170 Pa. 385 | Pa. | 1895
Opinion by
Anna Tyson borrowed $1,400 of the Serial Building and Loan Association of Mahanoy City, Pa., on the third of January, 1883, and to secure the payment of the same she gave to the lender a mortgage on her real estate and an assignment of seven shares of its stock. Hemperley recovered a judgment against her on the twenty-first of November, 1887, and nine days thereafter issued process upon it, on which he attached the assigned stock and summoned the association as garnishee. His judgment was a lien on the real estate covered by the mortgage, and by virtue of other process issued thereon he sold the former, subject to the latter. He acquired nothing by his sale, as the proceeds of it were insufficient to satisfy the prior judgment liens. In 1892 the stock matured, and the association, in compliance with the direction contained in the assignment of it, appropriated the amount realized from it in satisfaction of the mortgage debt. The association having entered the plea of nulla bona in the attachment proceeding, a trial was had on the issue so made,
Was the association estopped from exercising its right of appropriation under the assignment by anything that Lyon said at the sale of the real estate on the appellant’s judgment? In answering this question we must not overlook the fact that the time for the payment of the loan was at the maturity of the stock, and that when the real estate was sold the mortgage was a valid lien upon it for the whole debt. The statement which Lyon is alleged to have made at the sale was therefore in harmony with the facts and the legal rights of the association. It was in no sense a misrepresentation, or inconsistent with the claim of the association under the election of its assignor. It was made three months after the attachment proceedings were instituted, and there was nothing in it which rendered necessary or furnished good reason for a sale of the real estate upon the appellant’s judgment at that time. According to his own showing he knew the value of the stock and how it was held, and that he could realize nothing on his judgment by the sale. Our conclusion is that the association was not estopped by the statement we have considered from exercising its contract rights. The case was correctly tried in the court below, and the charge of the learned judge amply justified the judgment entered there.
Judgment affirmed.