11 Pa. 483 | Pa. | 1849
The opinion of this court was delivered by
There are but two points before us: 1. The obligor’s right to contest Mrs. Midford’s former ownership of any part of the land, for the surplus price of which the bond was given. 2. His right to set off the ground-rent which issued out of it, and which she was bound to pay as the assignee of the ground-tenant.
1. The legal right to recover on the bond was in the treasurer named in it as obligee, and not in those who were entitled to this money. What had the obligor to do with them or their aliquot parts of it ? A recovery in the name of the obligee without disclosing the interests of the equitable parties, would discharge him from liability to any one, and he could ask no more. The obligee would be answer? able to them as their trustee for the money when recovered ; and payment to the sheriff on the foot of an execution, would be enough for all parties. In the analogous case of Coxe v. Blanden, 1 W. 533, a stranger in possession was not suffered to set up as a defence to an ejectment by the grantee off a trustee, that the grant was in fraud of the trust. In a pure action at law, a legal .title is always a ground to recover, and no more ought to be set out in the pleadings ; yet, in some instances, a fiduciary interest has been gratuitously traced from the legal plaintiff which invited, as might have been expected, the defendant there as here, to meddle with questions that did not belong to him, and involved the plaintiff in unnecessary difficulties ; but this jumbling together of legal and equitable titles in the same action, springs not from any legal necessity, but from the pleader’s ignorance of the nature of an action at the common law. By this courts, however, these fiduciary interests have always been disregarded in the pleadings, as they were in Armstrong v. Lancaster, 5 W. 67, and Pierce v. M’Keehan, 3 Barr, 136; the latter of which shows how perilous it is for a plaintiff to suffer himself to be decoyed into an issue on his equitable right to bring the action. If the beneficial ownership were the ground of it, a bond for the use of several could not be sued without the consent of all; or if it were sued at the instance of one for his separate share, as only one action of debt can be maintained on a bond, and one judgment and execution be had, the common security would be exhausted by the first beneficial claimant who put the remedy on it in motion. To prevent this, in the case of certain official bonds, the legislature allowed a cautionary judgment to be rendered for the penalty, the
2. The ground-rent could not be set off, for a very sufficient reason. There was no set-off at the common law; and our statute allows it only between parties who stand in privity of contract. “If two or more dealing together,” it is said, “be indebted to each other on bonds, bills, bargains, promises, accounts, or the like, and one of them commences an action in any court of this province, if the defendant cannot gainsay the deed, bargain, or assumption on which he is sued, it shall be lawful for such defendant to plead payment of all or any part of the debt or sum demanded, and give any bond, bill, receipt, account, or bargain in evidence.” What dealing together had the obligor and obligee in relation to this ground-rent? The assignee of a bond, or the endorsee of a bill or note, may doubtless set it against a demand by the obligor or drawer without having had any transaction with him; but such assignee or endorsee stands in the place of the assignor or endorser as the transferree of a right growing out of a personal responsibility, with all the qualities adhering to it which were attached to it in the hands of the original holder of it. Fot so the grantee of a ground-tenant’s estate.in fee-simple, who, instead of acquiring an interest in the grantor’s right against the ground-landlord, incurs a liability to him, founded not upon privity of contract, but on privity of estate. The assignment of even a lease for years, was not clogged at common law with liability.to an action of covenant by the landlord for payment of the rent; for no man who has not sealed the deed can be thus sued. The assignee’s liability arises, not from a
Judgment affirmed.