150 Pa. 16 | Pa. | 1892
Opinion by
The petition is, by its express terms, based on the Act of May 25, 1887, P. L. 270. That Act authorizes the court to direct the issue of a scire facias by the holder of a mortgage upon petition of the mortgagor or his legal representative, or the owner of the mortgaged premises. It is in this last capac-1 ity that the petitioners claim. The mortgagor Avas Powel, and his title to the land passed to the appellant as assignee for the
It is true that in Pennsylvania the beneficial or equitable owner is regarded in law as the substantial party in interest and may use the name of the trustee who holds the legal title without his express consent, and possibly against his consent, though no decision brought to our attention has gone to this extent. Our cases hold that the suit being brought in the name of the legal plaintiff, his right alone is in question, and may be recovered upon or defended against, and the defendant is not permitted to dispute the form of the suit: Montgomery v. Cook, 6 Watts, 238; Blanchard v. Com., 6 Watts, 309; Hamilton v. Brown, 18 Pa. 87; and Ins. Co. v. Smith, 11 Pa. 120. In none of these cases, however, was any question raised as to the right of the legal plaintiff to refuse the use of his name, though it is said obiter in Ins. Co. v. Smith, that “ the court would not have permitted the 'trustee to arrest the suit.” And it was held in Campbell v. Galbreath, 5 Watts, 423, where an equitable tenant in common brought suit in the name of the trustee, that he should recover the whole of the land on the trustee’s title, and the consent of the co-tenants would be presumed. But in Ins. Co. v. Smith, the plaintiff was a mere dry trustee to hold the title to certain stock as collateral security for the payment of a debt due the equitable plaintiff; and in Campbell v. Galbreath the presumption of the co-tenants’ consent was explicitly put by Kennedy, J., on the ground that, as the suit was “manifestly an act for their benefit, it is reasonable to presume that it will be approved, ratified and confirmed, if it was not previously authorized.” There is no hard and fast rule on the subject. The recognition of the equitable plaintiff at all is by virtue of the equity powers of the court, and, though exercised under legal forms, is governed by equit.able principles. Each case as it arises must stand upon its own facts. That the party having the entire and undisputed equitable right should be allowed to control the legal remedy is clear enough, but where his right is to a result and not to ■the means; where the trust is active, and the trustee has duties dependent on his judgment; and, above all, where his trust in-
The title to the equity of redemption in the land, the ownership of the mortgaged premises which the Act of 1887 means, is in the appellant, as assignee for the benefit of the creditors of Powel & Co. and Powel’s Sons & Co. The creditors are the ultimate distributees of the assets of those firms, but they are in no sense owners of the land. What they have in the aggregate is the right to the net fund resulting from the liquidation of the assigned estate, and what each has individually is a right to an undetermined percentage of such fund when ascertained. There are two firms, and classes of secured and unsecured creditors of each. The petitioners are but a diminutive fraction of one class of creditors, and their rights cannot be determined separately and in advance by a snap judgment in a collateral proceeding. The assignee has duties to all classes of creditors, and must act with due regard to the rights of each. These can only be ascertained and settled bjr the tribunal having jurisdiction of the assignee and control of its administration of the trust.
Under what circumstances the whole body of the creditors, or even a majority of them, might be entitled to use the assignee’s name without its consent, and without first asking the court which has jurisdiction of it to direct it to proceed, we need not discuss. It is sufficient that the statute upon which the petition was founded was not intended or adapted for such a case as this, and the whole proceeding is void for want of jurisdiction.
The order directing satisfaction to be entered on the mortgage is revei 3ed, and the petition dismissed with costs.
