Wells v. Van Dyke
| Decision Date | 30 March 1885 |
| Parties | Wells and Wife <I>versus</I> Van Dyke. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, C. J., GORDON, TRUNKEY, STERRETT and CLARK, JJ. PAXSON and GREEN, JJ., absent
ERROR to the Court of Common Pleas of Bradford county: Of January Term 1885, No. 399.
H. N. Williams and Rodney A. Mercur, (E. J. Angle with them), for plaintiffs in error.—A mortgagee in possession will not be allowed for improvements further than is proper to keep the premises in necessary repair. He ought not to be allowed for permanent and costly improvements made without the consent of the mortgagor even if they are of benefit to the estate: 2 Jones on Mortgages, §§ 1126 and 1127; Harper's Appeal, 14 Sm., 321. Ejectment by a mortgagor against a mortgagee in possession alleging the mortgage to be paid is a lawful remedy in Pennsylvania. It may be brought before the mortgage debt is paid, and the plaintiff may set off the rents, issues, and profits in satisfaction thereof: Reitenbaugh v. Ludwick, 7 Casey, 131; Wharf v. Howell, 5 Binney, 499; Cole v. Bolard, 10 Harris, 431; Stafford v. Wheeler, 12 Norris, 462. The form of this verdict is incorrect, it should have been for plaintiffs upon condition that they pay $241.44 before receiving the land. Such a conditional verdict has been decided to be correct in Reitenbaugh v. Ludwick, supra; Hewitt v. Huling, 1 Jones, 27. This proceeding is an equitable one, and is a substitute for a bill in equity. The court has as full power to control such a verdict that no injustice may be done as in the case of a conditional decree in a bill to redeem, of which there are many examples: Peebles v. Reading, 8 S. & R., 484; Eberly v. Lehman, 4 Out., 545; Rife v. Geyer, 9 P. F. S., 396; Creigh v. Shatto, 9 W. & S., 82; Gordonier v. Billings, 27 P. F. S., 498; Connolly v. Miller, 14 Norris, 513; Harper's Appeal, 14 P. F. S., 315; Reitenbaugh v. Ludwick, supra. The power of the court to amend a verdict is limited, and must make the amended verdict conform to the one actually rendered, both in meaning and intent. It cannot so amend it as to destroy utterly its meaning and entirely change it, as was done here: Friedly v. Scheetz, 9 S. & R., 165; Iven's Appeal, 9 Casey, 237; Byrne v. Grossman, 15 P. F. S., 310.
Edward Overton, Jr. (John F. Sanderson with him), for defendant in error.—A conditional verdict is bad at law, and sustainable only as an instrument of equity, and to that end must be supported by averments in the declaration: Irvine v. Bull, 4 Watts, 289. No case in Pennsylvania allows recovery in ejectment by a mortgagor who has not paid his debt, either by conditional verdict or otherwise: Warder v. Tainter, 4 W. 270. A conditional verdict is not proper in ejectment upon a mortgage, and if such a verdict be rendered the condition will be treated as surplusage, and a judgment entered accordingly: Bower v. Fenn, 9 Nor., 359.
The ordinary rule in respect to improvements is that the mortgagee in possession will not be allowed for them further than is necessary to keep the premises in proper repair. This rule is not inflexible, for the allowance may be regulated by the justice and equity arising out of the circumstances of each particular cause. Nor will the mortgagee be held to proof of absolute necessity: Harper's Appeal, 64 Pa. St., 315. While charges for repairs for the purpose of ornament, or the comfort of the mortgagee, or new buildings unnecessary for the preservation of the estate, will not be allowed, expenses for permanent improvements necessary and beneficial for the proper use of the estate will be allowed in the account: Jones on Mortgages, § 1129. Under the circumstances of this case, the evidence referred to in the second and third specifications was properly received. That the buckwheat refiner was a substantial improvement, and not a repair of old machinery, was not enough to exclude its cost as a proper charge. The old machinery may have been of such character as to have become useless in the competition with other mills in the neighborhood. Only upon the special circumstances could it be determined whether the defendant ought to be allowed the cost of the refiner. And for like reason the evidence relative to alterations in the sawmill was admissible.
The only remaining question which calls for remark, namely, whether the court erred in entering judgment for the defendant, is raised by the fifth specification. As the verdict settles that the debt was not fully paid, the learned judge of the common pleas was of opinion that the verdict and judgment must be for the defendant, citing as authority Hewitt v. Huling, 11 Pa. St., 27. In that case, it is true, that the jury were instructed to render a verdict for the defendants, unless the clear profits up to the time of the trial amounted to as much as the debt and interest. The point was not considered in this court, for there was an unconditional verdict for the plaintiff, showing that the jury found that the debt had been paid before the beginning of the suit. In Cole v. Bolard, 22 Pa. St., 431, the plaintiff alleged that the apparent deed was a mortgage; there was no claim of any payment by rent or profit, and it was said that if the debt was paid any time before trial,...
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