36 Pa. Super. 487 | Pa. Super. Ct. | 1908
Opinion by
This is an appeal from a decree sustaining defendants’ demurrer and dismissing the plaintiff’s bill. The opinion filed by the learned judge below gives a good understanding of the issues raised by the demurrer, and renders unnecessary a detailed restatement by us of the averments of the bill. Appellant’s counsel are technically right in saying that the fact that the court struck the scire facias case from the trial list could not be taken into consideration upon the hearing of the demurrer, because that did not occur until after the demurrer was filed. But so far as the bill is to be regarded as a bill of discovery in aid of that action at law, the fact that it had not been stricken from the trial list at the time the bill was filed, is immaterial. The scire facias was upon a judgment which was a lien upon the land when the plaintiff in the bill acquired his leasehold estate therein. He was brought into the case as terre-tenant, and set up a defense which, if good, was available in that case. If he needed the aid of a bill of discovery in making his defense, then was the time to present it. Instead of doing so, he paid the judgment, debt, interest and costs, and this appears in the bill itself.- It is stated in the brief of argument that he paid under protest, having first demanded an assignment of the judgment, but we find neither of these facts averred in the bill. Having thus terminated the action at law, a bill for discovery only would not lie: Cardale v. Watkins, 5 Madd. Rep. 19; Collom v. Francis, 1 Pars. 527; Story’s Equity PL (10th ed.) sec. 321. For the same reason, if for no other, the plaintiff in the bill was not in position to de
But it is claimed that the circumstances under which he paid the money were such that he is entitled to relief in equity. The material averments upon that subject are that judgment in the scire facias having been entered by default against the defendant in the judgment, and the other terre-tenant, but not against him, and execution having been issued thereon, upon which they waived condemnation, he was compelled to pay in order to preserve his possession of the premises. But as he had been made a party to the scire facias and had set up a defense, it is not clear how his right could be prejudicially affected by an execution against the other parties to the suit, issued in advance of a hearing upon and an adjudication of his defense. Nor, even if it be conceded that the course of procedure after judgment against the defendants in the original judgment and the other terre-tenant tended to prejudice his interest, is it apparent that he did not have an adequate remedy by application to the court in the very case to which he had been made a party, to restrain or control the execution until his defense could be heard. But, so far as appears, he did not ask the aid of the court in any form. It is also shown by his .original and supplemental affidavits of defense, which were made a part of the bill, that he paid the money with full knowledge of all the facts he now sets up as ground for equitable relief. Having paid the money under such circumstances, he must be deemed to have elected to rely on such remedy as the law affords him to recover it back. We do not intimate that the law affords him a remedy; that question is not before us. It is enough for present purposes to show that his bill does not disclose a payment of money under such circumstances of fraud and duress as entitles him to the aid of a court of equity to recover it back. In arriving at that conclusion we have not overlooked what the learned counsel have said upon the subject of demurring to a bill alleging fraud as a ground of relief. What the purchaser of the land attempted was to prevent a merger of the judgment (which was a lien when Sherman leased) with the fee, by having it assigned to a third
The second prayer of the bill is that the defendant be enjoined and restrained from proceeding “before any justice of the peace,” or otherwise, to recover possession of the premises until the termination of the lease, so long as the plaintiff promptly pays, when due, the rent secured thereby. The relief here prayed is based on matters independent of the proceedings on the judgment above referred to. The issue that would be presented by a proceeding before a magistrate is whether the landlord, or one standing in his place, can eject a tenant before the expiration of his term, he not being in default in any way. Surely it cannot be said that the question presented would be a complicated one and, therefore, a court of equity would be justified in interfering upon the ground of the inadequacy of the statutory remedy. The decision in Kaufmann v. Liggett, 209 Pa. 87, has no application to such a case. If equity has jurisdiction, it is upon the ground and subject to the limitations thus stated by Chief Justice Mitchell in Denny v. Fronheiser, 207 Pa. 174: “The jurisdiction of equity to restrain actions at law is too well established to require discussion, and there is nothing in the act of 1772, to give proceedings under it any immunity from such restraint in a proper case. But the limitations of interference by equity are as well settled as the jurisdiction itself. The case must fall within some one or more of the recognized categories of fraud, accident or mistake,” etc. But as was said in that case, so it may be said in this case, the allegations of fraud scarcely come up to the required standard. The charges in both cases are somewhat similar. It is charged in the present case: “that.your orator is informed, believes and upon such information avers
The decree is affirmed at the appellant’s costs.
