121 Pa. 467 | Pa. | 1888
This case is somewhat anomalous. The plaintiff is the holder of a mortgage upon a house and lot in the city of Erie. The defendant company, acting under the authority of the railroad laws of the commonwealth and an ordinance of the city of Erie, has built a single track railroad along the centre of Nineteenth street, on which the mortgaged property fronts. The complaint of the plaintiff is, that the value of the property has been depreciated by the building of the railroad along the street, and that his security as a mortgage creditor has been impaired to the same extent. No effort has been made to collect the debt or to bring the mortgaged premises to sale, so as to determine what amount could be realized out of it, but this suit is brought to recover in damages the amount of the alleged depreciation in the value of the property.
From an examination of the testimony we learn that the plaintiff is the administrator of W. Hermle, deceased, who died in 1872. At the time of his death, Hermle was the owner of the equitable title to the lot in question, and had erected the dwelling-house now standing on it. He left a widow to survive him, but so far as the evidence informs us, no issue. Soon after his appointment as administrator Knoll made his application to the Orphans’ Court for leave to sell the house and lot at public sale for the payment of debts. Leave was granted, the sale made and Mrs. Hermle, the widow, became the purchaser at the price of $2,000. She paid no part of the purchase-money, but gave her bond and mortgage for the amount of her bid, and this is the bond and mortgage which Knoll alleges is impaired in value by the act of the defendant in building its road along Nineteenth street. The mortgage was made in 1873, the railroad was located in 1881, and this suit was brought in 1887.
Our first question is, whether the amount due upon the mortgage is greater than the present value of the property bound by it, after providing for a prior incumbrance. If it is not, the plaintiff has nothing of which to complain. The question is, not whether the property is worth less than it was when the mortgage was taken, but whether it is worth less than the plaintiff’s debt. It is the injury to him, not that sustained by the lot owner, on which his right to recover must rest.
But, while indicating a sufficient reason for affirming the judgment in this-case, we have no inclination to avoid the consideration of the precise point on which the case turned
The title to the property injured is in Mrs. Hermle, the owner. The plaintiff is a mortgagee, out of possession; a holder of an incumbrance upon the title merely. As a lien-creditor he has the right to prevent the depreciation of the property, bound by his judgment or mortgage, by the commission of waste thereon. If the owner, or a stranger to the title, attempts the removal or destruction of timber trees, of the minerals, or the buildings, he may interfere by writ of estrepement or injunction to prevent it; but, subject to this right of the lien-creditor to stay waste, the owner has by virtue of his ownership the jus disponendi' of the property, including everything upon the surface or underlying it. He may lawfully sell his timber or his buildings, and if the vendee is allowed to remove them, a good title will vest in him, provided always that the sale be fairly and honestly made. The creditor has the right to interpose, if he will, but if he does not do so, the severed articles pass out from under his lien when they pass beyond the lines of the property on which his lien rests. While on, or affixed to, the freehold, he may insist that they shall so remain; but if severed and removed, his right to them by virtue of his lien on the freehold is gone. Vigilance is the duty of a creditor: Vigilantibus et non dormientibus jura subveniunt.
But the injury complained of in this case is not waste. The defendant company has not entered upon the lot covered by the mortgage or removed anything from it. It has entered upon a public highway in a lawful manner and in the exercise of the right of eminent domain. Its entry could not have been prevented by the plaintiff, nor its work arrested by a writ of estrepement or injunction. The plaintiff alleges that the value of the property bound by his lien has been diminished by the construction of the railroad. So it might have been by the erection of a factory or a tavern on a neighboring lot, or by a change in the use or occupancy' of the buildings near it; but, so long as there is no entry upon the lot bound by the
In this case, the owner has settled with the defendant and given a release of damages. There is no allegation that the settlement was secured by fraud on the part of the defendant, or made by the owner with a purpose to defraud the plaintiff. The plaintiff brings his suit upon a right of action which he alleges rests in him as a lien-creditor. Notwithstanding the settlement and release by the owner, he claims to be entitled to recover his damages, as distinguished from the damages of the owner. The right of action asserted is not that of the owner of the property, but one independent of, and additional to, that which resides in the owner. If this position is tenable for the plaintiff it would be equally so for any number of lien-creditors of Mrs. Hermle. ■ A settlement with or a recovery by one, would not estop another from taking the chances of a more .favorable verdict. To state the position is a sufficient argument against its soundness.
Perhaps the case that comes nearest to our question is In re Road in Upper Dublin and Whitemarsh Township, 94 Pa. 126. A public road had been laid out over a farm in Montgomery county, of which Bissinger was owner but upon which Nash held a purchase-money mortgage for $10,000. Nash claimed to be entitled to the damages sustained by the opening of the road, as the holder of the mortgage. On the other hand, Bissinger, as owner, released them. The Court of Quar
In the case at bar, if appraisers had been appointed in lieu of the settlement made between the parties, they would have made report, not only fixing the amount of the damages, but stating the fact that the plaintiff was the holder of an unsatisfied mortgage, and recommending the money to be paid into court for the benefit of the parties entitled. If this had been done, the plaintiff might have asked that the money be paid to him upon his mortgage, but if the appraisers had- made no mention of the mortgage and their report had been approved and the money paid to Mrs. Hermle without the intervention or objection of the plaintiff, such payment would have been as to the defendant a final disposition of the claim for damages. An agreement upon the amount of damages made with the owner in good faith, followed by payment to, and a release by him, is equally conclusive upon the claim.
Judgment affirmed.