detention at the rate of $166.67 per month from April 30, 1919, to the date of delivery of possession, said damages to be assessed by the court below as in other cases.

Edwin W. Smith, of Reed, Smith, Shaw & Beal, with him Geo. H Rankin, for appellant, cited: Barry v. Hill, 166 Pa 344; Watson v. Watson, 198 Pa. 234; McCloskey v. McCloskey, 205 Pa. 491; Freeman v. Lafferty, 207 Pa. 32; Hostetter's Petition, 57 Pa.Super. 601; Horvath v. Rull, 27 Pa. Dist. R. 438; Reisinger v. Coal Co., 262 Pa. 530.

John A. Metz, for appellees. -- The case of Fellows v. Loomis, 170 Pa. 415, is directly in point.

Before BROWN, C.J., MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE SIMPSON:

When Mary Joyce died she was the owner of two properties, one in Braddock, Pennsylvania, which was bringing in a good rental and was subject to a mortgage of $30,000, held by the Union National Bank of Pittsburgh; and the other Nos. 305-309 Penn avenue in the City of Pittsburgh, which was subject to a first mortgage of $60,000 held by the Fidelity Trust Company, and a second of $30,000 held by said Union National Bank. The two mortgages of $30,000 were security for a single debt of that amount owing by her to the bank.

All the mortgages were overdue and the interest thereon was in arrears, as was also the taxes on the properties. The bank demanded payment of its indebtedness, and, this not having been made, foreclosed the mortgage on the Braddock property. In order to protect the estate, Mrs. Joyce's executrix thereupon endeavored to sell the Penn avenue property, and plaintiff agreed to purchase it for $105,000, $5,000 of which he paid at the date of the agreement, $60,000 was to be paid by the assumption of the first mortgage of that amount, and the balance of $40,000 on April 1, 1919, when title was to be made to him. It was further provided that possession was to be given to him "on or before April 30, 1919, or as soon before that date as the tenants vacate the premises or any part thereof after delivery of deed."

Without a decree of the orphans' court the executrix could not convey the Penn avenue property to plaintiff, for the will did not work a conversion, and suits pending against the estate preserved the lien of decedent's debts. There were also judgments against certain of the heirs, and the amounts necessary to pay the mortgages, taxes and arrearages of interest, left but little margin over the purchase price. An application to the orphans' court for authority to sell at private sale, would probably have resulted in a loss of the Braddock property, which was to be sold by the sheriff within a week thereafter, and possibly in an inability to comply with the conditions of the sale to plaintiff; consequences which would have been disastrous to the estate. Her counsel concluded, therefore, that an agreement with the bank to stay proceedings on the Braddock mortgage and to foreclose the Penn avenue mortgage and sell this property by the sheriff, was the only possible way out of the difficulty; and hence took up the matter with the bank, resulting in an agreement by which, in consideration of the estate paying to it the $5,000 received from plaintiff, it consented to the plan suggested; it being understood that title was to be made to plaintiff, as purchaser as aforesaid, upon his paying the remainder of the price agreed upon, out of which the indebtedness to the bank, the expenses of the proceedings and the debts against the property (excluding the principal of the $60,000 mortgage), were first to be paid, and if there was any balance remaining, it was to go to the Joyce estate. So far as appears, plaintiff had nothing to do with the making of this agreement and did not know of it until about the date of the sheriff's sale provided for thereby.

Defendants were made terre-tenants in the foreclosure proceedings against the Penn avenue property, which followed as a result of the agreement, and were served with the scire facias, but made no defense thereto. In due course the bank recovered judgment, the property was sold by the sheriff on a levari facias, was bought in by it and title taken in the name of Charles Paden, its cashier. In addition to the $5,000 already paid by plaintiff, he paid the balance of the amount bid at the sheriff's sale, and later, upon receiving a deed from Paden, paid the remainder of the $40,000 agreed upon, which was distributed as arranged, the Joyce estate getting but $2,579.99 thereof.

When plaintiff demanded possession from defendants they refused to deliver it, alleging the proceedings were a scheme to cheat them out of their leasehold, and hence did not affect their right of possession. He thereupon filed his petition under the Act of April 20, 1905, P.L. 239; defendants answered, an issue was awarded, the case tried and a verdict rendered for defendants. This was followed by a motion for judgment for plaintiff non obstante veredicto, which being refused and judgment entered on the verdict, plaintiff took this appeal.

As defendants were served with the writ of scire facias, the judgment thereon precludes them from now setting up any defense which might have been made thereto (Nace v. Hollenback, 1 S. & R. 540; Colley v. Latimer, 5 S. & R. 211; Kennedy v. Baker, 159 Pa. 146; Taylor v. Beekley, 211 Pa. 606); and this is so even though they did not then know such a defense existed (Leech v. Armitage, 2 Dallas 125; Kilheffer v. Herr, 17 S. & R. 319; Bell v. Allegheny County, 184 Pa. 296, 303), the remedy in that event being a rule to open the judgment. Evidently they recognize this to be so, for they aver in their paper-book here that "if all the facts contained in the answer to the petition [for possession] had been set up in an affidavit of defense to the sci. fa., the court would very promptly and properly, on motion for judgment for want of a sufficient affidavit of defense, have said: 'Those facts may all be true, but they are not sufficient to prevent judgment.' Defendants therefore allege as their reasons for defeating plaintiff's claim for possession (1) that the transaction, in so far as the executrix and the purchaser are concerned, was a legal fraud; and (2) the purchase by Paden was in trust for the Joyce estate, which could not have disturbed their possession, and hence plaintiff, as purchaser from him as such trustee, is likewise unable so to do."

There were three parties to the transfer of title, the bank plaintiff and the Joyce estate. It was stated by the court below, and admitted by defendants in this court, that none of those who acted for the bank had been guilty of any fraud in regard to the making or carrying out of the agreement. It is equally clear plaintiff also was innocent of fraud; indeed the only claim made is that he was guilty of a legal fraud, but how this could be is not pointed out. Assuming the Joyce estate desired the foreclosure for the purpose of invalidating the lease, there is no evidence that plaintiff, or any one acting for him, knew or had any reason to believe this to be so. All the evidence is to the effect that this was never spoken of in the course of the proceedings; if it existed it was an undisclosed purpose, and the executrix and her counsel deny that it existed. The only reason given for obtaining title through the foreclosure proceedings, and even this not to plaintiff, was that it was necessary so to do in order to discharge the lien of debts of the estate not of record and the judgments against certain of the heirs. It is said plaintiff's counsel was handed the lease to defendants (whether before or after the sheriff's sale is disputed) and thereby knew it had not expired; but this does not constitute fraud or anything akin to it. Assuming he thereby knew of defendant's...