369 Pa. 300 | Pa. | 1952
Opinion by
This is a proceeding to recover on the bond of a Notary Public. It arises from still another of the “Bennewitt” mortgage transactions.
The complaint filed by the use-plaintiff, Willow Highlands Company, averred that use-plaintiff had agreed to advance the sum of $5500 on a loan to Herbert and Mary L. Leach to be secured by a first mortgage on premises owned by them at 5803 North 7th Street, Philadelphia; that H. Richard Bennewitt made application to the Land Title Bank & Trust Company for title insurance on the mortgage; that the use-plaintiff delivered to the Trust Company its check in the sum of $5500 to cover the amount of the mortgage, which check was cashed by the Trust Company and deposited in its settlement accounts and allocated to the mortgage settlement on the premises; that at the settlement for the mortgage Edward W. Sliker, a Notary Public, certified that Herbert and Mary Leach swore and subscribed before him that they were the owners of the premises; that the purported signatures of Herbert and Mary Leach to the affidavit were forgeries; that at the settlement Sliker also certified as a Notary Public that Herbert and Mary Leach personally appeared before him and acknowledged the mortgage upon the premises to be their act and deed and desired that it might be recorded as such; that the mortgage was thereupon recorded in the office of the Recorder of Deeds in and for the County of Philadelphia; that the purported signatures of Herbert and Mary Leach on the mortgage were forgeries; that neither of them
Maryland Casualty Company filed an answer to the complaint denying that the use-plaintiff sustained the loss claimed by it, and in New Matter it averred that the payment made by the Trust Company’s banking department to Bennewitt on his forged endorsements on the settlement check, which had been drawn by its real estate department, was not in fact charged by the banking department against the real estate department nor by the latter against the special deposit of the use-plaintiff; that the use-plaintiff’s deposit with the real estate department of the Trust Company was not spent and the entire deposit was refunded by the real estate department to the use-plaintiff, so that the latter suffered no loss whatever in the subject matter of this suit; that the loss sustained by the Trust Company by reason of its payment to Bennewitt was insured under a policy issued to the Trust Company by the Indemnity Insurance Company of North America, which paid the amount of the loss in full to the Trust
The use-plaintiff filed preliminary objections to this New Matter and moved for judgment on the pleadings. The court entered judgment against both defendants in favor of the Commonwealth for the penal.sum of the bond, $10,000, and judgment in favor of the use-plaintiff against both defendants for the amount of the mortgage less the recovery of the dividend from Bennewitt’s bankrupt estate, or $4366.60, with interest. From those judgments the defendant Sliker and Maryland Casualty Company appeal.
The immediate, obvious conclusions to be derived from this record are: (1) that Sliker violated the condition of his official bond in not faithfully performing the duties of his office, — a condition prescribed by the Act of June 10, 1931, P. L. 480; (2) that Sliker and his surety thereupon became liable for any and all loss occasioned thereby; and (3) that such a loss occurred by reason of the payment of $5417.75 by the Land Title Bank & Trust Company to Bennewitt. It is not a valid claim on the part of Sliker and the surety on his bond that the money paid to Bennewitt was paid in reliance on the latter’s forged endorsements on the check rather than on his forged signatures and false acknowledgments to the mortgage. Sliker’s act in making the false certificate of acknowledgment was an efficient, proximate cause of the loss; it is not material that it may not have been the sole cause. It is true that there can be no recovery in an action on a notary’s bond for his misconduct in falsely certifying
This brings us to the real question presented by the pleadings, which is, not whether there was a loss for which defendants are responsible, but who suffered that loss? If the Trust Company had paid to Bennewitt the moneys of the use-plaintiff there would, of course, be no doubt but that it was the use-plaintiff which would have had a cause of action against the defendants, and if the Trust Company had subsequently reimbursed the use-plaintiff for the latter’s moneys improperly paid to the wrong party it would have been subrogated to the use-plaintiff’s rights. Or if the Trust Company had issued its policy of title insurance to the use-plaintiff and had made payment to it in performance of its obligations thereunder because of the mortgage being a void instrument the Trust Company would likewise have been subrogated to the latter’s right of action. But neither one of those assumed situations appears from the facts set forth in the pleadings. On the contrary, it is expressly stated in the Maryland Casualty Company’s New Matter that the use-plaintiff’s money, which had been specially deposited in the
The judgment in favor of the Commonwealth is affirmed; the judgment in favor of the use-plaintiff, Willow Highlands Company, is reversed. The record is remanded to the court below for further proceedings in accordance with this opinion.
For former cases see Land Title Bank & Trust Co. v. Cheltenham, National Bank, 362 Pa. 30, 66 A. 2d 768; Commonwealth to use v. United States Fidelity & Guaranty Co., 364 Pa. 543, 73 A. 2d 422.
The alleged interest of the Indemnity Insurance Company of North America arises solely through subrogation to the right of the Land Title Bank & Trust Company, and therefore it is not a necessary party to these proceedings; (Pa. R. C. P. 2002 (d)).