Yonkers & Co. v. Warden

Opinion by Porter, J., If this proceeding can properly be regarded only as a petition for a decree for extinguishment of a ground rent under the act of February 26, 1869, then the bill was doubtless rightly dismissed on the authority of Haines’s Appeal, 73 Pa. 169. "We are not furnished with the testimony taken in the cause but only with the pleadings and the findings of fact by the court below. These clearly show that the bill was more than a mere petition under the act. Its purpose was to remove a cloud upon the plaintiff’s title, to utilize testimony which might not be obtainable if delayed in taking, to determine the existence or nonexistence of an apportionment of a ground rent, and to ascertain whether in fact the ground rent was extinguished as to the plaintiff’s property either by agreement or by lapse of time. • The learned judge of the court below finds as fact from the testimony taken, that there was an apportionment of the ground rents, and that “ the evidence also warrants a finding that the parties on each side knew of and understood this arrangement and apportionment.” He further finds that “ the plaintiffs are in possession. They cannot maintain a suit at law against the defendants. The parties having knowledge of the business and transactions are but few. A very few years may by death, removals or various circumstances, make it difficult to obtain the testimony and proof of some of the facts now testified to. It is a cloud on the title.” These findings take the case out of the ruling in Haines’s Appeal, supra. There the Supreme Court held to be unconstitutional, the act of April 28, 1868, authorizing the court, upon petition, on due proof that a ground rent has been extinguished by payment or presumption of law, to decree extinguishment. The act of April 28, 1868, is practically the same as the act of February 26, 1869, now under consideration. The ground upon which the decision in Haines’s Appeal is based is that the act is in derogation of the right of trial by jury. But Mr. Justice Sharswood, while saying, “ An act of assembly cannot vest in a tribunal like a court of chancery acting without a jury, the power to determine upon the legal rights of parties,” qualifies by continuing “ unless there exists some equitable ground of relief.” He further says: “As to the power which has been [404] principally relied on, to order deeds or instruments to be delivered up and canceled, there is always some ground of equity upon which the chancellor has interposed, besides the mere fa.ct that the instrument cannot be enforced at law. There must be some danger of future litigation when the facts will be no longer capable of complete proof or have become involved in the obscurity of time: 1 Story’s Eq. Jur. sec. 705. This is the reason upon which a bill quia timet may be sustained.” Thus has the great jurist left open the door for proceedings such as the one at bar. The learned court below felt constrained to dismiss the bill because of Haines’s Appeal, supra, but we think he has overlooked the distinction which brings this case into accord with some of the later cases, otherwise in apparent conflict with it. Thus the writer of the opinion in Haines’s Appeal, himself says in Stewart’s Appeal, 78 Pa. 88: “The best expression of the rule, as it seems to me, is to be found in an opinion of the Supreme Court of Massachusetts in Martin v. Graves, 5 Allen, 601, by Mebrick, J. ‘ Whenever a deed or other instrument exists which may be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest and he cannot immediately protect or maintain his right by any course or proceeding at law, a court of equity will afford relief by directing the instrument to be delivered up and canceled or by making any other decree which justice or the rights of the parties may require.’ ” In Hull’s Appeal, 113 Pa. 510, 515, Mr. Justice Gbeeh says that “ our own cases show that we have adopted and fully recognized the equity jurisdiction to remove clouds upon title as fully and as broadly as it is described in the equity text books and decisions.” See also Kennedy v. Kennedy, 43 Pa. 413; Slegel v. Lauer, 148 Pa. 236, 248. No further citation of authority on this point need be indulged in. The plaintiff being in possession of the real estate and being able to present proof sufficient to induce the court below to the conclusions he has expressed, comes with a cloud on his title which he has the right to have removed by decree, else were he without remedy to have the title to his property not only good, but made marketable as well. [405] While this equity jurisdiction should not be exercised save in a clear case, we are of opinion that the findings of the facts by the court below warrant the entry of a decree declaring the ground rents to have been extinguished as to the property of the plaintiffs in the bill. The decree of the court below is therefore reversed, the bill is reinstated and the record remitted in order that a decree may be entered in accordance with the views herein expressed.