| Pa. | Jan 5, 1880
delivered the opinion of the court, January 5th 1880.
The master was undoubtedly right when he pronounced this an ejectment bill and recommended its dismissal. The principal prayer, the one on which all the rest depend, is the fourth, which is as follows: “That the ownership, possession, care and control of said leaseholds, the profits therefrom and the products thereof, be decreed to the plaintiff, to the extent of his purchase of the interest of the said G-eorge S. Long therein, and that the possession thereof be surrendered to him, and that the defendants be restrained and enjoined from in any way interfering with or disturbing the same.” The plaintiff thus requires the court to determine the title to these leaseholds in his favor, and to put him in possession thereof. This, however, is what is ordinarily accomplished by an action of ejectment followed by a writ of habere facias possessionem. This, then, as is said in the case of the North Pennsylvania Coal Co. v. Snowden, 6 Wright 488, is “what is sometimes called an ejectment bill, and is demurrable, and would be, even though it had charged that the defendants had got the title deeds, and had mixed boundaries as well as prayed for a discovery, possession and account.” But the account prayed for in the bill under consideration, is but incidental to, and dependent upon the determination of title; the title must first be settled in favor of the plaintiff, or he can have no account. There is no doubt, as was held in Wilhelm’s Appeal, 29 P. F. Smith 120, but that, where an account is the primary subject of the bill (as between tenants in common), title, incidentally occurring, may b.e disposed of. But even in such case, a chancellor will not interfere if the complainant’s title be denied until he has established it at law: Coal Co. v.
But the plaintiff himself does not seem to have relied altogether upon his bill, for he brought two actions of ejectment; one for the McDermott and the other for the Jamison lease. So, by the submission, it would appear that the determination of these suits was regarded as of importance. But upon this branch of the case it is unnecessary for us to dwell, for the submission itself is the material point of this controversy, and, though the court held differently, the contention was in fact settled by the verdict. The terms of that submission are as follows : “ In the equity case between these parties, and the two ejectment cases between the same parties, by consent of counsel, the court direct an issue between R. L. Brown, as plaintiff, and George S. Long and wife, defendants, to supersede and take the place of the ejectment cases, for trial next week, and to be for trial next week; in which issue plaintiff shall allege that the undivided half of the leaseholds, described in said bill, and writs of ejectment, was at the time of his purchase thereof, at sheriff’s sale as the property of George S. Long, owned by said George S. Long and not by his wife, Mary Ann Long; and that the title thereto, held in the name of Mary Ann Long, was fraudulent and void as to the creditors of George S. Long, being held in her name with intent to delay, defraud and hinder the creditors of George S. Long. And defendants shall deny said allegations, and aver that said George S. Long, her husband, had no interest thereon. The determination of said issue to decide the issues of fact, raised in the bill in equity, as to the title of said leaseholds ; and the costs of the bill to follow the verdict in the issue now ordered.” It will be observed, that this issue was to take the place of the actions of ejectment, and that its determination was to decide the question of title raised in the bill. In other words, it was to do precisely what the trial of the actions at law would have done ; settle the preliminary question of title, without which the bill could not proceed. It follows, that this was a submission at common law, and not a mere issue for the information of a chancellor. This becomes all the more obvious when we reflect that, without the consent of the parties, the judge could not have ordered an issue embracing the actions of ejectment. This was a matter for the parties themselves; it was their submission and it was binding upon them. They thereby agreed that the verdict should settle the title to the leaseholds, and the rendition of that verdict was a determination of the actions of ejectments
It is now ordered and decreed that the decree of the court below be reversed and set aside; that the plaintiff’s bill be dismissed with costs.