209 Pa. 177 | Pa. | 1904
Opinion by
Charles A. Scott, defendant, with Jones and Tappan, plaintiffs, were tenants in common of a coal lease on certain coal land in Carbon township, Huntingdon county. Scott alleging he was also a partner with Jones and Tappan in operating the lease, on February 11, 1903, filed a bill in equity for an account and appointment of a receiver for the partnership. On hearing the court below declined to find that a partnership existed and dismissed plaintiff’s bill. Thereupon, the parties compromised all matters in dispute between them, by which agreement, dated March 16, 1903, Jones and Tappan as
From this decree, Tappan, one of plaintiffs, brings this ap
We do not think formal notice to Scott was necessary as a preliminary to the entry of a valid judgment on the power of attorney; the parties made their own contract and in it made no provision for such notice. Doubtless, if plaintiffs had given such notice and it had not been heeded by Scott, he would then have been effectually barred from a favorable decree in the court below, for he would have had no equity to move a court. Plaintiffs however took the risk of the subsequent interposition of a court of equity, when they relied on the strict wording of the writing and entered the judgment. But this did not oust the jurisdiction of equity on a proper case shown.
The obvious intent of this agreement must be noted in reaching an equitable decree. Scott was to pay $20,000 ; before executing the writing he paid $6,000; then he gave the written obligation to pay $14,000 more. To secure this last obligation he executed a power of attorney, authorizing a confession of a personal judgment for the unpaid purchase money at date of any monthly default and also a judgment in ejectment for the land. Clearly, 'the object both parties had in view was security for the payment of the money; the reclamation of the land by the vendors was only incidental and secondary to the main purpose of securing payment of their money.
They had two strings to their bow, a power to take judgment for the money which they could enforce against any property Scott owned, a special power to confess judgment by which they could repossess themselves of the land. The plaintiffs on default in payment of the fifth installment confessed judgment in ejectment and took possession of the land. Concede, that the adoption of this method followed literally the law of the written contract, yet it was an attempt to enforce against Scott a right to appropriate his land in payment of a money obligation, by a proceeding in which he was not heard and which in its nature was a forfeiture, a method in the eyes of a court of equity, always odious. This at once gave to him
It is clear to us, there is no error in the decree, therefore it is affirmed on the long line of cases from Youst v. Martin, 3 S. & R. 423, down to Jones v. Backus, 114 Pa. 120.
Decree affirmed.