77 Pa. 498 | Pa. | 1875
delivered the opinion of the court,
We discover no error in the rulings of the learned court on the trial below, and the judgment must therefore be affirmed.
It was an action of ejectment founded on the legal title of the plaintiff below, to which the defence set up was an equity growing-out of a parol exchange of land, followed by an exchange of possession and valuable improvements, which were held sufficient to take the case out of the operation of the Statute of Frauds and Perjuries. The jury found a conditional verdict, establishing the defendant’s equity and fixing a certain day on or before which the parties respectively were to file a deed, and the defendant to pay the costs.
This then, was in effect, a bill in equity by the defendant to restrain the plaintiff from proceeding at law, and a decree thereon in the defendant’s favor. The defendant not having complied with the conditions named, the plaintiff issued a habere facias posssessionem.
The defendant took a rule to set aside this writ, under which depositions were taken, which have been returned with this record. The court below discharged the rule.
The question which is presented is, whether upon a writ of error this court have the right to review the determination of the court upon the motion to set aside the execution. This has been settled by an uniform current of decisions in this court adversely to the plaintiff in error. Even before the Acts of Assembly conferring separate equity jurisdiction upon the courts, the determinations of the lower courts upon motion for summary relief on purely equi
Nor is the defendant in the position of the plaintiff in error, without a form of remedy, which will enable him regularly to obtain the decision of the court of the last resort. If his defence to the execution be legal, such as payment, release, or as we have lately held, bankruptcy, his proper remedy is by audita querela: Witherow v. Keller, 11 S. & R. 271; Keen v. Vaughan’s Executrix, 12 Wright 477. To the judgment upon this writ, error lies. But if the ground of his defence be purely equitable, and such as would entitle him to an injunction in a Court of Chancery, then upon
It is very clear, then, that upon a writ of error we cannot review the order of the court below upon the motion to set aside the execution. The habere facias possessionem was regular upon its face. The time limited in the verdict had expired, and the record showed no compliance by the defendant with its terms. .We give no opinion upon the merits of the case. It is settled beyond a question, that in such a conditional verdict, time is of the essence of the decree : Gable v. Hain, 1 Penna. Rep. 264 ; Treaster v. Fleisher, 7 W. & S. 137 ; Creigh v. Shatto, 9 Id. 84; Hewitt v. Huling, 1 Jones 35; Chew v. Phillippi, 8 Casey 205. But admitting this proposition to the fullest extent, it by no means follows that a court of equity cannot relieve in a plain case of accident or mistake.
Every one of the cases cited above go upon the mere fact that the time had expired through the supineness or neglect of the party, or at most his inability to comply. No one of them has gone the length of holding, that if the delay has been occasioned by unavoidable accident or misfortune, the party shall not be relieved, even though time is of the'essence of the contract or decree: Adams on Equity 89. That the time named is not so absolute, that it cannot be varied by the power of the court, is shown by Creigh v. Shatto, supra, where it was said that in case a writ of error is sued out, and the time expires before it is disposed of by the Supreme Court, this court, in affirming the judgment, will give further time for compliance with the conditions of the verdict. Nor does the Act of 21st April 1846, Pamph. L. 424, stand in the way, for that act was held in Chew v. Phillippi, supra, to be only declaratory of the existing law upon the subject. We pronounce no opinion upon the question,- whether the plaintiff in error by his depositions laid any sufficient ground for equitable relief.
Judgment affirmed.