Union Trust Company vs. Pittsburgh-Buffalo Company et al. operation of the mines the receivers mined and removed about 197 acres of coal. 6. The properties described in the mortgages sought to be foreclosed are subject to a first mortgaged dated August 2, 1909. A sale on the second mortgage will be subject to the lien of the said first and prior mortgage. 7. The indebtedness of the Pittsburgh-Buffalo Company secured by the first and second mortgages is as follows: Due on the first mortgage, Interest thereon, Due on the second mortgage, Township and local taxes, Total-not including State taxes estimated at $1,769,000.00 159,250.00 23,397.91 $3,793,762.85 8. The unsecured liabilities of the Pittsburgh-Buffalo Company, exclusive of interest, is $3,069,863.89 Of the unsecured claims and demands against the Company the contingent liabilities amount to $1,061,366.76; against which there is a credit of $157,200.00, the value of collateral admittedly good. 9. The fair market value of the properties described in the mortgage is not less than $6,300,000.00 10. The properties included in the mortgage constitute substantially all of the assets of the Pittsburgh-Buffalo Company. CONCLUSIONS. First. The properties should be sold separately and in the order following: Second. Thursday, May 27, 1915, at ten A. M., is fixed as the date and time at which the properties shall be offered at public sale. The properties to be sold in the order mentioned in the first conclusion, that is commencing with The Marianna Plant and followed by the properties in the order named. Written notice of the time and place of sale shall be served upon the receivers at least thirty days before the time fixed for sale, and the master shall give due notice of the sale by publication once a week for four successive weeks, in newspapers to be designated by the Court, the last notice to be published at least seven days prior to the date of sale. That the Court may be aided by advice and suggestion of counsel, we have reserved designating the place and prescribing the terms and conditions of sale, until the entry of a final decree. DISCUSSION. The power of the Court to direct that the properties described in the mortgage or deed of trust shall be sold as an entirety or sold separately, and to prescribe such directions respecting the sale or sales as may be equitable, is not question. The disputed questions are: First. Has the Court, in the exercise of its equitable powers, the right to defer a sale for a reasonable length of time; and Second. If the Court has such power, will the evidence in this case justify the granting of a delay in favor of the defendants and against the complainant's right to enforce its lien against the pledged property? Union Trust Company vs. Pittsburgh-Buffalo Company et al. The right under certain circumstances to decline to permit the fore. closure of a mortgage on application of a mortgagee, without prejudice to a renewal of the application at a later date, was exercised by Judge Orr of the United States District Court in the petition of the Girard Trust Company for leave to institute foreclosure proceedings against the Pittsburgh and Westmoreland Coal Company, and by Judge Dayton in the United States District Court in a similar application made by the Goodman Manufacturing Company against the Four States Coal & Coke Company. In Galey vs. Guffy, No. 50 Fourth Term, 1910, in equity, a petition for leave to foreclose a mortgage, the Court refused to allow a sale at the then present time. The general rule is that "property which has been taken into possession of the Court and is in the custody of the receivers cannot be levied on and sold without its leave * * * but in proper cases such leave may be given. * * a Court of Equity is not required to retain possession of the property where it would be inequitable to do so. But it is held that such levy and sale will not be permitted when the equity of the party claiming the lien can be amply protected in the administration of the assets for the creditors and no urgent necessity for sale is shown." 34 Cyc., 235. This rule applies; and in each of the cases to which we have referred the court had jurisdiction of the estate. In the case at bar the court which has control and custody of the assets of the PittsburghBuffalo Company, gave the complainant leave to institute such proceedings as might be necessary for the collection of the moneys secured by the mortgages. On petition of the complainant presented to the District Court of the United States, the Court granted The Union Trust Company of Pittsburgh leave to commence and prosecute such suit or suits as may be necessary for the purpose of perfecting and enforcing its rights under the mortgage dated April 29, 1910. In pursuance of the authority so granted the complainant filed this bill in equity. The District Court had control of the estate of the Pittsburgh-Buffalo Company, with the duty of conserving the estate and requiring its administration in such manner as might be for the best interests of the secured and unsecured creditors. The Court had the right to say that the existing financial conditions together with other causes rendered a sale at this time inequitable. After due notice to the receivers and consideration of the averments of the petition-the receivers not answering-the Court made an order permitting the institution of the proceedings. It may well be urged that in reaching that conclusion, the Court had in view the protection of the