230 Pa. 240 | Pa. | 1911
Opinion by
In a proceeding to assess damages for injuries resulting to an abutting property owner by reason of the grading, curbing and widening of a certain street in the defendant borough the estate of T. Lee Clark on appeal was awarded $4,250. The verdict fixed the amount of the damages and the liability of the borough. It is not therefore interested in what distribution shall be made of the fund in controversy here. Its liability is the same, no matter to what claimants the fund may be awarded. The questions raised by this appeal grow out of claims made by the estate of Clark on one side and the mortgage creditor on the other. The Clark estate as owner of the property injured at the time of the grading and widening of the street claims the entire fund while the mortgagee claims enough of the fund to liquidate the unpaid balance of his mortgage. At the time of the street improvement the injured property was heavily mortgaged but not to its full value. After the street improvement the property was so depreciated in value that on a foreclosure sale only a fractional part of the mortgage debt was realized. The mortgagee having failed to realize the amount of his mortgage out of the proceeds of the foreclosure sale after the grading and widening of the street, presented a petition in the court below asking for leave to intervene as a party to the proceeding to assess the damages of the abutting property owner in order that he might participate in the damages awarded to the extent of the unpaid balance of his morgtage. The court granted a rule to show cause why as mortgagee he should not receive out of the damages that might be awarded so much thereof as he may be entitled to in order to liquidate his claim under the mortgage. To this rule appellant made answer denying the right of the holder or owner of the mortgage to participate in any damages that might be
Assignments of error overruled and decree affirmed. Costs to be paid by appellant.