Sulzer v. Conner
| Decision Date | 13 December 1909 |
| Docket Number | 206-1908 |
| Citation | 41 Pa.Super. 317 |
| Parties | Sulzer, Appellant, v. Conner |
| Court | Pennsylvania Superior Court |
Argued December 19, 1908
Appeal by plaintiff, from decree of C.P. No. 1, Phila. Co.-1908, No 5,859, sustaining demurrer to bill in equity in case of Gustavus W. F. Sulzer, trading as Sulzer & Company, v. James H. Conner, David R. Carson, The Central Trust & Savings Company and W. Moseley Swain, substituted trustees of the Estate of William J. Swain, deceased, The Central Trust & Savings Company, Wilson H. Brown, sheriff of Philadelphia County, and Mary B. Irwin.
Bill in equity for specific performance and for a conveyance.
Demurrer to bill.
The principal averments of the bill and the grounds of demurrer are set forth in the opinion of the Superior Court.
Error assigned was in sustaining the demurrer.
G. Von Phul Jones, for appellant. -- In the bill is a distinct averment of fraud which is sufficient to set aside the sale and also to give a remedy in equity, aside from any other branch of the case: Evans v. Maury, 112 Pa. 300; McHenry's App., 61 Pa. 432; Enyard v. Enyard, 190 Pa. 114; Miller v. Baker, 160 Pa. 172; Latch v. West End Trust Co., 32 Pa.Super. 472; Columbia Bank's Est., 147 Pa. 422; Johnston v. Laflin, 103 U.S. 800.
If one received a conveyance of lands or other property, absolute in form, but really as security for a debt, he will hold the legal title in trust for the grantor.
Conner is the only person entitled to plead the statute of frauds and he has admitted the trust: Hauser v. Lamont, 55 Pa. 311.
There was no duty on the part of the plaintiff to pay the mortgage interest or see that it was paid: Eshbach v Zimmerman, 2 Pa. 313.
The plaintiff had no adequate and complete remedy at law: Filbert v. Philadelphia, 181 Pa. 530; Hawley v. Hampton, 160 Pa. 18.
Plaintiff is entitled to specific performance: Patterson v. Wilson, 19 Pa. 380; Conover v. Wright, 9 Pa. Dist. 688; Larison v. Burt, 4 W. & S. 27; Long v. Perdue, 83 Pa. 214.
This transaction is not within the act of June 8, 1881, requiring defeasances to be in writing: Moran v. Munhall, 204 Pa. 242; Goodwin v. McMinn, 193 Pa. 646; Bank v. Peace, 27 Pa.Super. 643; Whelen v. Whelen, 11 Pa. Dist. 14.
Wayne P. Rambo, with him Ormond Rambo, for appellees. -- The claimant has a full, adequate and complete remedy at law: Van Sciver v. Churchill, 215 Pa. 53; Drake v. Brown, 68 Pa. 223; 1 Troubat & Haly's Practice, sec. 1003, 576; Davis v. Michener, 106 Pa. 395.
Appellant is not entitled to specific performance.
The plaintiff's bill does not set forth any facts upon which defendants should be decreed to hold the property as trustees: Sankey v. Hawley, 118 Pa. 30; Molly v. Ulrich, 133 Pa. 41; Grove v. Kase, 195 Pa. 325; Crotzer v. Bittendender, 199 Pa. 504; Lohrer v. Russell, 207 Pa. 105; Guaranty Co. v. Linton, 213 Pa. 105; Sterck v. Germantown Homestead Co., 27 Pa.Super. 336.
The mortgage on the real estate in question was held by the trustees of the Swain estate, who sold the property for default in payment of over one year's interest, and the rights of the mortgage holder are superior to those of plaintiff.
Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
This case comes before us on an appeal from the judgment of the court below sustaining a demurrer to the plaintiff's bill. The averments of the bill are therefore taken to be admitted in the present consideration of the case. What, then, are the material facts alleged?
