40 A.2d 457 | Pa. | 1944
The defendant, who is the appellant, borrowed $7,000 from the bank of which plaintiff afterward became receiver, and delivered his note dated April 27, 1927, for the payment of the loan on demand; the note contained a warrant to confess judgment and recited the delivery, as collateral security, of a bond and mortgage made by Jacob Zussman in the sum of $8,500. In 1928, the bank foreclosed on the Zussman mortgage and at the sheriff's sale purchased the property for $50.00, thereafter carrying it as collateral for the loan to defendant: compareGordon v. Mohawk Bond Mtg. Co.,
Defendant began the present proceeding on April 20, 1942, by petition to open this confessed judgment and show in defense that plaintiff had ". . . never at any time instituted proceedings to fix the fair value of the real estate sold in the aforementioned foreclosure proceedings," referring to the Zussman mortgage which defendant had delivered to the bank as collateral security.
The case was heard by Judge SWENEY who dealt with the petition as an application for an issue to try the fact alleged in relief of liability on the judgment: see Stroud's Appeal,
The order must be affirmed. The satisfaction of defendant's judgment on the Zussman mortgage discharged Zussman's liability on the judgment, leaving nothing to support the defendant's contention. The case is not within the terms of the statute. Section 1 provides that if a plaintiff in execution proceedings takes title, directly or indirectly, for less than the amount of the judgment, interest and costs, and ". . . seeks to collect the balance due" he shall petition the court ". . . to fix the fair market value of the real property sold . . ." Section 7 requires such petition to be filed within six months of the effective date of the Act if the sale occurred prior to that date. There has been no sale of land on the judgment confessed on the collateral note.
Order affirmed, costs to be paid by appellant. *209