192 Pa. 321 | Pa. | 1899
Opinión by
We agree entirely with, the learned court below in holding that the mortgage of the plaintiff in this case was a purchase money mortgage, under the evidence, and was entitled to priority in the distribution. The delivery of the deed to the mortgagor and of the mortgage to the mortgagee were concurrent and simultaneous acts, and the money for which the mortgage was given was in actual fact a part of the purchase money paid for the property, at the very time of the delivery of the deed. In both the cases, Cohen’s Appeal, 10 W. N. C. 544, and Albright v. The Association, 102 Pa. 411, this Court held that it was not necessary that the lien should disclose on its face that it is for purchase money if in point of fact, whether it be a mortgage or judgment, it was given for purchase money. We agree with the auditor in holding that the positive prohibition contained in the tenth clause of the building contract against the filing of any liens by any subcontractors, or any other persons, excluded the claimants who were subcontractors from filing any liens, notwithstanding the provisions contained in the third clause. The learned court below having held otherwise, and reversed the auditor on this subject, subsequently, in the second opinion filed, changed its ruling on account of the decision of this Court in Morris v. Ross, 184 Pa. 241, and sustained the action of the auditor in rejecting the claims of the subcontractors. The decision of the court in the first opinion was based upon the theory that the provisions of the third section of the contract contemplated the filing of liens and their release before payments could be required, and hence sanctioned the filing of liens, and as there was an absolute repugnance between the 3d section and the 10th in tins respect, it could not be held that the right to file liens under the 3d section could be intended to be taken away by the 10th. But in the case last cited we had the precise question before us, and we decided that the positive provision prohibiting all liens must prevail, and that the provision authorizing the owner to require of the contractor sufficient evidence that the premises were free of all liens before payments could be demanded, and to retain an amount sufficient to indemnify him against such liens,
The decree of the court below is reversed at the cost of the appellee, and the record is remitted with instructions to distribute the fund in accordance with this opinion.