Natalie Anthracite Coal Co. v. Ryon

Citations

• 188 Pa. 138
• 41 A. 462
• 1898 Pa. LEXIS 586

Syllabus

<p>Equity — Fraud—Sheriff's sale — Mortgage.</p> <p>Ejectment is generally the exclusive remedy in case of disputed title-A bill in equity will not lie ordinarily to restrain an execution creditor from proceeding in due course to sell, in satisfaction of his claim, real estate alleged to belong to his debtor; but, where the process of the law is being used against' right and justice to the injury of another, the right of the latter to invoke the intervention of a court of equity cannot be-doubted.</p> <p>On a bill in equity for an injunction to restrain the selling of land under an execution, it appeared that the principal defendant had been a part owner in a mortgage on the land in question. He had entered into a-written agreement with the other owners of the mortgage by which the-latter were to press foreclosure proceedings as speedily as possible, and> pay to defendant certain sums out of the proceeds. The agreement was carried out, the land was sold at sheriff’s sale, and-the sheriff’s vendeeconveyed it to’ the plaintiff in the equity suit. The sheriff was joined as a party defendant,in the bill in equity. The defendant filed an answer to-the bill containing vague insinuations of fraud. These averments were-not sustained by the evidence. Held, (1) That the burden was on the defendant to establish fraud as an affirmative fact ; (2) from the fact that the defendant participated in the foreclosure proceedings, and from the other circumstances in the case, the presumption is that the sheriff’s sale was fain- and honest; (3) that it was improper to join the sheriff as a party, but that the Supreme Court would consider the record as amended, nunc pro-tune, by striking his name therefrom ; (4) that it was error to refuse to-continue a preliminary injunction.</p>