Maxson's Appeal

The opinion of the court was delivered, May 11th 1874, by Mercur, J. This bill was filed by the claimant of an equitable title to compel the owner of the legal title to convey the land in controversy. The appellants hold the undoubted legal title. The appellee rests his equitable claim upon the following facts, to wit: Mcllvaine, a former owner of the land, agreed in writing on the 2d day of January 1865, to sell and convey the same to one Green, in consideration of the sum of $13,370.62 to be paid therefor; $1190.62 thereof to be paid upon the execution of the agreement, and the residue in subsequent instalments. Upon the payment of the whole purchase-money, Mcllvaine was to convey the land to Green, his heirs and assigns in fee. Green went into possession, and prior to the 22d September 1866, made the first payment. He failed to pay the other instalments as they became due. On the 21st day of January 1871, Mcllvaine brought an action of ejectment, and on the 23d February 1871, obtained an award of arbitrators for the land, subject, in the language of the award, to this condition, “ to be released if the defendant pay the plaintiff the sum of $12,961.17 within three weeks of the date of this [186] award, and in case of such payment, the plaintiff shall make a full conveyance of the land in fee simple.” On the 14th of March 1871, the appellee, in his own name, appealed from the award thus obtained against Green. This appeal was stricken off on the 20th April 1871, upon Mcllvaine filing a writing abating $887.17 from the amount awarded by the arbitrators. Thus leaving the amount of the award $12,073.60. In the latter part of April 1871, Green gave possession of the premises to Mcllvaine, who entered therein, without any writ of habere facias possessionem having been issued. On the 21st May 1871, Mcllvaine sold and conveyed the premises to one Blaisdell, who on the 14th of September 1871, sold and conveyed the same to the appellants. The appellee claims to hold all the equitable interest which Green acquired by virtue of his contract. On the 22d September 1866, Green executed a mortgage upon all his interest in the land to Rhodes & Ereeman. The mortgage was duly recorded on the 25th of the same month. May 16th 1867, this mortgage was duly assigned to the appellee. He issued a sei. fa. thereon to November Term 1870, and on the 27th of July 1871, obtained a judgment. A levari facias issued thereon, under which the land was sold on the 24th August 1871, to the appellee, to whom the sheriff executed a deed therefor on the 28th of the same month. On the 20th September 1871, he tendered to the appellants the amount of the judgment which Mcllvaine recovered against Green, with interest and costs, and demanded a conveyance of said premises in fee simple. The appellants declined to accept the money and refused to convey. On the 20th November 1871 the appellee filed this bill, praying that the appellants be decreed to convey the land to him upon his paying the amount of the judgment against Green with interest and costs. The case was referred to a master, who in February 1872 reported against the plaintiff in the bill; but afterwards by leave of the court, he filed an amended bill, upon which the master reported in favor of the decree prayed for. The court below confirmed the report and decreed a conveyance accordingly- The appellee claims that the equities originally covered by the mortgage executed by Green, have been preserved and continued in him, from the fact that when the court dismissed his appeal, it omitted to designate any time for the payment of the money; and that he made the tender within a reasonable time after he received the sheriff’s deed of the property. The only judicial decision designating the time within which the purchase-money should be paid to prevent a forfeiture of all the equitable interest of the vendee, was the one made by the arbitrators. There was no averment of any collusion between Mcllvaine and Green in the procurement of the award; so far as it [187] appears this was the result only of Green’s inability to pay and of Mcllvaine’s desire to collect the purchase-money or regain the land. It is shown that the court expressed a purpose to allow the irregular appeal from the award to be so amended as to permit the appellee to defend in the name of Green; but upon Mcllvaine proposing to abate the entire amount which was alleged to be excessive, and no further ground for an appeal being shown to the court, it was stricken off. If the appellee desired any extension of time for the payment of the sum awarded, thus corrected, then was the proper time to have asked for it. I do not mean to say that by the omission to apply on that day the appellee waived all right to invoke the equitable power of the court to designate some future day before which the judgment should not become absolute, yet I think the court would not have been justified in doing more than to enforce the spirit of the award as to the time of payment; and therefore should not have extended the time of payment for more than twenty-one days after the appeal was dismissed. The case is not analogous to a conditional verdict, in which the jury has omitted to fix a time of payment. Here the award did fix the time. Wherever it was not changed by the subsequent action of the court, it remained in full force. In the absence of any fraud or collusion, I a,m unable to see how the appellee stood upon any higher ground than that occupied by Green. Mcllvaine had parted with a limited interest in his land. Whether that interest was retained by Green unencumbered, or whether he gave a lien upon it, did not change Mcllvaine’s rights, nor his methods of enforcing them. The holder of the legal title was not required to make the mortgagees parties to the action of ejectment. They had a lien only on the equitable interest of Green. A mortgage like a judgment confers on the mortgagee nothing more than a lien upon the land: Asay v. Hoover, 5 Barr 35; Witmer’s Appeal, 9 Wright 463. When the award became absolute, and Green gave up the possession to Mcllvaine, all Green’s equitable interest terminated: Damon v. Bache, 5 P. F. Smith 67. It is urged, however, that the appellee was not in a safe condition to pay the purchase-money, until he acquired the equitable interest at sheriff’s sale. Conceding this to be so, it admits of a satisfactory answer. To give full effect to this argument, would ignore the rights vested under the award, in the owner of the legal title, and might indefinitely postpone him in the collection o.f the purchase-money or the confirmation of his title. Neither the mortgagee nor a purchaser under the mortgage was under any obligation to pay it. In fact the appellee suffered more than twenty-one days to pass after receiving the sheriff’s deed, before he made a tender of the [188] purchase-money. In the' meantime the appellants had expended upwards of $2000 in repairs upon the property. We think the appellee was not in a condition to compel a conveyance, and the bill should have been dismissed. This view of the case makes it unnecessary to discuss the errors assigned to permitting the bill to be amended. We will merely say, that under the rules, and especially under the 2d section of the Act of 29th March 1859, Purd. Dig. 601, pi. 71, we discover no fatal error in permitting the amended bill to be filed. Decree reversed, and now it is ordered and decreed that the bill be dismissed at the costs of the complainant and appellee.