McLellan's Appeal , 1875 Pa. LEXIS 3 ( 1875 )

Mr. Justice Mercur

delivered the opinion of the court, May 31st 1875.

When this case was before us last year, we reviewed the facts and carefully considered the conclusions of the auditors. The value of the lands, as well as the liability of the appellant to account therefor, had been distinctly -put in issue before the auditors. They had heard all the testimony offered by either party, bearing on both these questions. They had found as a fact “that the lands were of the value of $70,000 and upwards, and were sufficiently valuable to have paid, if sold, the whole indebtedness of Anspach then due to the appellees.” We approved and affirmed this finding. We held that the appellant was guilty of supine negligence in permitting lands of that value to be taken from him under the facts as established. The actual loss, however, that the present appellees had thereby sustained was much less than the value of the lands. That loss was the amount only due them from Anspach. That sum was the measure of their damages. Inasmuch, however, as that precise sum did not distinctly appear, the case was sent back substantially with instructions to ascertain the same, and thereupon to enter a decree surcharging the present appellant in that sum.

It is now claimed that, conceding the lands to have been of the actual value of $70,000, yet owing to the existence of a prior mortgage of $25,000 on them, their practical value in the hands of the appellant was thereby lessened to that extent. There are several reasons why this alleged fact should not be inquired into now.

1. It existed long prior to the former hearing before the auditors. It was a matter of record. Reasonable diligence required that the appellant should have found it and have given it in evidence. As well might the appellees now ask to give additional evidence for the purpose of charging the appellant with the amount of the worthless builder’s mortgages, as for the appellant to open any question in regard to the land. The former decree as to its value must be held conclusive. There is great force and wisdom in the maxim, “ Nemo debet bis vexari, si constet curia quod sit pro uná et eddem causd.” Justice demands its application in this case.

2. If this prior mortgage of $25,000 existed, it still left a remaining value of $45,000 in the lands. That value exceeded by some $20,000 the sum due from Anspach, for which the appellant was chargeable; but

3. This mortgage was also a lien on other valuable coal-lands of Anspach. The mortgage-creditor could have been required first to resort to those lands, and they were probably of sufficient value to have satisfied the mortgage. It follows that the land which appellant voluntarily permitted to be lost to the appellees, notwithstanding all now alleged, were a valuable and reliable security for the full amount due from Anspach. The subsequent sheriff’s sale and purchase, for the nominal sum of $10,000, by one then holding all the liens on the land, and to an amount exceeding $300,000, creates no presumption of their actual value. Hence to have admitted the evidence offered by the appellant would have been not only beyond the present subject of inquiry, but could not have resulted in any benefit to the appellant.

The auditors were therefore entirely right in rejecting the evidence, and the learned judge was correct in the decree which the court made. It is affirmed.

Appeal dismissed at the costs of the appellant.

Mr. Justice Sharswood dissented.