Baker v. Bailey

Ejectment—Equitable ejectment—Res adjudicate. An equitable ejectment against the holders of a legal title based upon an agreement alleged to have created a trust to the plaintiff, is res adjudicata by a prior ejectment by the holders of the legal title against the plaintiff, in which the defense was based upon the same alleged trust relied upon by the plaintiff in the second ejectment. Mortgage—Trust—Redemption—Purchase of paramount title. Where a written mortgage is made to secure future advances, bui no time of repayment is mentioned, the holders of the mortgage are not bound to wait indefinitely, but they may file a bill calling upon the mortgagor to redeem within such time as equity shall decree, or to permit a sale and liquidation. They may also purchase the legal title at a sheriff’s sale under a paramount incumbrance, and if they do so, and the mortgagor makes no counter move for fourteen years, he is without remedy.

Appeal, No. 34, Oot. T., 1902, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., March T., 1900, No. 82, on verdict for defendant in case of Millard F. Baker, Charles Baker, Edward Baker, Henry Baker, Maggie Baker, Hattie E. Baker, Ada Baker, Georgia A. Baker and Frank Baker v. Austin L. Bailey and Frank A. Bailey, Executors of Madison Bailey, Deceased, Virginia H. Bailey, Annie H. Moore, Austin L. Bailey, Frank A. Bailey and Madison Bailey, Jr. Ejectment for land in Neville township. Before Stowe, P. J. At the trial a verdict was rendered for plaintiff subject to questions of law reserved. Subsequently Stowe, P. J., entered judgment for defendants non obstante veredicto in an opinion in which he stated the facts and issues as follows: This is an action of ejectment in which it is admitted that the title to the land in dispute was in Peter Baker in 1875 (both parties claiming under him), subject to a mortgage given by one T. W. Briggs, a former owner, to Mrs. E. Y. Patterson for $9,000, and dated January 7, 1873. A scire facias was issued on this property at No. 548, September term, 1887, and on a lev. fa. No. 207, June term, 1880, of this court, the property was sold by the sheriff to Mrs. Patterson for $50.00. In June, 1880, Mrs. Patterson sold the property to Thomas Fawcett and Madison Bailey, but previous to this and before the sheriff’s sale on the scire facias and purchase by Mrs. Patterson, Fawcett and Bailey, at the solicitation of Peter Baker, the then owner of the property, agreed verbally with him that they would advance the money to pay Mrs. Patterson the amount of her mortgage and take a deed from her for the land and hold the title for his benefit, and as security for the money thus advanced, until it could be sold and Fawcett and Bailey were paid for all moneys advanced by them, the balance should belong to Baker. Under this arrangement, to which Mrs. Patterson agreed, the property was sold to her as stated, and by her conveyed to Fawcett and Bailey, who paid some money and gave their mortgage on the property to her for the balance, which they subsequently paid. After this purchase by Mrs. Patterson and when the transfer of the property to Fawcett and Bailey was in process of execution, Fawcett, Bailey being present and apparently assenting thereto, stated that they were doing this entirely for the benefit of Baker and in pursuance of the agreement previously entered into by the several parties, signed and delivered (as the jury have found), a written memorandum, in substance and effect as follows, viz: “It recites the sale of this property by Mrs. Patterson to Fawcett and Bailey, that they were taking it in trust for Peter Baker, that same was for the benefit of Baker, and was held by them for him, and that upon a sale of it, all moneys over and above what it cost them should go to him.” Baker was allowed to remain in possession of the property after this until July 30, 1888, when he was turned out by the sheriff at the suit of Fawcett and Bailey. In the meantime Mrs. Patterson, at the instance of Fawcett, proceeded under their mortgage to her, and had judgment and execution thereon against them for $5,876.62, and interest thereon from November 22,1882, at No. 164, March term, 1883, and at the sheriff’s sale on said execution W. M. Watson, Esq., attorney for Fawcett and Bailey, bought in the property for $6,200, had deed made to him, and on June 7, 1883, conveyed one undivided half thereof to Fawcett for the consideration of $1.00, and the other half to Bailey for a like consideration. Subsequently they had a habere facias issued at No. 25, October term, 1886, and Baker was turned out of possession by the sheriff on the date above stated. While Baker was in possession he paid the taxes on the property and also some $2,200, of the principal debt due Mrs. Patterson on the mortgage of Fawcett and Bailey. The evidence shows that in 1883, Baker procured a person willing to purchase the property, but Fawcett and Bailey refused to sell, alleging that $14,000, the amount offered, was not enough by some $6,000. The purpose of Bailey and Fawcett in getting Mrs. Patterson to proceed and bring suit upon the mortgage was to get rid of any trust that might exist under the arrangement between them and Baker. The evidence further shows that in 1899, the property in suit was bought under an agreement with the American Land Company from Madison Bailey’s heirs and Austin L. Bailey, grantee of Thomas Fawcett, and deed was made therefor on January 16, 1900, for the consideration of some $80,000 or $85,000. At the time the agreement for the purchase was entered into this suit had not been brought, and nothing appeared upon the abstract of title furnished the counsel for the company exceptthe old ejectment at No. 619, January term, 1885, Bailey and Fawcett v. Peter Baker, the ancestor of plaintiffs, and proceedings thereunder by which Baker was dispossessed and the property delivered to Bailey and Fawcett. After the agreement for the purchase of the property, but before the execution of the deed, counsel for the company was notified by Mr. Stone, counsel for the present plaintiffs (the heirs of Peter Baker) that they claimed title to the property, he made no mention of any writing exhibiting the trust, and referred the counsel for company to Mr. Baker’s answer in the prior ejectment for information as to what Baker’s claim was. An examination of this did not indicate that the agreement was in writing, and counsel therefore concluded it was merely in parol and passed the title. The defense to this state of facts consists (after a denial that the said arrangement was in writing, which the jury found against the defendants in this case) of several propositions of law going to the foundation of plaintiff’s right to recover in this suit, viz : 1. That in an ejectment between the same parties or their privies for the same land there»was a verdict and judgment for plaintiffs (defendants in this action) which is a bar to this suit. 2. That this action, being an equitable ejectment, plaintiffs in this suit under the uncontroverted evidence are barred by laches. 3. That the uncontroverted evidence, showing Fawcett and Bailey, under whom defendants claim title, acquired title through their attorney, Watson, at sheriff’s sale upon a paramount incumbrance, and subsequently brought an action of ejectment against Baker, recovering title to the premises and issued a writ of hab. fa. and recovered possession thereof in July, 1886, said action was a repudiation of any trust in favor of Baker and that any trust relation that might thereafter be claimed to exist, could only be a “ constructive trust ” and the same never having been acknowledged in writing, was barred after the expiration of five years. 4. That there being no evidence that the plaintiffs have ever tendered defendants the amount of money advanced by them, or have in court the same ready to be' paid in case there is a verdict for plaintiffs, they are not entitled to recover, and the verdict should be for defendants. Error assigned was the judgment of the court.