rights of all parties having interests, and determined that under the circumstances an enforcement by the Trust Company of its legal rights under the mortgage would not be oppressive. It does not appear that the complainant has unduly insisted on payment, nor have the receivers been embarrassed by demands for settlement. Since the appointment of the receivers and prior to the application made on October, 1913, for leave to proceed, the complainant has indulged the receivers and postponed action, and was willing to render assistance in effecting a sale. Mr. Ailes, one of the receivers, testified: "In every case where we had a purchaser who would talk anything like business, we went to The Union Trust Company and asked them what they would do with their securities, and they agreed in every case to go along if anyone would put up a considerable amount of money to finance the thing, they expressed a willingness to carry along their obligations in every case." Interest is accumulating, local and State taxes are unpaid, in default of payment of the premiums by the receivers-they being without funds Union Trust Company vs. Pittsburgh-Buffalo Company et al. the policies of insurance were renewed by the complainant, the mining and removal of a large quantity of coal has lessened the market value of the property, and it would seem that the complainant should not be prevented from enforcing its rights under the mortgage. It is, however, contended that a sale at this time would be unfair to the unsecured creditors, and result in a loss of their claims. That this is an inopportune time to expose properties of the character described in the mortgage or deed of trust to sale, can not be questioned. There is a marked depression in business, rendering it difficult, perhaps impossible, to finance enterprises of unusual magnitude. A number of "coal properties" are in the hands of receivers or offered for sale. In addition a prospective purchaser would be influenced by the fact that a sale will be subject to the lien of the first mortgage. The first mortgage securing $1,769,000.00 is due, interest amounting to $92,114.94 is in default, and process for collection may issue at any time. Though proceedings on the first mortgage will be under the control of Court, yet the absence of any arrangement respecting the moneys thereby secured, the first mortgage and the liability to foreclosure would deter bidders and prevent obtaining the fair values of the properties. The complainant is entitled to the remedy provided by the express terms of the mortgage; yet the complainant is protected, and fixing a time of sale five or six months hence is not unreasonable. It was stated by counsel that the creditors are represented by a committee. The committee did not appear by counsel or otherwise in this proceeding. During the period named the receivers, committee of creditors and parties in interest may effect an arrangement in the interests of both the secured and unsecured creditors. The requirements as to place, terms, conditions and further notice of sale will be more definitely prescribed in final decree or in further order, it being the desire of the Court to consider such suggestions as counsel may deem proper to submit. Leitch vs. Leitch. Feeble minded persons--Act of May 28th, 1907---Construction of. The Act of May 28th, 1907, providing for the protection of insane persons, feeble minded persons and epileptics and for the appointment of a guardian for such persons and the care of their property, was intended to protect persons who are at the time of the inquiry unable to protect themselves and the act should not be construed to deprive owners of the free control of their property for the purpose of conserving it for the benefit of those who may ultimately inherit it. It is the mental condition of the person at the time of the hearing which determines whether the act is operative, Petition. No. 123 April Term, 1915. Docket "C." C. P. Allegheny County. Eckles & Conrad and D. C. Ogden, for plaintiff. Carpenter, J., March 2, 1915.-This petition is filed under the provisions of the Act of Assembly of May 28, 1907, P. L. 292. The Act provides that: "Whenever hereafter any person, being a resident of this State, shall become insane or feeble minded or epileptic, or so mentally defective that he or she is unable to take care of his or her property, and in consequence thereof is liable to dissipate or lose the same, and to become the victim of designing persons, it shall be lawful for either the mother, brother, sister, husband, wife, child, next of kin, creditor, or in the absence of such person or persons, or their inability, any other persons, to present to the Court of Common Pleas of the county in which said person to be cared for resides, his or her petition, under oath, setting forth the facts, praying the Court to adjudge such person to be unable to take care of his or her property, and to appoint a guardian for the estate of such person." The petition contains the necessary jurisdictional averments. It will be noted that the act refers to any person who becomes "insane or feeble minded or epileptic, or so mentally defective that he or she is unable to care for his or her property." It differs from the Act of June 19, 1901, P. L. 575, in that it embraces the insane and epileptics and those who are "mentally defective." The earlier act refers to persons so weak in mind that they are unable to take care of their property. Just what distinction, if any, the