Winton's Appeal

• Decision Date: 02 May 1881
• Citation: 97 Pa. 385
• Parties: Winton's Appeal. Morss's Appeal. Winton <I>versus</I> Morss, Executor of Mott.
• Court: Pennsylvania Supreme Court

Page 385

97 Pa. 385

Winton's Appeal.

Morss's Appeal.

Winton versus Morss, Executor of Mott.

Supreme Court of Pennsylvania.

March 11, 1881.

May 2, 1881.

March 11th 1881.

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

Appeals from the decree of the Court of Common Pleas of Luzerne county. In Equity. Of July Term 1879, Nos. 43 and 82.

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James Ryon (with him A. H. Winton), for the appellant in Winton's Appeal, and for the appellee in Morss's Appeal. The petition of the defendant Morss, filed two years after the controversy between the parties, had been finally settled by the Supreme Court in Winton's Appeal, 6 Norris 77, was an anomalous and illegal proceeding, which gave the court below no jurisdiction to re-open the case. It was neither a cross-bill, an interlocutory petition, nor a bill of review: Dennison v. Goehring, 6 Barr 402; Riddle's Estate, 7 Harris 431; Russell's Appeal, 10 Casey 258; Hartman's Appeal, 12 Id. 70; Green's Appeal, 9 P. F. Smith 235. The issue raised on the petition was entirely different from the objects of the original bill. The decree was that Winton may, upon payment of a certain amount, at his option, compel a reconveyance. The petition does not seek, as a supplemental bill in aid of a decree, to enforce the decree; for the decree was in Winton's favor, and the defendant is seeking to enforce it as a judgment against him.

A mortgagee out of possession has a mere lien on the land, he is not entitled to the rents, issues or profits, and the lessee cannot be made a party, especially after final decree, and be compelled to pay over such rents to the mortgagee: Bittinger v. Baker, 5 Casey 66; Bank v. Patterson, 9 Barr 311; Anderson v. Neff, 11 S. & R. 208; Kenton v. Vandergrift, 6 Wright 344; Ashhurst v. Montour Iron Co., 11 Casey 30. In this case, the mortgagee, having never had actual possession, has no right to the two-thirds of rents belonging to the plaintiff.

The statutory proceeding on a mortgage in Pennsylvania is by scire facias, and the courts have no jurisdiction in equity to decree a sale of mortgaged premises at the instance of the mortgagee. The defendant cannot come in after the final decree and have it altered by attaching to it an order of sale and foreclosing the equity of redemption: Turnpike Co. v. Martin, 2 Jones 361; Winton's Appeal, 6 Norris 77; Ashhurst v. Montour Iron Co., 11 Casey 30; Denison v. Goehring, 6 Barr 402; Brightly's Equity, sect. 827, p. 578.

Henry W. Palmer and Benjamin S. Bentley, for the appellant in Morss's Appeal, and for the appellee in Winton's Appeal.— This petition was in the nature of a bill to enforce the final decree by compelling the plaintiff to do the equity which in his bill be offered to do, but which, after obtaining a decree for the relief prayed for, he has refused to do. This is not the case of a mortgagee out of possession demanding rents and profits. The body of the estate, whether pledged, leased or sold, was the coal. The lessees by removing the coal, which they had a right to do, took the estate itself, the lessors' and mortgagee's portion of which is represented by the royalties or proceeds thereof remaining in the lessees' hands. The Delaware & Hudson Canal Company lessee is not made a party to the litigation, but, as indifferent stakeholder, is willing to pay the stake to the party entitled thereto. The defendant has complied with his duty under the decree, and merely asks that the decree be enforced as against the plaintiff.

Under the circumstances of this case we were entitled to a decree for the sale of the Vosburg third. We might have brought an equitable ejectment, and obtained a conditional verdict, and if not complied with the court would order a sale. But we were brought directly into a court of chancery by our opponents, and the court of equity, having taken jurisdiction, and awarded to the plaintiff the equity he claimed, will work out our equities by enforcing the plaintiff to do the equity he promised. A court of equity will decree a sale of mortgaged premises for the benefit of the mortgagee if necessary to work out the equities of both parties. The money proceeds of coal, in the hands of the lessees, represents part of the purchase-money which the plaintiff was decreed to pay us for the Vosburg third: these proceeds should be paid to us in the partial enforcement of the decree; and the Vosburg third, or what remains of it, should be sold to pay us the rest. It is argued our remedy is by scire facias or ejectment, but the coal as to a part is gone, and the proceeds are in the control of the court. We have no personal security, and if we were to proceed by scire facias we would have the privilege of selling a hole in the ground.

Mr. Justice PAXSON delivered the opinions of the court May 2d 1881.

WINTON'S APPEAL.

This proceeding was in the nature of a supplemental bill in aid of a decree in equity. It is not so technically, for the reason that it was commenced by petition. The form adopted was not objected to, nor is it material.

That a bill may be filed for such a purpose is well settled. It is true it cannot vary the principle of the decree. Its province is to carry out the decree, and to give full and complete effect to it as it exists: Hodson v. Ball, 1 Phil. Ch. 177; Adams's Equity, 416, where several authorities are cited.

It would be tedious to recite all the prior proceedings in this case. The original decree which it is now sought to enforce was entered January 26th 1875, on a bill filed by this appellant, praying that a certain deed and certain assignments specified in said bill, may respectively be decreed to be a mortgage; that the amount due by said plaintiff (appellant) may be ascertained, and that when so ascertained, upon the payment thereof by the plaintiff (which payment in full the plaintiff offered to make), the defendant may be decreed to make and execute "a deed of conveyance for the undivided one-third part of the said tract of land aforesaid." A protracted litigation resulted in the decree of January 26th 1875, before referred to, which sustained the position assumed by the plaintiff, that the papers referred to, though absolute on their face, yet in reality constituted a mortgage. The decree further ordered, that upon the payment by the plaintiff of the costs of suit, the defendant should convey a one-third interest in the Calvin Barber tract; and that upon the payment by the plaintiff to the defendants of the sum of $10,941.52, they should convey another third of said tract. In obedience to this decree the defendants executed the necessary conveyances for the Newton third and the Vosburg third of said tract of land, tendered them to the said plaintiff, who refused to accept them and to pay the money. The deeds were then filed.

This proceeding was then commenced in the court below. Upon the filing of a petition setting forth the facts, the court granted a rule upon the plaintiff and also upon the Delaware & Hudson Canal Company, lessees of the land in controversy, to show cause why the amount of rent in the hands of said company, due the plaintiff, should not be ascertained and applied to the payment of the amount found to be due defendants by the decree of January 26th 1875; and also to show cause why the Vosburg third of said tract should not be sold for a like purpose. This proceeding resulted in the following decree: "Now, May 12th 1879, this cause came on to be further heard, and was argued by counsel, and and thereupon upon consideration,...