Dohnert's Appeal

The opinion of the court was delivered, by Sharswood, J. — The jurisdiction of this court to exercise the powers of a court of chancery, depends upon statutory enactments. The Constitution of the Commonwealth, Art. V., sect. 6, provides, that the legislature shall vest in the Supreme Court and several Courts of Common Pleas, besides the powers theretofore actually exercised by them, and certain enumerated powers, “ such other powers to grant relief in equity, as shall he found necessary, and may from time to time enlarge or diminish those powers, or vest them in such other courts as they shall judge proper, for the due administration of justice.” We must resort then to the Acts of Assembly for our warrant in [314] any case of this description. The Act of June 16th 1836, sect. 13, Pamph. L. 790, has declared, that this court in the city of Philadelphia, shall have the power and jurisdiction of a court of chancery, so far as relates to “ the determination of rights to property or money claimed hy two or more persons, in the hands or possession of a person claiming no right of property therein.” This clause describes accurately a bill of interpleader, but it does not comprehend what is known in the books as a proceeding in the nature of a bill of interpleader. “A bill of interpleader,” says Story, “strictly so called, lies only, when the party applying claims no interest in the suhject-matterEquity Plead. §.297, b. This is what the act says: “ in the hands or possession of a person claiming no right of property therein.” But Judge Story adds, that “there are many cases, where a bill, in the nature of a bill of interpleader, will lie by a party in interest to ascertain- and establish his own rights where there are other conflicting' rights between third persons. As for instance if a plaintiff is entitled to equitable relief against the owner of property, and the legal title thereto is in dispute between two or more persons, so that he cannot ascertain to which it actually belongs, he may file a bill against the several claimants in the nature of a bill of inter-pleader for relief.” This describes perfectly the nature of the bill in this case, but it evidently is not that contemplated or intended by the Act of 1836. The right to redeem or extinguish a ground-rent under the covenant to that effect contained in the deed, reserving the rent, is claimed by the plaintiff alone. It is not claimed by the defendants or any of them. They could not compel the plaintiff to redeem. He alone has the option of doing so at his own will and pleasure. He cannot be obliged to litigate for this redemption-money with those claiming under the will of Sarah Wistar and those claiming against it. Nor can the court in this proceeding determine the right between the defendants, which is the chancery power granted by the Act of 1836. It is “ the determination of rights to property or money claimed by two or more persons,” which is the object of the grant; not to receive, invest and take care of the property or money until some other court has determined it. The jurisdiction to determine the right in controversy between the defendants is in the Register’s Court, where the appeal from the register is now pending. There is some plausibility in the contention that the case is within the subsequent grant: “ the affording specific relief when a recovery in damages would be an inadequate remedy.” We will not pause to inquire whether this is a covenant which equity will specifically enforce, as it is one-sided and without mutuality of remedy; nor whether the plaintiff has not a remedy under the provisions of the 1st section of the Act of February 5th 1821, Pamph. L. 25. Specific performance of a contract or covenant is [315] within the sound discretion of the chancellor. There must be no default in the plaintiff which would render it inequitable to grant him the required relief. As this case was put down to be heard on bill and answer, the answers must be received as verity. It is a demurrer in effect by the plaintiff. The answers aver that the plaintiff has failed entirely to fulfil his covenant contained in the same deeds and relating to the same subject-matter. He covenanted that he would “within one year from the date” erect and build on each lot granted to him on ground-rent, a good and substantial three story brick dwelling-house with buildings, if any, to face west, of sufficient value fully to secure the ground-rent. It is no reply to say, that if the principal and arrears of the rent are paid in full, the defendants have no ground of complaint, because the building covenant was merely to secure the payment of the rents. During all this delay of more than fifteen years, Sarah Wistar, and those deriving title under her, have been without the advantage of the' security which the fulfilment of the building covenant would have afforded them. The ground-rents were less valuable, and less likely to secure a full price and ready sale in the market. This injury has been suffered by the default of the plaintiff, and under these circumstances he cannot ask a chancellor to interpose, at a time when the defendants are not in a condition to receive the redemption-money and either to invest it to advantage or divide it amongst those entitled to it. Decree affirmed and appeal dismissed at the costs of the appellant, without prejudice.