McGeary v. Jenkins , 187 Pa. 440 ( 1898 )

Opinion by

Mr. Justice McCollum,

The plaintiff’s bill appears to have been dismissed on the ground that the eleventh paragraph of it was not sustained by the evidence, and that the other matters included in it were res adjudicata. It is averred in the eleventh paragraph of the bill that the plaintiff offered and still offers to repay defendant Jenkins any money expended by him in the purchase of the property to which this litigation relates, and that she requested and still requests from him a conveyance of said property to her on her repayment of the money so expended. In other parts of the bill it is averred, inter alia, that the purchase of the property by Jenkins was in pursuance of an arrangement between him and the Artisans’ Building and Loan Association which was unknown to the plaintiff and in fraud of her rights. A particular reference to each and every averment in the bill or to each and every answer made thereto by the defendants or one of them is unnecessary. The bill clearly presented a case for the intervention of a court of equity for the preservation and protection of the rights of the parties, and a tender of the amount expended by Jenkins in the purchase of the property was not, under the circumstances, necessary to the maintenance of it. In an action of ejectment for the possession of land sold under an agreement between the purchaser and a mortgage creditor, which agreement is in fraud of the rights of the owner and his judgment creditors, a tender of the money expended by the purchaser in the perpetration of the fraud is not a prerequisite to the institution of the suit. “Where one about to bid upon property at a sheriff’s sale falsely represents that he is buying for the defendant in the execution, and by such false representation prevents competition, and becomes the purchaser at an under price, the sale would be void for actual fraud, and might be set aside by the former owner or a subsequent purchaser without first paying or offering to pa}' the price bid for the property at such fraudulent sale: ” Sharp v. Long & Brady, 28 Pa. 439. The question whether a tender or reimbursement of the money expended by a purchaser who is a party to the fraud is a condition precedent to a proceeding to set aside the sale or to an action of ejectment for the recovery of the land to which the fraud relates is fairly answered by the following cases which clearly show that the fraud dispenses with a tender, and denies to the participant in it a reimbursement of the expenditures she incurred in the perpetration of it: Riddle v. Murphy, 7 S. & R. 230; Gilbert v. Hoffman, 2 Watts, 66; Smull v. Jones, 1 W. & S. 128; Abbey v. Dewey, 26 Pa. 413; Sharp v. Long & Brady, supra.

In the case at bar the plaintiff is not asking for a conveyance of the land to her without reimbursement of the purchaser for the money expended or advanced by him in accordance with the understanding between them. That it was mutually understood by the parties that the money furnished by the plaintiff to defendant Jenkins, together with the money he agreed to advance for her, was to be paid to the Artisans’ Building and Loan Association to prevent a sheriff’s sale of her property, sufficiently appears in the averments of the former and the answers of the latter. It is not claimed in Jenkins’s answers to the averments in the bill that prior to the sheriff’s sale he informed the plaintiff of his agreement with the Building and Loan Association, or of its refusal to stay execution. In the absence of notice from him of such agreement or refusal she might have reasonably inferred that he, by payment to the association of tbe money she furnished to him and of the money he agreed to advance for her, had obtained a stay or postponement of proceedings for the sale of her property. But aside from the question of fraud in the sale there is ample ground on which to sustain the bill. It appears to have been understood and intended by the plaintiff and Jenkins that the money furnished and the money to be advanced as above stated should be paid to the association in satisfaction of the sums for which the plaintiff was then in arrear, and that on payment of the same the proceedings for the sale of her property would be stayed. The fourth averment in the plaintiff’s bill and the fourth paragraph in Jenkins’s answer to it, considered separately or together, are evincive of their mutual expectation of a postponement of the sale as the result of such payment. But this expectation was defeated by the refusal of tbe association to comply with their request, and thereupon the property was sold and conveyed to Jenkins under and in pursuance of an agreement he made with the association. The money intended to be used in payment of the arrears was invested by Jenkins in the purchase of the property, and although he claims to have an absolute title it is obvious that the plaintiff is entitled to a conveyance on reimbursing him for his expenditures, the amount of which is not made clear by his answers. In fact there is a material disagreement between the plaintiff and the defendants as to the amount due on her debt to the Building and Loan Association, as to the amount advanced by Jenkins, and as to the amount furnished by her to him. A tender under such conditions is not required, or practicable: Conyngham’s Appeal, 57 Pa. 474. The questions raised by the bill are not res adjudicata. The plaintiff is not seeking by it to invalidate the sale, but to obtain from the purchaser a conveyance of the property on the ascertainment and reimbursement of his expenditures. Besides she avers in the bill that she was not allowed a hearing on the rule to set aside the sale. In view of the averments and answers the learned court below, instead of dismissing the bill, should have investigated the accounts to determine the proper credits to be allowed for payment to the Building and Loan Association, if any, and the amounts properly expended by Jenkins, and a decree should thereafter have been entered for the conveyance of the property to the plaintiff, conditioned upon the payment by her of the amount found to be due to him, within a reasonable time fixed by the decree. Upon reinstatement of the bill and investigation of the matters referred to all competent evidence relevant in the adjustment of such matters should be received.

Decree reversed and bill reinstated, the costs to be paid by the appellees.