235 Pa. 298 | Pa. | 1912
.Opinion by
j This appeal is from an order discharging a rule for judgment for want of a sufficient affidavit of defense. The defendant purchased land under and subject to a mortgage made by his grantor and because of his default the land was sold by the sheriff under proceedings on the mortgage for an amount insufficient to pay the mortgage. An action was then brought on the bond of the mortgagor and a judgment was obtained against the administrator of his estate for the deficiency. This action was by the administrator against the grantee of the land on the implied covenant of indemnity.'
There is much in the facts that appear in the statement and in the averments in the affidavit of defense to
Any apparent want of harmony in the decisions as to the right of a party indemnified to recover without proof of loss by the payment of the debt or otherwise, disappears when the nature of the undertaking is considered and the distinction between an obligation to do a specified thing and one of indemnity against loss resulting from non-performance is observed. Where the indemnity is against liability there is a right of recovery as soon as a liability is incurred; where it is against loss by reason of a liability there is no right of recovery until a loss occurs: Stephens v. Penna. Casualty Co., 3 Am. & Eng. Ann. Cas., 478, Note. In 16 Am. & Eng. Ency. of L. (2nd Edition), 178, the rule is thus stated, “where the contract is strictly one of indemnity the indemnitee cannot recover until he has suffered actual loss or damage; the mere incurring of liability gives him no such right; but where the contract is to protect against liability, the indemnitee may recover as soon as his liability has become fixed and established, even though he has sustained no actual loss or damage at the time he seeks to recover.”
This distinction was pointed out in the recent cases of Wheeler v. Equitable Trust Co., 206 Pa. 428; Weightman v. Union Trust Co., 208 Pa. 449; Equitable Trust Co. v. Surety Co., 214 Pa. 159. In the opinion in
i The words “under and subject” in a conveyance, import that the grantee takes the land subject to an encumbrance, the amount of which has been deducted from the agreed price, and the covenant to be inferred fi’om it is that of indemnity for the protection of the grantor: Moore’s Appeal, 88 Pa. 450; Merriman v. Moore, 90 Pa. 78; May’s Estate, 218 Pa. 64. This is the doctrine of all our cases on the subject. The contract on which this action was brought being one of indemnity to the grantor, a recovery could not be had without proof of loss. The statement of claim did not show a loss, and it is averred in the affidavit of defense that no loss had been sustained. .
The order discharging the rule is affirmed.