176 A. 548 | Pa. Super. Ct. | 1934
Argued October 11, 1934. This is an appeal by plaintiffs from an order discharging a rule for judgment for want of a sufficient affidavit of defense.
On July 9, 1928, the plaintiffs, owners of a bond and mortgage given by Abraham Sobel, entered into an agreement with a building and loan association, now merged with the defendant association, whereby the plaintiffs extended the time for payment of the principal of the bond and mortgage for a period of three years, or until April 23, 1931, and the building and loan association agreed "to make prompt payment of the interest and the balance of the principal of said bond so secured, when and as the same shall respectively fall due, together with all taxes and water rents assessed, and to maintain the fire insurance as aforesaid." It was also agreed that all the terms, conditions, stipulations, and provisions contained in the bond and the mortgage not inconsistent with the extension agreement were to remain in full force and effect.
In April, 1933, default having been made in payment of principal and interest, the mortgage was foreclosed, resulting in a deficiency judgment. Thereupon this action was begun for the recovery of the amount of such judgment. These facts were admitted by the affidavit of defense, and for further answer it was alleged that on March 16, 1932, Jacob P. and Rose Magness, then the real owners of the premises, entered into a second extension agreement with the plaintiffs, mortgagees, without the knowledge and consent of the *347 defendant, whereby the time for the payment of the mortgage was extended until April 23, 1934; that, at the time the first extension was made, the defendant was not the owner of the premises covered by the mortgage but was the holder of a second mortgage; that it did not become the owner of said premises until the mortgage was foreclosed in 1933; and that the defendant was relieved from its obligations under the first extension by reason of the making of the second extension without its knowledge and consent.
Assuming for the purpose of this motion that at the time the first agreement for an extension was made, as alleged in the affidavit of defense, the defendant was not the owner of the premises covered by the mortgage but was interested therein solely as the holder of a second lien, and that the time for the payment of the bond and mortgage as provided for by the first extension was further extended without the knowledge or consent of the defendant, the order of the lower court was correct. The first extension agreement was in law a suretyship obligation on the part of the defendant: Fidelity Mutual Life Ins. Co. v. Power,
In the case we are now considering, no changes were made in the conditions of the bond and mortgage other than an extension of time for payment, and the reference to the bond and mortgage was in terms almost precisely the same as that in the case decided by the Supreme Court, to which we have just referred; the terms of the mortgage are referred to, there is a specific undertaking to perform them, and the defendant was not the owner of the premises at the time it made the contract with plaintiffs.
Willock's Estate,
An appellate court should not reverse an order discharging a rule for judgment for want of a sufficient *349
affidavit of defense unless the case is clear and free from doubt: Colonial Securities Co. v. Levy,
The order of the lower court is affirmed.