Bier v. Keer, 70 Pa. Super. 570

70 Pa. Super. 570 | Pa. Super. Ct. | 1919

Opinion by

Williams, J.,

This was a suit in equity to determine the right to a fund in possession of a building association. The court found, inter alia, that in 1916, Mrs. Keer was the owner of premises subject to a first mortgage of $4,000, and a second mortgage of $1,200, the latter held by defendant association; May 10, 1916, plaintiff recovered judgment against Mrs. Keer for $3,372; May 16th, Mrs. Keer, for $500, assigned to Isabella Hermiston her interest in six shares of building association stock subject to the rights of the association, to which it had been assigned as collateral security for the payment of its mortgage; August 7th, the premises were sold under two executions, plaintiff’s and the first mortgagee’s, for $5,425, which fund paid the first mortgage and a part of the association mortgage. The amount unpaid was charged against the value of the stock assigned, leaving a balance due thereon of $543.79, which is claimed by plaintiff as judgment creditor, and by Isabella Hermiston, as assignee of Mrs. Keer. The court held Mrs. Hermiston was entitled to the fund, and dismissed the bill.

Appellant argues (1) that the payment of dues on the stock was a payment on the mortgage debt, and pro tan-to an extinguishment; wherefore the full value of the stock should have been applied to the second mortgage, releasing the fund in the sheriff’s hands to the payment of plaintiff’s judgment; (2) that plaintiff is subrogated to the rights of the building association in the fund.

The power to appropriate under the assignment by Johanna Keer to the association is not self-operating, and until action is taken by it the election remains with the association. In Erthal v. Glueck et al., 10 Pa. Superior Ct. 402, the assignment was similar to the present one; the association chose to appropriate the value of the stock to its mortgage; here it did not so elect; and therein lies the difference.

Under Hamilton Trust Co. v. Hoskins, 244 Pa. 1, the association loses its right to appropriate (pro tanto) : Newhoff v. Rochester et al., 66 Pa. Superior Ct. 297, upon its election to satisfy the debt from the mortgaged premises. The association, having exhausted its right, nothing remains to which the claim of subrogation can attach.

The decree is affirmed, appellant to pay costs.