The defendant, Conner, was engaged in a building operation in the city of Philadelphia, which involved the erection of 157 houses. While that work was in progress he entered into a contract in writing with the plaintiff to furnish and attach the gas fixtures called for by the plans of the houses, as a consideration for which material and work he was to receive $ 4,000, $ 3,000 of which was to be paid in weekly installments as the material was delivered and the work progressed, and the remaining $ 1,000 at the completion of the buildings. The contract also provided that a certain house and lot known as No. 12 on the plan, and particularly described in the bill, should be conveyed to a trustee, that conveyance to be accepted as collateral to secure the payment of the $ 1,000 payable when the houses were completed. Pursuant to this agreement Conner conveyed the designated house and lot to David R. Carson, one of the defendants, who was an employee of the Central Trust & Savings Company, another defendant, Carson acting as the agent of that company in accepting and holding title to the lot in trust according to the terms of the contract referred to. All of the provisions of the contract, and the rights and equities of the plaintiff thereunder, with reference to this property, were known to and approved by the trust company, and a triplicate copy of the contract remained with it from the time of its execution, and the said company received and accepted title to the premises in the name of its agent, Carson, without paying any consideration therefor and solely for the purpose of securing the plaintiff in the payment of the $ 1,000. At the time of this conveyance there was an outstanding mortgage of $ 2,800 on the lot and the conveyance was made subject thereto. This mortgage was executed May 1, 1906, and on November 12, 1906, the title thereto became vested in the Central Trust & Savings Company and W. Moseley Swain, trustees of the estate of William J. Swain. Interest on this mortgage was to be paid by Conner, and funds were set aside in the hands of the trust company for that purpose. The money was not so applied and on January 21, 1908, the trustees of the Swain estate above named, with a knowledge of the plaintiff's rights in the premises, caused a judgment to be entered on the bond accompanying the mortgage referred to and issued an execution thereon, upon which the property was sold and bid in by the attorneys for the said trustees at the bid of $ 50.00, of which levy and sale the plaintiff had neither notice or knowledge until some time thereafter. And it is averred that the proceedings on the mortgage were carried on secretly with the intention of depriving the plaintiff of his security under his contract with Conner and his equity in the mortgaged premises. The gas fixtures for part of the houses were not delivered by the plaintiff but were specially manufactured by him and were ready to be attached and were tendered to Connor, but he declined to receive them. The plaintiff thereupon brought suit on the contract for the amount due thereunder and obtained judgment in the sum of $ 2,846.89, which was the whole amount due the plaintiff under the contract, less $ 1,181.29 theretofore paid.
In order to protect the title to the lot conveyed to Carson the plaintiff offered to pay off the judgment, interest and costs due on said mortgage, and by the said attorneys was referred to the Central Trust & Savings Company, one of the trustees of the Swain estate, as the party with whom the business should be transacted, and on May 26, 1909, a tender was made by the plaintiff to the trust company of the amount of the judgment, interest and costs due on the mortgage, and at the same time he requested that company to mark the mortgagees' bid at the sheriff's sale to the use of the plaintiff, which offer was not accepted. The plaintiff thereupon filed his bill praying that the defendants be ordered to specifically perform the contract with the plaintiff in relation to the lot conveyed; that the trustees of the Swain estate be enjoined from demanding a deed to the premises from the sheriff to themselves or any other person; that Carson and the trust company be decreed to hold the property in accordance with the terms of the contract as trustees thereunder; that upon payment to the mortgagees of the amount of their claim, Carson be decreed to convey the property to the plaintiff in part payment of the amount due him on his claim; that upon the payment of the sum due on the mortgage the trustee of the Swain estate be directed to tender a deed of the lot conveying the same to the plaintiff, and that upon the payment of the sum due to the mortgagees the sheriff be directed to execute and acknowledge and deliver to the plaintiff a deed conveying the property to him.
Defendant Conner filed an answer admitting the contract with the plaintiff and the conveyance of the lot to Carson for the purpose set forth in the bill; that the contract price was due to the plaintiff and that judgment had been recovered against him for the full amount thereof. The demurrer was filed several days after the answer by Conner and must be understood to be a demurrer of the other defendants, for the answer of Conner covers the whole bill and the demurrer has the same scope. The answer therefore overrides the demurrer as to Conner. Numerous grounds of demurrer are assigned which may be sufficiently considered without special reference to each. The contentions in support of the demurrer are:
(a ) That the plaintiff has an adequate remedy at law.
(b ) That the appellant is not entitled to a specific performance of the contract.
(c ) That the bill does not exhibit facts upon which the defendants should be declared to hold the property as trustees.
(d ) That the rights of the holder of the mortgage are superior to those of the plaintiff.
The position of the appellant is that Carson as the representative of the trust company holds the property as trustee for the plaintiff, and that the latter has standing in equity to protect his interest in the property so conveyed by paying the prior mortgage and becoming subrogated to the rights of the mortgagees. It is declared by the plaintiff and...
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