Rommel v. Summit Branch Coal Co. , 18 Pa. Super. 482 ( 1901 )

Opinion by

William W. Porter, J.,

Assuming that the plaintiffs were entitled to a bond for $1,000 on surrender of scrip for $1,150, and assuming that parties holding fractional parts of such scrip could jointly demand the issuance of a bond, we arrive at the real difficulty in this case, which is to ascertain upon what equitable ground the bill of the plaintiffs is sustainable. The case was argued on bill and answer. The decree requires the issuance of a bond by the defendant company secured by a mortgage which, as alleged by the answer, has been foreclosed, and all the property, “ real and personal, rights and franchises mentioned in the said mortgage,” have been sold. But equity does not require the performance of impossible acts. The decree is for specific performance. The facts set up by the answer show impossibility of performance. Furthermore, they who demand equitable relief must disclose an equitable status. Here the plaintiffs knew of the foreclosure proceedings under the mortgage; participated therein by petition for leave to intervene ; were cognizant of the amount of the bonds included in the decree; permitted the property covered by the decree upon the mortgage to be sold; and before the distribution of the proceeds of the sale, ask in this separate proceeding that a bond be issued secured by the mortgage upon which the foreclosure has been had. The conceded purpose of this is that the bond thus to be issued and secured, shall have a standing to come in upon the proceeds of the sale. We think the plaintiffs are not entitled to relief in this proceeding, first, because the specific act sought to be compelled is not within the power of the defendant company on the facts set up by the answer; and second, because the plaintiffs were litigants in the forum which determined the amount secured by the mortgage in foreclosure, and by that forum their right to participation in the proceeds of the sale should be determined.

The decree of the court, below is set aside and the bill of the plaintiffs is dismissed.