
    Rommel v. Summit Branch Coal Company, Appellant.
    
      Equity — Jurisdiction—Specific performance — Equitable status.
    
    A bill in equity against a corporation to compel the specific performance of a contract under which the corporation had agreed to issue bonds for scrip, cannot be maintained where it appears that the mortgage securing the bonds had been foreclosed, that the plaintiffs participated in the foreclosure proceedings 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 distribution filed the bill.
    In such a case the plaintiffs are not. entitled to relief in equity, first, because the specific act sought to be compelled was not within the power of the defendant company, 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.
    Argued Oct. 21, 1901.
    Appeal, No. 166, Oet. T., 1901, by defendant, from decree of C. P. No. 5, Phila. Co., March T., 1901, No. 2185, on bill in equity in case of Emma C. Rommel, Lewis A. Rommel, John Rommel, 3d, and Jacob Rommel, Executors of John Rommel, Jr., Deceased, and Emma C. Rommel v. Summit Branch Coal Company.
    Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.
    Reversed.
    Bill in equity for specific performance.
    From the record it appeared that Emma C. Rommel was the holder of a scrip certificate of the defendant, issued May 2, 1899, for $300, certifying that “ said Emma C. Rommel, or bearer, is entitled, on demand made to the Summit Branch Coal Company, to receive a bond or bonds of the Summit Branch Coal Company in exchange for an equal amount of this scrip when presented in even amounts of $1,000, or greater multiples thereof.” The estate of John Rommel, Jr., deceased, the other plaintiff, held a certificate in the same terms, issued at the same time, for the sum of $850.
    On November 8, 1899, the Girard Trust Company, trustee under the mortgage securing the bond of the defendant company, instituted foreclosure proceedings on the mortgage. The plaintiffs intervened in the foreclosure proceedings, and permitted the property covered by the mortgage to be sold. After the sale they presented their scrip to the company, and demanded a bond. Upon their demand being refused, they instituted this suit, and the court below entered the following decree :
    And now, June 21, 1901, the above case having been heard upon bill and answer, it is ordered and decreed :
    1. That upon the delivery by the plaintiffs to the defendant of the certificates of scrip for fractions of bonds issued by the said defendant company, one of which certificates, in the sum of $300, stands in the name of Emma C. Rommel, and the other of which certificates, in the sum of $850, stands in the name of the estate of John Rommel, Jr., deceased, that the said defendant deliver to the plaintiffs one bond for $1,000, being one of a series of 1,400 bonds of like amount, secured upon all and singular the railroads, estates, real and personal, corporate rights and franchises, and premises of the said defendant.
    2. That all the costs in the above case be paid by the defendant.
    
      December 16,1901:
    
      Error assigned was the order of the court.
    
      F. P. Prichard, with him John G. Johnson, for appellant.
    The separate owners of scrip, aggregating $1,150, had no right to claim delivery to them of a bond.
    Though two separate owners might demand a bond of $1,000, under a demand made at a proper time, they had no right to receive the same after a decree of foreclosure fixing the total amount of the indebtedness secured by the mortgage.
    
      J. Martin Pommel, for appellees.
   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.  