Borough of Avalon vs. Allegheny Trust Company.

It is argued by attorney for plaintiff that it does not make any difference to the owner, the defendant in this case, whether the taxes for 1904 and 1905 were paid or not, because had the money been appropriated to pay the taxes for those two years, then the taxes for later years would have remained unpaid. That is not an answer to the claim of the defendant. The lien for taxes are divested by Sheriff's sale if sufficient money be realized at the sale to discharge the lien. There was sufficient money realized at the sale of the premises in question to have paid the taxes for 1904 and 1905. That the money was appropriated to taxes for some other year does not change the effect of the sale in divesting the lien for the taxes for these two years. If it needed authority to sustain this proposition, it may be found in the case of Olyphant Boro. vs. Egreski, 29 Sup. Ct., 116.

I am of the opinion that the lien for the taxes for 1905 was divested by Sheriff's sale of October 1, 1911, and judgment should be entered for the defendant.

And now, January 9th, 1915, judgment is hereby entered for the defendant in the above entitled case non obstante veredicto.

Green vs. Minch.

Specific performance- -Parol agreement for sale of real estate- -Statute of Frauds.

Plaintiff, on the strength of a parol agreement with the owner of real estate to purchase the same, entered into an agreement with the defendant for the sale to defendant of the same land. Defendant, after agreeing on terms with the plaintiff and giving a check for part payment went directly to the owner, entered into a new agreement with the owner, stopped payment on the check and refused to complete the sale with the plaintiff, who filed a bill for specific performance.

Held: That as plaintiff's parol agreement with the owner was not binding under the Statute of Frauds, specific performance would not be decreed as plaintiff was neither the legal nor equitable owner and possessed no means of compelling a conveyance of the title, or of carrying out his part of the agreement. That the owner was within her rights in selling to the defendant independently of the plaintiff, as there was no notice to the defendant of the parol agreement between plaintiff and the owner.

In Equity. Bill for specific performance of contract for sale of real estate. No. 466 January Term, 1915. C. P. Allegheny County.

Wallace & Watson, for plaintiff.

O. R. & C. M. Cooke, for defendant.

HAYMAKER, J., June 17, 1915.-First: Francis H. Luty and wife, by deed of September 4th, 1906, duly recorded, granted and conveyed unto the plaintiff, James Green, the tract of land in controversy, situated in Robinson Township, Allegheny County, Pennsylvania, containing about thirty-two acres.

Second. On November 30th, 1909, the said plaintiff executed and delivered to Jennie A. Hanna a mortgage, duly recorded, in the sum of $3,000.00, payable in three years thereafter, on the land described in said deed.

Third. On February 7th, 1914, a writ of scire facias was issued on said mortgage by said mortgagee, and on April 17th, 1914, judgment was entered against the mortgagor, James Green, in the sum of $3,281.25, in default of

an appearance.

Fourth. The mortgagee issued a levari facias on said judgment on April 27th, 1914, and the mortgaged premises were sold on June 5th, 1914, by the Sheriff and purchased by the mortgagee, Jennie A. Hanna, for $144.57, and her deed was duly recorded in the Recorder's Office of said County, on July 29th, 1914.

Green vs. Minch.

Fifth. After Jennie A. Hanna purchased said land at Sheriff sale, she expressed to the plaintiff in the bill a willingness to reconvey the property to said plaintiff on payment of amount due her and referred him to her attorney, Mr. Lineaweaver, who subsequently informed the plaintiff orally that Jennie A. Hanna wanted only her money and that she would reconvey the property to the plaintiff, Green, on payment by him of the debt, interest and costs of the Sheriff's sale, an itemized statement of which was furnished by Lineaweaver to Green.

Sixth. There was no agreement, note or memorandum in writing between Jennie A. Hanna, and the plaintiff, Green, or any money paid or tendered by him to her at any time before the filing of the bill.

Seventh. On Thursday, October 1st, 1914, the plaintiff entered into a parol agreement with the defendant, William Minch for the sale of said farm for the consideration of $6,500.00, payable as follows: $500.00 hand money, $3,500.00 on delivery of deed, and balance $2,500.00 to be secured by a mortgage for five years with interest at six per cent. At the same time the defendant gave his check payable to the order of plaintiff for said hand money of $500.00, drawn on the First National Bank of McKees Rocks, and as such was accepted by the plaintiff, for which the plaintiff gave the defendant a receipt as follows:

Pittsburgh, Oct. 1st, 1914.

Received from William Minch five hundred dollars ($500.00) for 52 acres 105 perches more or less in Robinson Township, Allegheny County, Pa., for $6,500.

Eighth. On Friday, October 2d, 1914, the plaintiff notified his own agent, Detchon, that he had sold the farm to Minch, showed him the check that he had received from Minch, and informed him as to the price and consideration. On the same day Detchon, representing the plaintiff, telephoned Wessel, the agent of Jennie A. Hanna, of the sale and requested him to prepare an agreement for a resale of the farm by Jennie A. Hanna to Green for the amount of the debt, interest and costs referred to in our fifth finding of fact, at the same time informing Wessel that Green held Minch's check for $500.00, which would be delivered to Wessel when certified by the Bank as part payment to Jennie A. Hanna. Wessel assured Detchon that the agreement would be prepared and ready for execution on the next day, Saturday, October 3d, 1914; but on that date Detchon endeavored unsuccessfully to communicate with Wessel by telephone and renewed the effort on the following Monday, when he was informed by Detchon that he had sold the farm to another party (Minch) and had closed the matter on the Saturday previous.

