Suker v. Conner

Citations

• 41 Pa. Super. 317

Syllabus

<p>Equity — Trusts and trustees — Specific performance.</p> <p>On a bill in equity for specific performance it appeared from the bill that the principal defendant therein, a contractor, had agreed with the plaintiff, a subcontractor, in writing, to convey a particular property to a trustee as security for a deferred payment to become due to plaintiff as a subcontractor. The defendant conveyed the property to a person who was named as a codefendant, without any consideration passing, to hold the same as trustee for plaintiff. The trustee took with full knowledge of the terms of the agreement. The trustee with another person as cotrustee, held a mortgage on the property in question, and without notice to plaintiff, entered judgment on the bond accompanying the mortgage, sold the property at sheriff’s sale, and had his own attorneys bid it in. Before acknowledgment of the sheriff’s deed, plaintiff tendered the amount of the mortgage, with interest and costs, to the mortgagees. The principal defendant defaulted on his contract with the plaintiff. Held, (1) that it was error to sustain a demurrer to the bill; (2) that the plaintiff had a right to the protection of a court of equity against the fraud of the trustee; (3) that the case was within the proviso of the fourth section of the Act of April 22, 1856, P. L. 532; (4) that the plaintiff having an equity in the property had the same standing as the defendant in the execution to tender the amount of .the execution and costs before acknowledgment and delivery of the sheriff’s deed; (5) that the case was not within the Act of June 8,1881, P. L. 84, which declares that a defeasance to an absolute deed must be in writing and be recorded; and (6) that the plaintiff had no adequate remedy at law.</p>