Barclay's Appeal

93 Pa. 50 | Pa. | 1880

Mr. Justice Gordon

delivered the opinion of the court, March 1st 1880.

We cannot understand upon what theory, or principle of equity, the learned judge of the court below entertained the bill which we now have before us. Conrad S. Grove, the appellee, purchased lot No. 129 from A. Charles Barclay; the title, for aught that appears to the contrary, seems to he perfectly good, and if it were not so, a decree by a court in equity would not help it. If there is anything certain in the equity practice of Pennsylvania, it is, that a court cannot by bill bring before it parties having adverse claims to land, and between whom there are no relations of trust or contract, and settle their several titles by decree. The bill leaves us in ignorance as to the nature and character of John K. Barclay’s claim, but no matter, it was a claim to or in the realty, if anything, and whether it should assume the form of an easement, or a right in the fee, was of no consequence, as in either case the claim was of an adverse legal right determinable at law and not in equity: North Pennsylvania Coal Co. v. Snowden, 6 Wright 488; Long’s Appeal, 11 Norris 171. If it be said that Grove was in possession, and, therefore, could not bring ejectment in order to test the appellant’s claim, it may be answered, the goods of the partnership were upon the premises before his entry, and if either of the partners- .claimed to have them there of right, there was nothing to prevent the appellee from testing that right by ejectment. But more than this; we know of no power in equity, or elsewhere, by which the owner of an adverse title can be called into court, by the party in possession, to assert and defend that title, on penalty of forfeiture should he refuse so to do. This might be a very convenient and speedy method of settling title, and much might be said in its favor; but as the statute interposes and allows such claimant twenty-one years within which to prosecute his claim, we do not see how he can be compelled to assert his right, or test his claim, within a time less than this statutory period. Of course, a different rule prevails in cases of trust, for there a chancellor has full jurisdiction over the parties, and may compel a trustee not only to surrender a deed to his cestui que trust, but also to execute, if needs be, such an instrument, or he may be restrained from selling the trust property, or from doing anything prejudicial to the estate committed to his charge. In such case the court has the most ample power to settle title, and all things else, for the preservation of the trust estate: O’Neil v. Hamilton, 8 Wright 18. But John K. Barclay was not a trustee for Conrad S. Grove; whatever right he claimed was independent and adverse, hence equity had jurisdiction neither of the persons nor rights of the parties. This part, then, of the plaintiff’s bill fails, and must be dismissed from further consideration. Then, there is the further complaint, that his property was cumbered by the machinery of the defunct firm of Barclay & Barclay. But as to this, what right could a court of equity help the plaintiff to that he did not already possess ? This firm of Barclay & Barclay was the successor of Boyer & Barclay, which latter named firm held under a lease for five years from Andrew C. Barclay, the vendor of John K. and A. Charles Barclay. If, then, these parties were tenants holding over, the remedy of the appellant was ample under the Landlord and Tenant Acts; on the other hand, if they had abandoned the occupancy of the premises, he had hut to remove their goods and charge them with the expenses necessary to effect such removal. And what other or further power could a court of chancery confer on him ? Both law and equity, as far as possible, avoid vain things; they do not attempt to help a man to what he has already got.

The truth of this case seems to he, that the appellee, alarmed by Barclay’s ambiguous threat, has endeavored to interpose the decree of a court between himself and the possible consequences of the exercise of his own right. This, however, he cannot do. A trustee may seek the advice and protection of a court of equity, but such is not the right of an ordinary person. Such an one must take the risk of the assertion of his own rights, or leave them unasserted.

A faint attempt has been made to put this case on the ground of a continuing nuisance or trespass, and so to bring it within the ruling of Stewart’s Appeal, 6 P. F. Smith 413, and kindred cases. This, however, has proved a failure, since there was here no such continuing nuisance as equity would interpose to abate, and that for the sufficient reason, that the nuisance or obstruction was one from which the appellee, by his own act, could have relieved himself. Equity will not, therefore, help him to do that which he might have done of his own motion.

The decree of the court below is now reversed and set side; the plaintiff’s bill is dismissed, tu.d it is ordered that the costs be paid by the appellee.