Ninth. On Saturday, October 3d, 1914, Jennie A. Hanna, and Minch, the defendant, entered into a written agreement under seal whereby she agreed to convey and he to purchase said farm on or before October 31st, 1914, for $4,000.00, payable as follows: $150.00 on the execution of the agreement, $2,850.00 upon the delivery of deed and balance of $1,000.00 to be secured by mortgage for three years on the premises.

Tenth. On Friday, October 2d, 1914, the check given by the defendant to plaintiff was presented at defendants' bank for the purpose of having the same certified, but the bank then declined to do so for the reason that defendant had only a savings deposit and not a checking account in said

Green vs. Minch,

bank. The plaintiff, being unable to see the defendant in the meantime, again presented the check at the bank on Saturday, October 3rd, 1914, when he was informed by the Cashier that the defendant had on the same date stopped payment on the check and the Cashier wrote on said check "payment stopped."

Eleventh. On October 22d, 1914, the plaintiff tendered the defendant his general warranty deed for said farm accompanied by a written notice from plaintiff to defendant as purchaser and trustee of the plaintiff of the purchase money payable under the agreement of October 1st, 1914, to pay to Jennie A. Hanna, out of said purchase money the amount necessary to obtain a deed from her, and deduct the same from the amount of the purchase money mortgage of $2,500.00, agreed by defendant to be given to the plaintiff, or that if more than $4,000.00 were required to obtain the title from said Hanna the plaintiff would pay the same on delivery to him of said purchase money mortgage. Said notice further required the defendant to deliver to the plaintiff his purchase money mortgage for $2,500.00, payable according to said agreement between them, with an offer by the plaintiff to return to defendant his check of $500.00. The defendant refused to comply with the terms of either the tender or written notice, a copy of the latter having been left with the defendant.

Twelfth. After the plaintiff gave the defendant the receipt of October 1st, 1914, and received that check the defendant was informed by Charles Sleeper that the plaintiff was not then the owner of the farm, whereupon he, the defendant, went to the office of Wessel, on Saturday, October 3d, 1914, and was informed by Wessel that the plaintiff had no agreement or option with Jennie A. Hanna for the purchase of the farm and that same was for sale to defendant or any other person for the sum of $4,000.00. The defendant executed the agreement with Jennie A. Hanna on Saturday, October 3d, 1914. Stopped payment on said check on the same day, and did not reveal to Wessel or Hanna, before the execution of the agreement, of the previous arrangement or agreement with the plaintiff.

Thirteenth. At no time after the purchase of said farm by Jennie A. Hanna, on June 5th, 1914, at Sheriff's sale, did the plaintiff have a legal or equitable ownership therein.

Fourteenth. The defendant had no knowledge before the execution of his agreement with Jennie A. Hanna of any agreement or arrangement between the plaintiff and Hanna as to the repurchase of the farm by plaintiff from Hanna.

Fifteenth. During the month of November or early in December, 1914, Jennie A. Hanna tendered the defendant a good and sufficient deed for said farm, and demanded the payment of the balance of the cash payment of $3,000.00, to-wit: $2,850.00 and the execution of a purchase money mortgage of $1,000.00.

CONCLUSIONS OF LAW.

First. At the time of the trial of this case the plaintiff was neither the legal nor equitable owner of the land described in the bill, and possessed no means of compelling a conveyance of the title from Jennie A. Hanna to himself.

Second. When the defendant discovered that the plaintiff had no title to the farm in question, and having no knowledge of the oral agreement between Jennie A. Hanna and the plaintiff, he had the legal right to repudiate his agreement with the plaintiff and to execute the contract of purchase with Jennie A. Hanna of October 3d, 1914.

Third. There is no evidence in the case to show that the plaintiff would have been legally able at any time after his contract with the defendant to acquire the title of Jennie A. Hanna, so as to be able to convey the same to the defendant.

Green vs. Minch.

Fourth. Had there been any evidence in the case to show that the plaintiff had the legal right to, and could have acquired the title to said farm at any time before the entry of a decree in the case, we could have compelled specific performance of the contract between plaintiff and defendant, and it would have been no defense that the contract was not signed by the defendant, as the Statute of Frauds was satisfied by a memorandum signed by the vendor alone. Nor would the fact that the writing signed by the vendor did not describe or locate the land, avail the defendant after the service of the notice of Noyember 22d, 1914, the tender of the deed anď the filing of the bill.

Fifth. The plaintiff was bound to show title in himself, or in some one whom he can compel to join in the conveyance, and it was the duty of the plaintiff at the time he entered into the agreement with defendant to disclose the defect in his title.

