fifty-first judicial district, specially presiding,
Petitioners in this case were the owners of a tract of land in Montgomery County which was condemned by the Commissioners of Valley Forge Park on July 23, 1937. The report of viewers assessing petitioners’ damage at $27,622 was confirmed by the Court of Quarter Sessions of Montgomery County on August 16,1940. On July 21,1941, Appropriation Act No. 31A was enacted appropriating the sum of $85,000 to the Department of Forests and Waters for the use of Valley Forge Park Commission for payment of land acquired by the commission. Petitioners then requested G. Albert Stewart, Secretary of Forests and Waters, to issue a requisition on the Auditor General, F. Clair Ross, to draw a warrant on the State Treasurer, G. Harold Wagner, to pay to petitioners out of said appropriation the sum of $27,622 with interest thereon from August 16, 1940, to the date of payment. Upon the refusal of the secretary to comply, petitioners filed this petition for a writ of alternative mandamus.
Defendants have filed a return to the writ of alternative mandamus specifically admitting the condemnation of petitioners’ land; the confirmation of the viewers’ report assessing petitioners’ damage at $27,622; the appropriation of $85,000 under the Act of July 21, 1941, no. 31A; the request to the Secretary of Forests and Waters to issue the requisition; and the assignment of the judgment to Robert B. Scott, the use-petitioner. Defendants deny that under section 1501 of The Fiscal Code of April 9, 1929, P. L. 343, 72 PS §1501, it is the duty of the Secretary of Forests and
Petitioners have filed a demurrer to the return which is now before the court for adjudication. Two questions are raised by the pleadings: First, are petitioners entitled to interest on the award of viewers against the contention of the Commonwealth that it is entitled to a credit against interest accrued on the award for the amount of the net income received by petitioners for the premises or the net rental value thereof from the time title passed to the Commonwealth on July 23, 1937? Second, may petitioners have a writ of mandamus to compel payment of the award of viewers with interest thereon?
The contention of the Commonwealth that it is not liable for interest on the award of viewers because the award made no mention of interest cannot be sustained. Under the Act of April 25, 1929, P. L. 777, as amended by the Act of March 26, 1931, P. L. 10, 26 PS §43, it is
The Commonwealth is also in error in its contention that it is entitled to set off its claim for rent or compensation for use and occupancy of the premises from the date upon which title passed to the Commonwealth on July 23, 1937. The report of viewers assessing the damage of petitioners was filed and confirmed by the Court of Quarter Sessions of Montgomery County on August 16,1940. The damages awarded to petitioners by this report included the amount of damages ascertained to be due as of the date of the appropriation of petitioners’ property, and also compensation for delay in payment from the date of the appropriation to the date of filing the report: Opening of Parkway, 267 Pa. 219, 224 (1920); Mengell’s Executors v. Mohnsville Water Co., 224 Pa. 120, 127 (1909) ; Commonwealth v. Stephens et al., supra. As against the claim for compensation for delay in payment, the Commonwealth was entitled to set off its claim against petitioners for the use and occupancy of the land up to the date of filing the report: Pattison v. Buffalo, Rochester & Pittsburgh Ry. Co., 268 Pa. 555 (1920). The award of the viewers, however, as finally confirmed, concluded the rights of the parties as of the date of the filing of the report: Commonwealth v. Stephens et al., supra. The effect of the award of viewers in this respect is the same as the effect of a verdict of a jury in the court of common pleas: Opening of Parkway, supra; Run-
Nor can the Commonwealth set off its claim for use and occupancy of the premises since August 16, 1940, against petitioners’ claim for interest. The claim of petitioners is founded upon the award of viewers which has become a judgment of the Court of Quarter Sessions of Montgomery County. As we have heretofore shown, their right to interest thereon is merely an incident of that judgment or award, made so by the Act of April 25, 1929, P. L. 777, as amended. The claim of the Commonwealth is an unliquidated claim based upon use and occupancy of the land. As said in McKee v. Verner, 239 Pa. 69, 75 (1913) :
“If there is anything settled in this jurisdiction it is that a debt not in judgment cannot be set off against a judgment. As said by Mr. Justice Agnew in Thorp v. Wegefarth, 56 Pa. 82, 85: ‘To a judgment there can be no set-off of a debt not in judgment. One judgment can be set off against another, through the equitable powers of the court, but to a judgment ripe for execution, there can be but one answer, to wit, payment pure and simple’.”
It is clear, therefore, that the Commonwealth cannot sustain its claim of set-off. After petitioners’ land was appropriated under the power of eminent domain, their right to any use of the land ceased, and their claim for damages was substituted. The Commonwealth then had the right to use the land, or to rent it to petitioners or others, as in Commonwealth v. Stephens, supra. But in the absence of an agreement limiting its liability for interest on the award, it cannot set off an unliquidated claim for use and occupancy. Nothing in Pattison v. Buffalo, Rochester & Pittsburgh Ry. Co., supra, is contrary to this conclusion as
What we have heretofore said determines the second question: whether mandamus is the proper procedure to compel payment of petitioners’ award with interest thereon. Petitioners have no claim which needs to be settled or adjusted, as this was done before the Court of Quarter Sessions of Montgomery County, and petitioners’ original claim has been reduced to judgment-to which the allowance of interest is an incident. Consequently, there is no need for petitioners to proceed under section 1003 of The Fiscal Code of April 9,1929, P. L. 343, for adjustment and settlement of their claim. In the words of Mr. Justice Agnew, supra, there is now “but one answer, to wit, payment pure and simple”. Even if petitioners should follow the Commonwealth’s suggestion that the claim for interest be submitted under section 1003 of the code, the adjudication of the Auditor General and State Treasurer would not guarantee to petitioners payment of their claim.
In this case there is a clear legal right in petitioners and — no other defense having been asserted — a positive duty of defendants to be performed: Chilli v. McKees-port School District et al., 334 Pa. 581 (1939). The use of a writ of mandamus to compel payment under these circumstances has long been recognized: Commonwealth ex rel Bell v. Powell, 249 Pa. 144 (1915); Myers et al. v. Borough of South Bethlehem, 149 Pa. 85 (1892). Petitioners’ demurrer must be sustained and a writ of peremptory mandamus directed to issue.
And now, December 17, 1941, petitioners’ demurrer to the return to the writ of alternative mandamus is sustained and it is directed that a writ of peremptory mandamus issue directed to the Honorable G. Albert Stewart, Secretary of Forests and Waters of the Commonwealth of Pennsylvania, directing him to file a requisition on the Honorable F. Clair Ross, Auditor