Egolf Building & Loan Ass'n v. Cleaver, 228 Pa. 60

Egolf Building & Loan Ass'n v. Cleaver

228 Pa. 60 | Pa. | 1910

Opinion by

Mr. Justice Brown,

The appellant, who was a stockholder in the George Egolf Building & Loan Association, borrowed $2,000 from it on a mortgage, pledging his stock as collateral security therefor. For some default on his part a sci. fa. was issued on the mortgage, but was discontinued shortly afterwards upon his paying all costs and a counsel fee. Nearly two years later, on November 4, 1909, the building association entered judgment against the appellant on his bond accompanying the mortgage, and his complaint is that he ought to have been allowed a credit of $586.09 — the value of his ten shares of stock at the time the judgment was entered. His petition, denied by the court below, was to have the judgment entered against him reduced to the extent of the value of his stock, and the question raised on this appeal is his right to the credit claimed.

About three months after the sci. fa. on the mortgage had been abandoned an attachment ad lev. deb. was issued by a judgment creditor of the appellant, under which his stock in the association was attached. There is justification for the charge made that the attaching creditor — the treasurer of the association — and his counsel, who was its solicitor, colluded to reach this stock as an asset of the appellant to be applied to the payment of the judgment upon which the attachment issued; but the collusion was a lawful one, to do a lawful thing. Patterson, though the treasurer of the association, had a right *63to issue his attachment, in which he summoned himself as treasurer as the garnishee; his counsel, though solicitor for the association, had the right to direct the sheriff to make no service upon the defendant, and to appear for both the attaching creditor and the garnishee, and the association had the right to keep Cleaver in utter ignorance of the attachment of his stock. These and other matters to which our attention has been directed were not illegal, and this is all we need say about them. With the good taste exhibited by the attaching creditor and his counsel we have no concern. We pass only upon the legal right asserted by the appellant.

Appellant’s claim that he ought to be allowed a credit for the value of his stock is based upon what he alleges was such an appropriation of it by the appellee. He frankly admits that he had made no such appropriation and relies solely upon what appears in the praecipe for the sci. fa. on the mortgage as evidence of the appropriation by the appellee. In that praecipe, signed by the association’s solicitor and sworn to by its secretary, there was a statement that the mortgagor was entitled to credit for his stock. How much is not stated. It was not shown by the appellant that either the solicitor or the secretary of the association had any authority to give such credit or to make any appropriation of the value of the stock to the mortgage indebtedness, while the affirmative proof submitted by the appellee was that neither had any such authority, and, therefore, when the proceedings on the mortgage were discontinued, the liability of the appellant on his bond and mortgage continued to be just what it had been before the sci. fa. was issued. It is admitted that prior to that time there had been no appropriation of the stock by either the mortgagee or the mortgagor. But there is evidence coming from the appellant himself, in writing, shortly before the judgment was entered, that he regarded the whole amount of it as due, and that he was liable to pay it without any credit for the stock. On October 12, 1909, he was informed by the secretary of the association *64that his stock had been attached and that he would have to pay off “ the full $2,000.” To this he replied, on the twenty-sixth of the same month, that as “the $2,000 must be paid we must have a little more time,” adding that he would get from another building association the balance which he needed to pay off the entire amount of the judgment. It would have been error to allow him the credit asked for. The stock had been attached and had passed beyond his power to apply it to his indebtedness. The appeal is dismissed and the judgment as entered is affirmed.