10 Pa. 273 | Pa. | 1849
The proofs show that the money for which this bill is filed, was borrowed by Curtis at the instance of the congregation, and for its use;' and that it was laid out by the building committee in the erection of its church. They further show that he mortgaged the property, which he devised to the complainants, as a security for the loan; and, that the congre
It appears, also, that Curtis took, as counter-security, from some of the congregation’s trustees, a mortgage of their individual property, which his executors, or the survivor of them, neglected or refused to put in suit; and one of the questions in the cause is, whether this counter-security was exclusive or cumulative. The .law is, that a creditor may take' as many securities as he can get, the presumption being, in the first instance, that they are cumulative ; and here there is no evidence to rebut it.
Another question is, whether the corporation is bound to perform the promises of the association. "Why not? At the time of the promise, the beneficial interest and dominion was in it as a cestui que trust; and the persons who were its trustees, merely as recipients of the legal title, were bound by its acts. Having become its own trustee by their conveyance to it as-a corporation, it was bound to do whatever they were bound to do; and, having received the title to the whole property, legal as well as beneficial, it had it burthened with the equities which had before been attached to it. That the promise was originally made by a society irresponsible at law, would be an answer to an action at law, but certainly not to a bill in equity, after it had acquired a corporate existence, as a person with capacity to sue and be sued.
The statute of limitations did not begin to run till the property of the complainants had been sold; and, • as the proper period had not elapsed before the filing of the bill, that point of defence also fails.
The rest involves a question of jurisdiction; and a subordinate branch of it is, whether the complainants have a remedy at law.
Had Curtis paid the money in the first instance, he might have maintained indebitatus assumpsit against the congregation, strictly at law, and debt against Nicholas, Weeks, and Scott, on their bond, or on a scire facias on their mortgage: the complainants, who are strangers to them, could have neither, and this is conclusive, that, unless they are restricted by the scantiness of the legislative grant of equity powers to the common-law courts, they are entitled to maintain this bill.
Had they, indeed, paid the money before the land was’ sold, they might have maintained indebitatus assumpsit without privity, just as a
The remaining branch of the question depends on the extent of the ■ equitable jurisdiction conferred on the court below by the several statutes on the subject.
The act of 1836 contains no provision explicitly applicable to the subject, but the act of 1840 gives the Supreme Court, and .the Common Pleas of Philadelphia county, the jurisdiction and powers of a court of equity in cases of fraud, accident, mistake, and account; and the act of 1845 gives the same jurisdiction to the same courts, and in the same cases, whether “ the fraud, accident, mistake, or account, be actual or constructive.” The word constructive must be referred particularly to the word fraud; for, it is impossible to conceive that it can be referred, with propriety, to an accident, a mistake, or an account, which is actual where it is anything. What, then, is the fraud charged, and what the relief prayed by this bill ?
The fraud is, in the first place, the defendants’ breach of confidence, in neglecting to redeem the property pledged for their debt, as they were in conscience bound to do; and, in the second, their refusal, for defect of legal remedy, to compensate a loss which every principle of common honesty casts upon them. ' To leave a surety in the lurch, because there is no legal obligation resting on the principal, if not an actual fraud, is certainly, at the very least, a constructive one. I say a legal obligation, or a legal remedy against him ; for the remedy, by the equitable action of assumpsit, which, in such a case, was formerly held to lie with us, and would perhaps still lie, was a clumsy and inefficient one. It was, in truth, a bill in equity in the guise of an action at law, which afforded none of the facilities for the discovery of truth which are afforded by the remedy in a different form; and.that consideration alone would be sufficient to sustain the jurisdiction elsewhere. And even here, I will not say that the present case is not within the true meaning of the act of 1836, which gives “ specific relief, where a recovery in damages would be an inadequate remedy.” But the jurisdiction stands on a more solid foundation. It is established by the cases cited in the argument, that an extension of remedy at
The only plausible objection to the jurisdiction, is raised by the act of 1836 (division K.), which specifies the manner of levying an execution of the property of an insolvent corporation, and which might seem at first to be predicated of an execution on a judgment at law, not on a decree in equity; and it must be admitted, that a bill would not be entertained, unless the decree could be enforced. But to enforce it by attachment, would break down the provision for distribution among creditors. At the outset, however, that act speaks of “ all executions which shall be issued from any court of record;” and our courts of law, when sitting in equity, are still such. It is true, a succeeding section speaks of executions on judgments; but a decree in equity, though not within the letter of the enactment, is within the spirit, and, consequently, within the true intent and meaning of it. If, then, an execution, in the common-law form, may be sued out to enforce a
Decree affirmed.