Gribbel v. Brown

202 Pa. 10 | Pa. | 1902

Opinion by

Mr. Justice Mestrezat,

This is a bill for an accounting against a mortgagee in possession. The learned trial judge has found the facts of the case and concedes that were it not for alleged champertous relations between the plaintiff and Mrs. Alyce M. Harris, from 'whom he purchased the real estate in question, the defendant would be liable to account in this proceeding. The judge holds the plaintiff to be guilty of champerty for the reason that he had taken title to the premises for the purpose of carrying on a rival business thereon and for the further reason that by a written contract with Andrew Harris, he agreed to furnish Harris money to prosecute a suit against Mrs. Brown, the defendant here, to obtain control of the gas meter business and the use of the name of Harris Brothers &'Company under which it had been conducted, so that he (the plaintiff) might secure the property and business name of the firm. It appears that in pursuance of that agreement, Harris instituted a suit against Mrs. Brown at the same time this suit was brought by Gribbel against her, and both were heard and determined together by 'the same judge. Tins fact unquestionably accounts for the conclusion of the judge that the transaction involved in this litigation is champertous. His conclusion, as appears from his finding, is based upon the evidence in the two cases and is not confined to the testimony in this case.

We are relieved from any discussion or a determination of the question of champerty as affecting this case. There was no evidence whatever produced before the court on the trial by which a charge of that character can be sustained. It may be conceded that the plaintiff is a mere volunteer and that no consideration passed to Alyce M. Harris when she conveyed the premises to Gribbel. This, however, the learned judge admits would not, under the facts found by him, deprive the plaintiff of the right to an accounting in this suit. The allegation that Gribbel purchased the property to prevent competition in his business is not sustained by the evidence in this case. He might have had that object in view but it is not disclosed by the testimony in the case nor does it appear that such was the purpose of Mrs. Harris in the transfer of the title to the premises to Gribbel. The purchase of the real estate, so. far as the evidence discloses, was an ordinary business venture on the part of the plaintiff which he might very properly engage in without being justly subject to criticism. If there is any part of the purchase money yet duo Mrs. Harris, the grantor, it is a matter that concerns her and not the defendant in this case.

It is apparent, however, that the principal and controlling reason that led the learned judge to condemn the purchase of the real estate as champertous was the “ remarkable agreement ” between Gribbel and Andrew Harris which was before him in the case of Harris v. Brown, post, p. 16. That case is now here for review and from it we learn the contents of the agreement. There are two most potent reasons why that contract should not have been considered in this case and can have no weight in determining the issue here against the plaintiff, viz: (1) it was not offered in evidence in this case by either party, and (2) upon its face it appears that it provided lor and related solely to an action to be brought against Mrs. Brown to enforce the alleged rights of Andrew Harris to the property and firm name of Harris Brothers & Company, so that Gribbel might purchase said property and acquire the exclusive right to use the name. The contract between Andrew Harris and Gribbel in no way refers to or affects the sale and conveyance of the real estate to the plaintiff. Notwithstanding these facts, the opinion of the learned judge shows that he considered that contract as though it were in evidence in this case and permitted it practically to determine the issue in favor of the defendant.

While this case was tried with Harris v. Brown, the learned judge should have considered each separately on the evidence produced in the respective cases. Had he eliminated the testimony in Harris v. Brown from this cause, he would have arrived at a different result. We fail to find any evidence to support the conclusion of the court below that the plaintiff is not entitled to relief in this suit.

The finding of the trial judge shows that since May 31,1895, Mrs. Brown, the defendant, has been in possession of the premises and now holds them as a mortgagee in possession. The plaintiff, therefore, having the legal title to and being the owner of the real estate, has a right to maintain this bill for an accounting and thereafter the right to redeem the property on payment to the defendant of such sum, if any, as may be found to be due to her.

The decree of the court below is reversed, and the bill is reinstated with a procedendo,