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KREIDER v. BRUBAKER (06/24/52)

June 24, 1952

KREIDER
v.
BRUBAKER, APPELLANT



Appeal, No. 76, Jan. T., 1952, from decree of Court of Common Pleas of Lancaster County, Equity Docket, p. 84, No. 10, in case of Kenneth L. Kreider et ux. v. A. W. Brubaker, Trustee, et al. Decree affirmed.

COUNSEL

Harold E. Martin and A. W. Brubaker, in propria persona, for appellants.

Alfred C. Alspach, for appellees.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stern

[ 371 Pa. Page 280]

OPINION BY MR. JUSTICE HORACE STERN

More than four years ago -- on January 16, 1948 -- plaintiffs Kenneth L. Kreider and Christine G. Kreider entered into a written agreement with defendant A. W. Brubaker, Trustee under a so-called "Collateral Trust Agreement," whereby the latter agreed to sell to the former a dwelling house in the City of Lancaster for the sum of $12,500. Conveyance of the premises was to be made on or before April 1, 1948 and possession

[ 371 Pa. Page 281]

    was to be given to plaintiffs on the date of settlement. The title was to be good and marketable. Formal tender of the deed and tender of the purchase money were waived.

Plaintiffs entered into possession of the property on April 1, 1948, but, notwithstanding the long time that has since elapsed, settlement has not been made because, as plaintiffs claim, the defendant trustee has refused to take the necessary steps to make the title good and marketable notwithstanding plaintiffs' insistent demands to that end. In December, 1948 the trustee brought an amicable action in ejectment against plaintiffs and entered judgment therein by confession. Plaintiffs obtained a rule to show cause why the judgment should not be opened; depositions have been taken but no final order on the rule has been made.

On June 7, 1950 plaintiffs filed the present bill in equity for specific performance in which they allege that they paid the deposit of $1250 provided for in the agreement of sale; that they were ready, able and willing to make settlement on April 1, 1948 and at all times thereafter; that they arranged for a first mortgage of $8,000 on which they obligated themselves to pay interest; that they deposited in bank the balance due on the purchase price and have ever since maintained it there, without interest, awaiting settlement; that they have constantly called the defendant trustee's attention to the necessary steps to be taken by him to make the title good and marketable but he has ignored all such requests, even refusing to disclose the terms of the trust instrument upon which the so-called "collateral" trust agreement was based. The bill named as defendants, in addition to the trustee, Annie M. Brubaker, Fannie Brubaker, and A. Martin Brubaker who has since died, these persons having been designated as "trustors" in the collateral trust agreement. On June 8, 1950 service of the bill was made on Annie

[ 371 Pa. Page 282]

M. Brubaker and Fannie Brubaker, and on July 6, 1950 service was accepted on behalf of "A. W. Brubaker, one of the within named defendants," by the attorney who had represented him in all matters connected with the transaction and in the institution and conduct of the ejectment proceedings. Notwithstanding the notice endorsed on the bill requiring defendants to answer within 30 days after service thereof and that, in case of failure so to do, the bill might be taken pro confesso and an ex parte decree made against them, no answer was filed by any of the defendants within the 30 days nor at any time since. Accordingly, on September 28, 1950, counsel for aplaintiffs entered an order that the bill be taken pro confesso for failure to file an answer. On July 18, 1951 the court directed the prothonotary to enter this order, and on July 30, 1951 entered a final decree ordering the trustee to execute and deliver a deed for the premises to plaintiffs, plaintiffs thereupon to pay the balance of the purchase money due, without interest, and less the costs of the equity proceedings; it was also ordered that the ejectment proceedings be satisfied of record by the prothonotary. The trustee having failed to comply with this decree, the court, on September 14, 1951, decreed that the prothonotary should execute to ...


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