Fidelity Insurance Trust & Safe Deposit Co. v. Commonwealth Title Insurance

31 A. 344, 166 Pa. 558, 1895 Pa. LEXIS 1248

• Court: Supreme Court of Pennsylvania
• Decided: March 11, 1895
• Docket: Appeal No, 458
• Status: Published

Opinion

Opinion by

Mb. Justice Mitchell,

This suit was prematurely brought. The defendant is a stakeholder, and only liable to plaintiff on certain conditions which have not been performed. These conditions, so far as they authorize payment of the stake to the plaintiff, are that plaintiff shall succeed in getting the court wherein the attachment by The Pennsylvania Company for Insurances on Lives etc. against the land is pending, to quash the attachment, or that after judgment obtained by the Pennsylvania Company it shall fail to establish the liability of the land to be attached or taken in execution thereon. Neither of these conditions has been fulfilled. It is argued by appellant that the Pennsylvania Company having allowed thirteen years to elapse without doing anything must be deemed to have failed to establish the liability of the land to the attachment. Bnt this argument overlooks the right of the Pennsylvania Company to a hearing. The attachment suit is still pending and may yet result in favor of the Pennsylvania Company, and notwithstanding the lapse of so long a time the latter cannot be adjudged to have failed, until that suit has been heard and determined.

The appellant however is substantially correct in its interpretation of the agreement on which the rights of the parties rest. As a stranger to the attachment suit the plaintiff had no standing to intermeddle with it, or to require the Pennsylvania Company to do anything with regard to it. But by the agreement of December, 1888, the Pennsylvania Company recognized plaintiff’s interest in the land and in the litigation, and having agreed to the substitution of the plaintiffs money for the land, has subjected itself to certain duties to the plaintiff, one of which is to go on, and bring the attachment to an end. It w'as not in the contemplation of the parties that the Pennsylvania Company should do nothing, and simply keep the plaintiff’s money tied up in the deposit, with no benefit to either. The agreement authorizes the plaintiff to intervene in the attachment and move for its dissolution, and on the other hand puts on the Pennsylvania Company the duty of prosecuting its attachment to a successful termination by the establishment of the liability of the land. Appellant’s only mistake was in proceeding in the first instance against the stakeholder, and not against the Pennsylvania Company under the agreement. This it might do by bill in equity, or by a rule in the attachment suit to intervene and compel the plaintiff therein to go on or be nonsuited. So far as the case now appears, the equity powers' of the court in which the attachment is pending are sufficient to afford relief, and the plaintiff has standing to invoke them by virtue of its rights under the agreement. After that suit is determined in its favor and the conditions of the agreement thereby fulfilled, the plaintiff will be in position to demand the surrender of the fund by the present defendant.

Judgment affirmed.