Winton v. Morss

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 he 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 he 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 [394] 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, it is ordered, adjudged and decreed that the sum of $4100.53, one-half thereof being from the Vosburg third, and the other half being from the Newton third, ascertained to be now in the hands of the Delaware & Hudson Canal Company as indifferent stakeholders, and not involved in any possible litigation between the company and the grantors, under whom the plaintiff claims, nor between the company and the plaintiff himself, be paid by said company to the defendant to apply on the original decree in this case.” It was to this decree the appeal was taken.. The court below declined to order the sale of the Vosburg third, as prayed for, from which refusal the defendant appealed. His appeal will be subsequently considered. The position of the plaintiff is this: Having obtained a decree in his favor by which the deed was declared a mortgage, upon the offer to pay promptly and in cash the amount due thereon, he now declines to pay the money, and denies the power of the court to compel him to do so. He seems to be under the impression that the cause has reached a point where the court has lost its power; that the proceedings are at a dead lock, and that the only remedy left the defendant is to go into a court of law with his scire facias upon the mortgage, a writ of ejectment or action of covenant. In the meantime the land, which is chiefly valuable for its coal, is being constantly depreciated by the working of its mines. The plaintiff has mistaken the powers of a court .of equity. It [395] is not so helpless as he imagines. When once it has a case within its grasp it has all the authority necessary to a full disposition of all tho questions arising therein. In doing so it has no occasion to call to its aid tho assistance of a court of law. Its remedies are plastic, and may be moulded to meet the exigencies of the case. The plaintiff having invoked this jurisdiction and obtained the relief ho sought, cannot now turn the defendant over to a court of law to obtain tho redress to which he is entitled upon the plaintiff’s own showing. The tribunal to which the latter has appealed will hold him and his property within its grasp until he does that equity which ho solemnly promised to perform. This is no new doctrine. It was said by this court, in McGowin v. Remington, 2 Jones 63, “ that when a court of equity takes cognisance of a litigation it will dispose of every subject embraced within the circle of contest, whether the question be of remedy or of distinct yet connected topics of dispute. If the jurisdiction once attaches from the nature of one of the subjects of contest, it may embrace all of them, for equity abhors multiplicity of suits.” In Souder’s Appeal, 7 P. F. Smith 498, it was held that “ when a court of equity once obtains jurisdiction of a subject it will comprehend and decide all incidental matters necessary to enable it to make a full and final determination of the whole controversy.” Authorities might be multiplied indefinitely were it necessary. It is the merest technicality to say that the decree of January 26th 1875 contains no direct order upon the plaintiff to pay the money. Why should it ? It was a decree against the defendant upon the plaintiff’s bill. It was obtained upon the faith of plaintiff’s offer to pay tho money. It would have been gratuitous to make a decree against him to do what he bad offered to do as a ground of his relief. His present attitude is that of one who has trifled with, if not deceived, the court. The supplemental petition is strictly in aid of the decree. It does not seek to change it or to modify the principles upon which it was pronounced. It merely asks that it may be enforced, and that the amount ascertained to be due, a portion of which is purchase-money, may be paid. The Delaware & Hudson Canal Company, an indifferent stakeholder, has in its possession a sum of money due on the coal lease of this very land. The court below committed no error in awarding it to the appellee. The decree is affirmed, and the appeal dismissed, at the costs of the appellant. Morss’s Appeal.] Much that was said in Winton’s Appeal, just decided, is applicable to this case. The present appeal was to the refusal of the court below to order a sale of the Vosburg third of the Calvin Barber tract of land. The action of the learned judge was based [396] upon the ruling of this court in Ashhurst et al. v. The Montour Iron Company, 11 Casey 30, where it was held that the courts in Pennsylvania have no jurisdiction in equity to decree a sale of mortgaged premises at the instance of the mortgagee. This principle is correctly stated and is amply sustained hy the authority cited. It has no application to this case, however. This proceeding was not in its origin an application for the sale of mortgaged premises on the part of the mortgagee; on the contrary, it was a bill filed by the mortgagor to have an absolute deed declared a mortgage, accompanied with an offer to pay the mortgage-debt in cash as soon as the amount thereof could be ascertained. The plaintiff (mortgagor) succeeded in his application, and a decree was made in his favor on his bill. He now refuses to pay the debt, and the present application on the part of the mortgagee is to have the mortgaged premises sold to enforce the original decree. The appellant has a clear right to the order of sale. The power of the court to grant it rests not upon the right of a court of equity to decree a sale of mortgaged premises at the instance of .the mortgagee, in a distinct and independent proceeding, for it has no such right, 'but upon that other familiar rule of equity which was referred to in Winton’s Appeal, that where the jurisdiction of a court of equity has once attached, it embraces within its grasp all powers and remedies necessary to give effect to the equity which is invoked. “ It will dispose of every subject embraced within the circle of contest, whether the question be of remedy or of distinct, yet connected, topics of dispute:” McGowin v. Remington, 2 Jones 63. The sale of this property has become necessary to enforce the decree of the court. It does not need the aid of a court of law for such purposes. Its own power is ample, and its process sufficiently plastic to sell either a tract of land or a horse, where either becomes essential to a full and final determination of the controversy. As was well said by the learned judge below: “Equity rightfully took charge of this case in the beginning; equity has rightful charge of it now; equity will not drop it until every matter, whether it be of remedy or of a distinct but connected topic of dispute involved in the controversy, and of itself within equitable jurisdiction, has been decided.” The appellee was the one to bring his case within equitable jurisdiction. The jurisdiction thus invoked is broad enough to grasp the whole subject-matter of controversy, and the right to sell this tract of land is one of its incidents. If the appellee does not pay the money specified in the decree of January 26th 1875 within sixty days from this date, to wit: May 2d 1881, it will be the duty of the court below to order a sale of the tract of land in question in accordance with the' prayer of appellant’s petition. The order refusing such sale is reversed at the costs of the appellee.