Opinion
October 17, 1929.
December 12, 1929.
Appeals — Order permitting plaintiff to pay money into court — Interlocutory — Act Sept. 6, 1860, P.L. 1861, p. 840.
In a proceeding under the Act of Sept. 6, 1860, P.L. 1861, p. 840, the petition prayed for leave to pay into the court the sum required to extinguish a ground rent with authority to extinguish the same of record, or for a declaratory judgment that the trustees under a will were entitled to extinguish it. The court granted a rule, which it subsequently made absolute, directing the payment of the money into court, but made no order on the prayer for the declaratory judgment.
The order permitting the payment of the money into court was an interlocutory decree from which no appeal will lie.
Under the provisions of the Act of 1860, such an order is in no sense a final order determining the right of the ground rent tenant in the fund, but is to be followed by the order to extinguish the ground rent, and an order following distribution proceedings before the auditor. The act gave the court no authority to enter a declaratory judgment.
Appeal No. 293, October T., 1929, by defendants from decree of C.P., No. 2, Philadelphia County, June T., 1929, No. 5506, in the case of James A. Ritter v. Annie Adele Leach and Provident Trust Company, trustees under the will of Wilmon W. Leach, deceased.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Appeal quashed.
Petition for extinguishment of ground rent under the Act of 1860, P.L. 1861, p. 840. Before GORDON, JR., J.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule upon defendant to show cause why plaintiff should not pay into court the sum of $1,400 in extinguishment of the ground rent, and why defendant should not be decreed to make a proper extinguishment of the same. Defendants appealed. Error assigned was the decree of the court.
E. Spencer Miller, for appellants, cited: Davidson v. Bright, 267 Pa. 580; Schoen's Estate, 274 Pa. 28; Hanhum v. Spear, 1 Yeates 553; Wilhelm's Appeal, 79 Pa. 120; Abrahams v. Baugh, 9 Legal Ms. Rep. 59.
No appearance and no printed brief for appellee.
Argued October 17, 1929.
On June 25, 1929, James A. Ritter, the owner of premises known as 819 North Beechwood Street, in the City of Philadelphia, filed a petition in the court below, under the Act of September 6, 1860, P.L 1861, p. 840, for the extinguishment of a ground-rent held on that land by appellants in their capacity as trustees under the will of Wilmon W. Leach, who died September 26, 1926. The petition sets forth that by a certain action of assumpsit brought against the defendants, as executors of said estate, on September 13, 1927, the lien of the claim on which the suit is based was kept alive for a period of five years from the day on which the suit was brought. The prayer was in the alternative, the request being that a decree be entered allowing the petitioner to pay into court the sum required to extinguish the ground-rent, and authorizing and directing the defendants to extinguish the same of record; or that the court enter a declaratory judgment that the defendant trustees are entitled to extinguish the ground-rent, notwithstanding the lien of the claim on which the above mentioned suit against the executors of the Leach Estate is based. All the averments of fact in the petition were admitted in the answer filed. The court below granted a rule on the defendants to show cause why the plaintiff should not pay into court the sum necessary to extinguish the ground-rent and why the trustees should not be decreed to make a proper extinguishment of the same. The rule contains no referance to the prayer for the entry of a declaratory judgment. After argument upon the rule it was made absolute and the plaintiff was authorized and directed to pay the sum of $1,400 into court. From that order this appeal is taken by the defendants.
We are of one mind that the order which we are asked to reverse will not support an appeal, because it is not a final order, but is purely interlocutory in character.
The Act of 1860, supra, provides that in all cases, in the City and County of Philadelphia, in which ground-rents have been or shall hereafter be created by reservation on the sale of any real estate, and judgments, or other lien or liens have been or shall be obtained against the owners of such ground-rents, it shall and may be lawful for the person or persons desiring to pay off a ground-rent so situated, to apply by petition to the court of common pleas of the said county, praying to be allowed to pay the sum required for the extinguishment of the said ground-rent into court; whereupon, the said court shall make an order for such payment into court; and upon the said sum being paid into court it shall be the duty of the court to make an order on the party or parties in whom is the title to the said ground-rent, to extinguish the same; and it shall be the duty of the court, to proceed immediately, through an auditor, to the distribution of the money so paid into court, with the like forms, and with the like effect, as attend the distribution of moneys paid into court by the sheriff from the sales of real estate.
By the terms of the act it seems entirely clear that the order to pay the money into court is in no sense a final order determining the right of the ground-rent tenant in the fund, but it is to be followed by the order to extinguish the ground-rent and an order following the distribution proceedings before the auditor. The latter order is the final order which would involve the question of the right of the tenant of the ground-rent to receive payment of the proceeds of the sum paid into court. The order to pay the money into court was the only order which the court had jurisdiction to make on the petition filed and under the rule granted thereon. The act gave the court no authority to enter a declaratory judgment, as prayed for in the petition, and requested in the answer filed, which would decide the question of the proper distribution of the fund.
The appeal is quashed.