259 F. 610 | M.D. Penn. | 1919
The referee’s certificate fails to bring Defore the court the necessary facts for an intelligent disposition of the matter presented. Whether the attorney’s commissions and costs rejected by the referee followed the mortgage debt in a disposition of the fund realized depends upon the contract between the parties and the facts pertaining to the collection, or attempted collection, of it. The attorneys for the trustee and the mortgagee have agreed upon a statement of such facts, and from it it appears that the Peerless Weaving & Throwing Company, bankrupt, executed and delivered October 15, 1917, to the Euzerne County National Bank a mortgage upon its corporate property in the borough of West Wyoming, Euzerne county, Pa., conditioned for the payment of $10,000. It was provided that, in default of the payment of installments and interest when due, or for failure to maintain a certain amount of fire insurance upon the premises for the benefit of the mortgagee, at its option the whole debt owing, with interest, might be collected, together with an attorney’s commission of 5 per centum.
At the expiration of a year from date, the mortgagee having failed to meet certain installments due, the bank exercised its option, and declared the whole mortgage due and payable forthwith, and placed it in the hands of an attorney for collection. On February 11, 1919, the mortgagor having failed to pay the mortgagee, and having further defaulted, in its neglect to keep the premises insured, the attorney caus
This is error. The bond and mortgage provide that if, by reason of any default specified, a writ of fieri facias is properly issued upon the judgment obtained on the bond, by warrant of attorney or otherwise, or a writ of scire facias is properly issued upon the mortgage, an attorney’s commission for collection, viz. 5 per cent., shall be payable, and shall be recovered in addition to all principal, interest, premium of insurance paid, besides costs of suit, etc.
The plaintiff’s exceptions are sustained, and the referee is instructed to make distribution accordingly.