Sixth. At the time of the making of the contract between plaintiff and defendant Jennie A. Hanna was not under the legal control of the plaintiff; she had an independent title to the farm in question and the Court cannot compel a purchaser to take an estate from a vendor who is neither owner of that interest nor possessed of the legal power to make himself so. Seventh. Jennie A. Hanna had the legal right to convey the farm to whom she desired, and the mere fact that she sold the same to the defendant, aiter he discovered that the plaintiff had no title thereto, could not avail the plaintiff, and justify a decree for specific performance of a contract which the plaintiff himself was legally incapable of performing, either af the time it was made or at any time thereafter.

Eighth. The Court cannot decree specific performance of the contract between the plaintiff and defendant under the facts of the case, and the bill should be dismissed at the cost of the plaintiff.

Marlin vs. Marlin.

Mortgage to Fictitious Person-Cancellation Of-Equity-Service of Bill.

A executed a bond and mortgage to B in the sum of $2,000 and had the mortgage recorded. After A's death, his widow, as executrix, filed a bill asking that the Court decree the satisfaction of the mortgage on the ground that "There was no person by the name of B and that in fact A and B are one and the same person," and that "A did not borrow any money, that the mortgage does not represent or secure a debt, and that there was no B other than A, the mortgagor." Defendant not being in existence, there was no service of the bill and the matter came on for hearing in the nature of an ex parte proceeding.

Held: Even if equity had the power to decree a cancellation of the mortgage, the existence of the bond would prevent relief, as it did not appear that any special effort had been made to discover whether B was in existence and bill dismissed and decree refused, without prejudice. A decree in equity is presumed to go against a real person not a mere name.

In Equity. No. 968 July Term, 1915. C. P. Allegheny County.

David Stonecipher, for plaintiff.

CARPENTER, J., June 10, 1915.-This action though in form an adverse proceeding in Equity, is in fact ex parte, and in substance a petition for an order directing that a mortgage be satisfied.

The plaintiff is the Executix of the will of Samuel A. Marlin late of Findlay Township, Allegheny County, Pa., deceased. She files this bill against Augustus Marlin, setting out that on January 6th, 1908, said Samuel A. Marlin executed and recorded a mortgage for $2,000, to Augustus Marlin of Beaver Falls, Pa. She avers that there was no person of that name at Beaver Falls and that in fact Augustus Marlin and Samuel A. Marlin are

Marlin vs. Marlin.

one and the same person. In brief, her averment is that her husband, testator, did not borrow any money, that the mortgage does not represent or secure a debt and that there was no Augustus Marlin other than Samuel Augustus, the mortgagor. It is manifest that if there is not and never was an existing defendant service of the bill cannot be made personally or otherwise. This is the first instance called to our attention in which a decree against a non-existing mortgagee, a mere name, has been sought in equity. Where a suit is brought in the name of one who is not in being it is said to be brought in the name of a fictitious plaintiff-4 Bla. Com. 133.

The converse of this state of facts is equally true, that is if a suit is brought against one who is not in being, it is brought against a fictitious defendant. When a note is made payable to the name of some person not having any interest, and not intended to become a party to the transaction, whether a person of such name is or is not known to exist; the payee may be deemed fictitious.

By our negotiable instrument Act of 1901 a check is payable to bearer "When it is payable to the order of a fictitious or non-existing person and such fact was known to the person making it so payable." While it is true that we are now dealing with a mortgage and not with a note, we are dealing with a state of facts in which it is alleged that the name used was not the name of any existing person. The meaning of the word "fictitious" and "non-existing," and the reason for the use of both in the statute is discussed in Snyder vs. Commercial Exchange National Bank, 221 Pa. 599.

But without further discussion of the meaning of "fictitious" and "nonexisting," we come to a more serious question. The mortgage recites that the mortgagor gave a bond. It is true, this recital is in the formal language used in mortgages but it recites a fact. Now if this bond secured by the mortgage given for the avowed purpose of discouraging a party from bringing suit, in other words, for the purpose of hindering, delaying and defrauding a creditor, has passed to an innocent assignee for value, why should equity grant relief? It is clear that a decree for the satisfaction of the mortgage might result in serious wrong. We do not have sufficient evidence on which to base any findings of fact. The testimony is practically nothing more than the declarations of the mortgagor, now deceased. It does not appear that any special effort was made to discover whether any person named Augustus Marlin resides or did reside in Beaver Falls. The mortgagor, in his mortgage, said he did. He further acknowledges himself held and firmly bound in the penal sum of $4,000 to pay the mortgage $2,000. His subsequent self-serving declarations cannot be allowed to overcome these solemn declarations, signed, sealed, acknowledged and recorded, without adequate proof that the so-called mortgagee was merely a name. this view of the case a decree dismissing the bill must be entered, but, without prejudice to the right of plaintiff to proceed by petition or by such other method as may be deemed adequate to effect a legal discharge of the mortgage.

In

It would be a vain thing to decree satisfaction unless the facts on which the decree is based are clearly sufficient to sustain it. A decree in equity is presumed to go against a real person not a mere name.

The decree prayed for is refused without prejudice.