Dollar Savings Bank v. Duff, Appeal, No. 106

Appeal, No. 106 | Pa. | Dec 31, 1920

Per Curiam,

On April 25, 1895; John C. Duff, the then owner of a tract of land in Beaver County, executed a written lease to C. R. Swetland & Sons of a vein of coal and all the fire clay beneath it, together with the iron ore and sand bank in three acres of it. The term of the lease was twenty years. By certain assignments all the rights of Swetland & Sons passed to the Darlington Brick & Mining Company. At the time Duff executed the lease the land was subject to a mortgage for $10,000 which he had given to-the Dollar Savings Bank. It was subsequently reduced to $4,000, and the Farmers National Bank of Beaver Falls is the present holder of.it. In 1918 the bank procured a writ of scire facias to be issued on the mortgage, followed by an alias and a pluries writ, in which last writ the Darlington Brick & Mining Company was made a defendant. The writ was served upon it, and judgment for $4,519 was entered against the defendants. This was followed by a writ of levari facias, in pursuance of which the sheriff was about to sell the property when the brick and mining company presented its petition to the court below asking that it be permitted to pay into court the amount of the judgment on the mortgage, with interest and costs, to be taken out by the bank upon assigning to it the said judgment and writ of execution. The relief prayed for was granted and the bank took this appeal.

Denial of relief for which the appellee prayed would have been unconscionable. The first legal conclusion of the court below, not assigned as error, is, “The open, notorious and undisputed possession by the Darlington Brick & Mining Company of the leasehold in question and its operations on said tract of land since 1900, were sufficient to put the Farmers National Bank upon inquiry as to the rights and title of said company, and said bank is chargeable with notice of the actual rights and title, knowledge of which such inquiry would have developed.” More than two months before the pluries writ of scire facias was issued the treasurer of the brick and mining company met the directors of the bank and offered to purchase the mortgage by paying all that was due on it, together with costs. This was refused, and the sum of $20,000 was demanded for an assignment, though judgment was taken shortly afterwards for but $4,519. Nothing more need be said about the relief to which the appellee was manifestly entitled, and that the court had power to grant it is undoubted: Wunderle v. Ellis, 212 Pa. 618" court="Pa." date_filed="1905-06-22" href="https://app.midpage.ai/document/wunderle-v-ellis-6248183?utm_source=webapp" opinion_id="6248183">212 Pa. 618; Hopkins Manufacturing Company v. Ketterer, 237 Pa. 285" court="Pa." date_filed="1912-07-02" href="https://app.midpage.ai/document/hopkins-manufacturing-co-v-ketterer-6251343?utm_source=webapp" opinion_id="6251343">237 Pa. 285.

Appeal dismissed at appellant’s costs.