Winton v. Morss , 87 Pa. 77 ( 1878 )

Mr. Justice Woodward

delivered the opinion of the court,

All due consideration was given to the point presented by the first assignment of error when this cause was heard on the first appeal. The laborious investigation by the master and Judge Dana’s thorough review of the report, resulted in the imposition of costs on the plaintiff, and nothing appeared on the argument in 1876, to show that any such error had been committed as to require that the decision should be reversed.

It is possible that some unguarded language in the opinion of this court in entering the former judgment, caused the misapprehension under which the rulings complained of in the second, third and fourth assignments of error were made. The bill of costs of the defendants had not been taxed. It was in the record exhibiting the items charged for counsel fees, and for the time spent and expenses incurred by Mr. Morss. ' No inquiry into the propriety of the charges was attempted. All that was meant to be said in referring the subject to the Common Pleas was, that legitimate demands should be sustained. It is of frequent occurrence in equity practice that compensation is given for professional services, and for the labor and expenditures of a party when they have been rendered, performed or paid for the protection or enhancement of a common fund, or for the common benefit of all the parties to the controversy. It could not be known, in the absence of all inquiry, that such services, labor and expenditures had not been charged for here. It is true the compensation is usually described as “allowances,” and not as “costs,” and is usually directed during the pendency of the litigation. But it was taken for granted that, although the claim of the defendants was made in the bill of costs after the suit was determined, it was still of the general character to justify the awarding of allowances as if they had been sought in the accustomed and proper form.

It does not appear from any facts now disclosed that any services were rendered, either by the counsel or by Mr. Morss, entitling them or him to compensation under the only rule by which a demand could be supported. The litigation was adversary throughout. There is no law in Pennsylvania- to warrant the payment as “ costs in tbe cause,” of tbe fees of counsel for professional services, or of tbe value of the time bestowed, or the amount of expenses incurred by a party in its preparation and trial. Without an. Act of Assembly empowering it, the courts cannot create a fee:bill," and it would be a usurpation of legislative functions to allow .as. between party and party, charges to which no statute has ever, given the character of costs. Since Wilt v. Vickers, 8 Watts 235, and Rogers v. Fales, 5 Barr 159, were overruled, compensation has never been recoverable for trouble and expenses in conducting a suit and establishing a right: Alexander v. Herr, 1 Jones 537. It was for the adjustment of costs, as such, that the record was sent back.' ’ There is no equity fee-bill in Luzerne, and while a reasonable discretion in chancery cases is permitted to the Common-.Pleas, it must be exercised in view and with the aid of the analogies which the statutes relating to costs in actions at law afford: Neel v. Neel, 1 Grant 171. In the re-taxation of the bill, all items in the nature of allowances, and which may not properly come within the denomination of costs must be excluded.

If the decree of the 26th of January 1875, had closed with the second paragraph, the plaintiff’s complaint in the fifth assignment would be well-founded. The delivery of the deed for the Newton purpart of the land in dispute, was directed on payment of the costs, and they were paid. But the residue of the decree prescribed the conditions on which the Vosburg - purpart was to be conveyed. Among them was the direction- in -the third paragraph that the plaintiff should pay the amount'found due by him $10,941.52, to Morss’s executor within sixty days. This direction was not complied with. Many obvious reasons -may.be conceived why the sum found due should be paid before partial execution by the defendants ought to be enforced. The plaintiff, in accepting the benefit bestoAved on him, was bound to assume the burden coupled with it that was imposed. The court were construing their OAvn decree, and when they held that complete and cotemporaneous, and not partial performance of its conditions had been in their contemplation, they affixed a meaning to it that was not inconsistent Avith its terms, and on grounds of original intention as to Avhich they of all the world were most fitted to decide. The order for the delivery of the deed of the Newton third of the land to the plaintiff was properly refused.

There was error in entering the amended decree of the 30th of January 1878. This was done five days after the certiorari to bring up this appeal had been filed in the Common Pleas. It is possible the irregularity Avould not be fatal to the amendment if that had been providently made. But it was wrong on other grounds. It undertook finally to debar all claim of the plaintiff to the Vosburg third of the land at the expiration of thirty days, if, meanAvhile, he should not pay the amount found due. The contract between Mott and the grantors of the plaintiff had been declared to be a mortgage. And in this state a mortgagor’s equity of redemption can be extinguished only by his own agreement, by some act done by himself that estops him, or by a judicial sale. Even after a recovery in ejectment, possession can only be retained by the mortgagee till the amount of the mortgage-debt is paid: Colwell v. Hamilton, 10 Watts 417. Our courts may acquire jurisdiction in equity against a mortgagor in a suit by the cestuis que trust of the mortgagees against them, and having thus assumed jurisdiction of the subject-matter, may proceed to decree a sale for the benefit of the plaintiffs; but they cannot do so at the suit of the mortgagees against the mortgagor: Ashhurst v. The Montour Iron Co., 11 Casey 30. The power of the court to amend the decree after three years had lapsed was discussed in the argument, but the question need not be considered now; as for other reasons the sixth assignment of error is sustained.

A final disposition of the rule upon the plaintiff and The Delaware and Hudson Canal Company, to show cause why an account should not be taken of the rents due from the company has not been made. The seventh assignment was argued, however, as if the rule had been decided. The proceeding is an anomaly. When it was begun, the decree had been entered two years. All controversies between the parties to the bill had been put at rest. The application was not founded on any condition the decree had prescribed. It was not a cross-bill, an interlocutory petition, or a bill of review. It was a claim for rents accrued during the contest, and had just the connection with that contest which a rule on a tenant, as an indifferent stakeholder, to show cause why mesne-profits should not be assessed, would have with an action of ejectment after the recovery of a verdict and the entry of a judgment against a former claimant of a tract of land. The rule is pending, and there may be rational and legal reasons why it should be made absolute. But if the question Avere here, no grounds can be now conceived for supporting the proceeding as a legitimate supplementary appendant to the original litigation.

The decree is reversed, and it is ordered that the record be remitted for further proceedings, in accordance with the conclusions of this opinion.