19 Pa. Super. 396 | Pa. Super. Ct. | 1902
Opinion by
A single question is involved in this case, but, in order to
Defendant entered into articles of separation from his wife, duly executed, in which it is stipulated: “ The said Dr. Edmund F. Steckel, for himself, his heirs, executors and administrators, hereby covenants and agrees to and with James S. Biery, Esq., Trustee for Elizabeth P. Steckel, that he will pay to the said Trustee, for the use of his wife and his minor daughter, Mabel, the sum of three hundred dollars per year, payable in monthly instalments, payable at the end of each and every month, to be computed from the day when the said Elizabeth P. Steckel shall move separate and apart from her said husband, and such annual payment to continue during the natural life of the said Elizabeth P. Steckel, or so long as they live separate and apart.” On the same day defendant executed a bond to the trustee, in the penal sum of $2,000, conditioned for the payment of $300 annnally, as provided in the articles of separation, in which occurs this proviso: “ Provided, however, and it is hereby expressly agreed, that, if at any time default shall be made in the payment of any of said monthly payments for the space of fifteen days after the same shall fall due, then and in. such case the whole principal debt aforesaid of two thousand dollars shall, at the option of the said trustee, his certain attorney, executors, administrators or assigns, become due and payable immediately and payment of said principal of two thousand dollars and all interest thereon may be enforced and recovered at once, anything herein contained to the contrary thereof notwithstanding.” This bond was secured by a mortgage, containing the condition of the bond and the proviso above recited.
Upon failure to pay the monthly instalments provided for in the articles of separation, the trustee entered judgment upon the bond upon a preecipe in which occurs this recital: “ In default of compliance with the provisions of the bond hereto attached and with the terms of the agreement between said Elizabeth P. Steckel, the use plaintiff, and Edmund F. Steckel, the defendant, a copy of which is also attached, enter judgment in favor of said plaintiff and against said defendant for the sum of two thousand one hundred dollars, being for principal and five per cent attorney’s commissions for collection.” Upon the
Application was made to the court of common pleas to open the judgment, which was refused, and the refusal assigned for error in an appeal to the Supreme Court. Upon the consideration of that appeal (Biery v. Steckel, 194 Pa. 445) that court said: “ There is no ground whatever for the obligor’s contention that the marriage of his daughter reduced his liability upon the contract from $25.00 per month to $15.00 per month. It is a contention flatly opposed to the plain provisions of the articles of separation and the equally plain mandate of the bond which was prepared by his own counsel and approved and executed by him. The other contention that, notwithstanding the provision in the bond which authorizes the collection of the principal sum of two thousand dollars, in case of default in payment of the monthly instalments for a period of fifteen days, he could, by a tender of the amount of the instalments unpaid for a period of six months, set aside the proceedings pending for at least five months, is equally without merit.”
Upon the return of the record to the court below, the attachment execution was prosecuted to judgment and, April 4,1900, the trustee entered of record this receipt: “ Received of Hannah Clayberger, garnishee under attachment execution No. 36, April Term, 1898, $690; also received, April 5,1900, of Second National Bank of Allentown, Pa., one of the garnishees, under said attachment execution, $500.84, on account of the above judgment, within the decree of the court, as affirmed by the Supreme Court, less costs $27.44.” Subsequently an alias fi. fa, was issued upon the judgment and condemnation being waived, the premises described in the mortgage securing the bond were sold thereon for $2,502, of which sum $2,392.59 were paid into court for distribution. A commissioner was appointed to make the distribution and, upon his report, confirmed by the court, the sum of $1,163.40 realized on the attachment previously issued, was deducted from the judgment and the balance paid out of the proceeds of the sale. From this decree of distribution, the trustee appealed,' claiming the entire amount of the mortgage, on the ground that it was a continuing obligation for the performance of the stipulations of the articles of separation, With this contention we cannot agree. When default was