legislature intended to make by the classification set out in the Act of 1907, between those who are "feeble minded" and those who are "mentally defective" it is unnecessary to determine in disposing of the question now under consideration. It is sufficient to say that the condition of mind alleged must be shown to exist, and it is unnecessary to discuss real or possible distinction is the words used to describe the mental condition of the person for whom a guardian may be appointed. The real question is: Does the testimony show that Miss Leitch is, by reason of her mental condition, unable to take care of her property? If it does, then it follows as a matter of course that she is liable to become the victim of designing persons and should be protected against such by the appointment of a guardian. More than five hundred pages of testimony were taken, much of it having little, if any, bearing upon the real question before the Court. More than forty witnesses were examined, of whom five were physicians. Many of the witnesses were relatives, some of whom showed considerable feeling in the matter, and as a result much of the testimony was irrelevant. It would only encumber the record, would but "multiply words and darken counsel," if any extended discussion were attempted. We start with the presumption of capacity on the part of respondent to care for her property. If all the evidence except that of the physicians is excluded, we must conclude that respondent is neither so "feeble minded" Leitch vs. Leitch. nor so "mentally defective" that she is unable to care for her property and the testimony as a whole does not weaken this conclusion. That she is not so active mentally as she was in her earlier years is not disputed, nor is there any doubt that her present condition, both physical and mental, is due, in a large measure, if not wholly, to attacks of apoplexy resulting in hemiplegia. The doctors agree that while she has not fully recovered from the effects of these attacks, that the extent of recovery is remarkable. Witnesses who have no interest in the result of this proceeding and who have known respondent for many years and have had business dealings with her of more or less importance say that she is entirely able to look after her affairs. There is on the other hand much testimony which it is claimed shows marked deterioration in her mental powers, and many specific instances of conduct are cited which, it is contended, show inability to care for her property. We think that the preponderance of the testimony is clearly on the side of respondent. That designing persons might take advantage of her can not be disputed, but this is true of persons of exceptional business capacity. Jurisdiction under our statute is not predicated upon the allegation that the person concerning whom inquiry is to be made, is liable to become the victim of designing persons and is therefore of weak mind or mentally defective, but is predicated upon the allegation that the party is feeble minded or so mentally defective that he or she is liable to become the victim. In a word, it is the mental condition that raises the presumption of liability to danger and not the liability to danger that raises a presumption of mental defectiveness. Isolated instances of indiscreet dealings, transactions that seem fairly to indicate that undue influence was used, do not in and of themselves show mental weakness but coupled with other facts may be sufficient to warrant the Court in finding that the party is so feeble minded, so mentally defective, as to be unable to care for his or her property. The Act of Assembly has but one purpose in view, that is, to protect persons who are so unfortunate as to be unable to protect themselves, and the Courts should be very careful not to permit it to be used to deprive owners of the free and unrestricted control and enjoyment of their property merely that it may be conserved for the benefit of those who are looking forward to the "inevitable hour," for which they wait with more or less patience. This observation is general and is not to be construed as a reflection upon the petitioner or as questioning the motives which actuated him and the other relatives of Miss Leitch who have expressed the opinion that she is incapable of managing and caring for her property. But, however honest they are, however sincere in their belief, we think they have failed to show mental incapacity. There was no attempt to conceal the fact that the brother and other relatives are convinced that Mr. and Mrs. Belleville are exercising undue influence over Miss Leitch for their personal benefit. Nor did they hesitate to let it be known that they believed her attorney had over-reached her in the matter of the sale of the farm. They point to admitted and to controverted facts in respect of these matters which they contend show mental incapacity. But granting that she has shown a decided preference for Mrs. Belleville and that Mr. Silvus did make a large profit in the sale of the farm, yet in the absence of sufficient evidence to sustain the allegation of the petitioner, we are not persuaded that they show mental incapacity or that taken with all the testimony offered by the petitioner they show mental weakness such as we understand is contemplated by the Act of Assembly. It is but proper to say that Mr. Silvus has been for many years the friend and counsel of respondent and that the evidence shows that she had been endeavoring for years to sell |