Stockton's Appeal,

Read

Notebook

| Pa. | Jan 10, 1870

The opinion of the court was delivered,

by Read, J.

— L. Coates Stockton was in his lifetime tenant or lessee of the premises 216 Market Street, an'd during his occupancy, they were sold by the sheriff, under proceedings to foreclose a mortgage thereon, which was a lien prior in point of time, to the lease under which the decedent was tenant.

The property was sold by the sheriff on the 5th day of October 1863, purchased by George A. Twibill, and the sheriff’s deed to him was acknowledged on the 7th day of March 1864. The purchaser served a notice upon decedent to give up the possession within three months, and on the 6th of June 1864, the said decedent gave up possession of the premises.

Before the auditor, Mr. Twibill claimed $800, which was rejected, and upon exceptions filed to the report, the court sustained the same and decreed the payment of $300, with interest from June 6th 1864, to the said George A. Twibill for the use and occupation of the premises from the 7th March 1864.

From this decree this appeal is taken. On the 8th of March 1864, Twibill could have commenced ejectment in which he could have recovered the possession and the mesne profits. If the decedent had held over after the expiration of the three months, upon proceedings under the Act of Assembly, before two justices or aldermen he would have recovered the damages assessed by the jury. In the one case it would be called mesne profits, in the other damages. But the decedent stood neither ejectment, nor the summary proceeding before the aldermen, but quietly surrendered the possession.

For this occupation and use of the premises, the decedent was *63undoubtedly bound to make compensation, and whether this be called mesne profits, or damages, or could be recovered in an action on the case for use and occupation, is entirely immaterial, for the Orphans’ Court is a court of equity, and looks only to the justice of the demand, and not to the form in which it is presented. The decree reaches the real justice of the case, and it is therefore affirmed at the costs of the appellant.