Schlecht's Appeal, 60 Pa. 172

Schlecht's Appeal

60 Pa. 172 | Pa. | 1869

The opinion of the court was delivered, by

Sharswood, J.

— This is an appeal from an interlocutory order or decree granting a special injunction under the Act of Assembly of February 14th 1866, Pamph. L. 28.

The plaintiffs are two of the children of John M. Schlecht, who file this bill on behalf of themselves and the other heirs at law against the defendants, two other children. The defendants are specific devisees under a will of their father, which has been admitted to probate by the register, but from his decree there is an appeal pending in the Register’s Court. The bill also avers that another child, not one of the plaintiffs, has instituted actions of ejectment for the several pieces of property devised by the will for the purpose of contesting it; and that the defendants, claiming as executors, proceeded to collect the rents, but have since been dismissed from their offices by the Orphans’ Court. It also alleges that one of the defendants, since his dismissal, demanded and received the rent from one of the tenants occupying No. 430 Girard street, which it appears from the will, a copy of which is annexed, was devised to him specifically; and as there is no one authorized to receive the rents, it prays for an injunction and receiver. The bill was filed December 7th 1867, and on December 18th an injunction was granted and a receiver appointed. We have no copies of any affidavits or testimony taken on the motion, which is usual on such applications: Eden 231; Newland 218; and which certainly ought to be filed and accompany the record on an appeal, for the Act of Assembly evidently intends that this court shall rehear and decide the case on the merits. On the 4th of March 1868 the answer of the defendants came in, denying what seems to be the only possible equity of the bill, to wit, that they claimed to collect any of the rents as executors, but admitting that they did claim the rents of the property specifically devised to them, and of which they were in possession when the injunction was granted. On the same day a motion was- made to dissolve the injunction and vacate the appointment of receiver, and on March 19th 1868 the motion was overruled.

It is impossible to sustain this proceeding in any aspect of the case. Dismissing the consideration of all formal objections, the bill discloses no equity to give the court jurisdiction. The defendants under the will and probate had a primá. facie legal right to the lands which.were specifically devised to them, and of which they were in possession; but even if they had not, if they were in possession without color of title, that adverse legal claimants should come into a court of equity and obtain an injunction, preliminary or final, to turn them out of possession, is a proceeding entirely *176unprecedented. The plaintiffs have a full and adequate remedy at law. They can recover possession by an action of ejectment, and the mesne profits either in that action or a separate action of trespass. . No authority has been adduced in support of such an arbitrary and unreasonable power in apy court summarily to turn any man out of his house or farm and appoint a receiver to collect the rents. An injunction and receiver are resorted to in any case only to preserve property in statu quo pending a contest. For any waste the law has provided a remedy by estrepement, or an injunction may be obtained if preferred, but anything like an averment of waste is not to be found in this bill. In Carron v. Ferrier, 18 Law Times Rep. N. S. 806, it was decided that where a mere legal right is in dispute, there being no privity between the different claimants, no receiver will be appointed; and in Talbot v. Hope Scott, 4 Kay & Johns. Ch. Rep. 96, it was held to be too clear for any contention that in the absence of fraud, and when there is no privity between the parties, the court will not interfere at the instance of a person claiming real property under a legal title, to grant a receiver against parties in possession. “No one has ever dreamt,” says the Yice-Chancellor Wood in that case, “ of approaching this court, however heavy the litigation between the parties, for the purpose of obtaining a receiver until he had established his right at law to possession of the whole. The court cannot interfere with a legal title of any description unless there be some equity by which it can affect the conscience of the defendant.”

It is contended that under the Act of Assembly we can only reverse the decree for an injunction, and cannot interfere with the order for the appointment of a receiver. But it is too clear for argument that the decree is a unit — the appointment of the receiver but ancillary of the injunction. Indeed, the order for the receiver is itself an injunction — it directs the tenants to attorn and pay the rents to him, giving him full authority to lease and manage the property. The appellees may well say, “ let the injunction go — we are satisfied with the residue of the decree; for practically it is the same thing.” We have no doubt of our power under the Act of Assembly to reverse the decree in toto, and accordingly so adjudge.

Decree reversed at the costs of the appellee.