German-American Title & Trust Co. v. Shallcross

Opinion by Mr. Justice Heydrick, At a very early date resort was had in Pennsylvania to the action of ejectment as a remedy for the enforcement of equitable rights in respect to real estate. This was a necessity, as has been frequently said, growing out of the want of a court of chancery, or the possession by the common law courts of such equitable jurisdiction as has since been conferred upon them. But, although it was broadly declared in Peebles v. Beading, 8 S. & R. 484, that wherever chancery would execute a trust or decree a conveyance, the courts of this state, by the instrumentality of a jury, would direct a recovery in ejectment, it was not until the announcement of the judgment in Seitzinger v. Ridgway, 9 Watts, 496, that the true character of the action when employed as an equitable remedy was fully understood. The point actually decided in the latter case was, that one verdict and judgment in an equitable ejectment was conclusive as to the title, but the reasoning upon which that decision was based proved that such judgment has all the conclusiveness of a decree in chancery as to every other matter litigated. This is a legitimate result of the substitution of the common law action for a bill in equity. Now, if Francis Mawhinney, instead of bringing his action of ejectment in the common pleas No. 1 of Philadelphia, had filed á bill in equity, averring that when his property was about to be sold by the sheriff he applied to Shalleross for counsel and assistance; that Shalleross advised him to let the sale go on, and promised to purchase the property for him; that, relying upon such advice and promise he made no further effort to save it, but permitted Shalleross to obtain the legal title for a nominal sum, and that the rents and profits had reimbursed Shalleross for his outlay and trouble: and if the latter had [495] answered, admitting all the averments of the bill except that he had been fully reimbursed, and averring that he had paid out in ease of the estate moneys in excess of the rents received, it cannot be doubted that it would .have been decreed, among other things, that an account be taken of the rents so received, and of the moneys so paid out, and that the balance, whichever way it might have been found, would have been decreed to be paid by the party against whom it was found to the other. And it is as little to be doubted that'the decree so made would have been alike conclusive as to the rents received and as to amounts paid out in ease of the estate, so that neither party could, in any future action, call the other to account in respect to any of the matters so adjudicated. To state this proposition is to call to mind the rule tersely expressed by Chief Justice De Grey, in the Duchess of Kingston’s Case, 2 Sm. L. C. 784, in respect to the conclusiveness of judgments as evidence,, because the decree as to the balance would have been directly upon the amount of rents received and the amount of money paid out. And it could not have affected the conclusiveness of the decree in this respect if the defendant had ineffectually denied the trust, to enforce which the suit was brought; and at the same time averred the expenditure of money for the benefit of the estate. Such denial might have cost him the loss of credit for all betterments, at least, if the cause had-been decided by a chancellor less benevolent than the learned judge before whom the ejectment was tried, as may be inferred from Bleakley’s Ap., 66 Pa. 187 ; a fortiori, it could not have put him in a better position in respect to the matters litigated than he would have occupied if he had frankly admitted the trust. Now, what might have been done in the equity side of the court is precisely wbat was accomplished by the action of ejectment. The record does not, indeed, show that the sum adjudged to be paid by the plaintiff to the defendant as a condition precedent to the recovery of the land was the result of an accounting in respect to the rents received and disbursements made by the defendant, as it would have shown if the proceeding had been by bill in equity. But this is immaterial,' for, -whenever a record is general, that is to say, when it does not show what particular matters were litigated, it is competent [496] to show by extrinsic evidence what those matters were: Meyers v. Hill, 46 Pa. 9; Treftz v. Pitts, 74 Pa. 348. This was done in the present case, and the master found that the defendant gave in evidence at the trial, of the ejectment the several bonds, mortgages and ground rents, which are the subject of the present controversy “for the purpose of receiving credit therefor in the amount of the conditional verdict in case the jury should decide the main issue in favor of the plaintiff.” He could not have found otherwise from the evidence before him. The testimony of Judge Biddle, before whom the cause was tried, of Mr. Dougherty, who was counsel for the plaintiff, of the plaintiff’s son, and of several of the jurors, and the stenographic report of the former trial, prove beyond controversy that the defendant not only gave these bonds, mortgages and ground rents in evidence, but that he presented to, and, under the direction of the court, sent out with the jury a “statement of the cost of the properties ” in which the mortgages and ground rents were included along with such other items as purchase money paid to the sheriff, taxes and improvements, and that the trial judge instructed the. jury that they should give the defendant credit for the different sums included therein, if they found for the plaintiff as to the land. The jury having found “for the plaintiff on his tendering to Shallcross the sum of |2,293.02,” it is further significant of what was thereby adjudicated that there does not appear to have been any evidence to justify the condition annexed to the verdict, except the statement referred to, and the evidence by which it was verified; that no distinction was made in the statement or charge of the court between the mortgages and ground rents, and the other items of “the cost of the properties,” and that, when the defendant offered in evidence an assignment to himself of the ground rents, he expressly offered it as “ an extinguishment” of the ground rent. The conclusion is, therefore, irresistible, that the defendant elected to treat the ground rents and mortgages as merged in the legal estate acquired by him at the sheriff’s sale, and claim the money invested in them as so much money paid out by him in ease of the estate which he would be entitled to recover before he should be required to restore possession to his cestui que trust. The verdict and judgment in the action of ejectment must, therefore, be treated [497] as an adjudication that the ground rents and mortgages were merged, and that there was due to the defendant from the plaintiff the sum of $2,293.02, as the result of an accounting in respect to the rents received and the several items contained in the plaintiff’s “statement of the cost of the properties.” The plaintiff having paid that sum, it was the duty of the defendant to satisfy the mortgages of record, and execute and deliver deeds of extinguishment of the ground rents. But the common law side of the court has no appropriate process by which it can enforce such duty, and hence the discharge of the rule granted in the ejectment suit for that purpose was conclusive of nothing. This bill was the proper remedy: Treftz v. King, 74 Pa. 350. The liability of the defendant to account in this suit for the rents received by him subsequent to the trial of the ejectment not being controverted, the finding of the master upon that branch of the case requires no discussion. The decree of the court below is reversed at the costs of the appellee; the bill of the plaintiff is reinstated, and the record is remitted with instructions to the court below to enter a decree granting the relief recommended by the master.