257 Pa. 213 | Pa. | 1917
Opinion by
This case involves the distribution of a fund raised at sheriff’s sale upon the foreclosure of a mortgage; the matter was referred to an auditor, whose report was confirmed by the court below; Emma O. Bergdoll has appealed from the decree of confirmation.
Samuel Shoemaker owned a property at Fifty-second street and Wynnefield avenue, Philadelphia, which, on September 9, 1909, he mortgaged to the Land Title and Trust Company for $40,000; the mortgage was forthwith recorded; subsequently, in 1914, foreclosure proceedings were instituted thereon and a judgment entered against the mortgagor for $43,946.67; thereafter, on February 2, 1915, the property was sold at sheriff’s sale realizing $46,600; at settlement, after paying taxes and charges, $35,560 of this amount was handed to the mortgagee, and the balance, $9,305.57, was paid into court for distribution, being the fund in controversy.
The $40,000 mortgage was intended as collateral, and, when executed, the trust company loaned only $32,000 to Mr. Shoemaker; at that time the latter gave the mortgagee his demand note containing the following provision: “It is further agreed that the securities hereby pledged, together with any that may be pledged hereafter, shall be applicable in like manner to secure the payment of any......future obligations of the undersigned held by the holders of this obligation, and all such securitieis in their hands shall stand as one general con
August 5, 1912, Mr. Shoemaker gave to the trust company a bond for $150,000, reciting that, whereas the obligee had agreed to insure the erection and completion, free «of liens, of a certain building on Wayne avenue, Philadelphia, in favor of the holders of a mortgage thereon, the obligor agreed to indemnify the obligee “of and from all loss, damage, costs, charges, liability or expense” caused by this undertaking; thereupon, the trust company issued its policy of insurance in the sum of. $150,000 to Eli K. Price et ah, executors, in connection with a mortgage of like amount executed by Samuel Shoemaker et al.; the building was not completed by Shoemaker, and mechanics’ liens -were filed against it; suit was brought upon the $150,000 mortgage, and judgment recovered; the property was. sold under execution on this judgment, but the sum realized was $6,892.62 short of the amount required to pay the holders of the mortgage their debt, interest and costs; this deficiency was paid by the trust company under its title policy, on account of the loss sustained by the mortgagees through the noncompletion of the. building; in addition, the company was obliged to deposit with a referee $16,000 to meet certain mechanics’ liens filed against the premises, should such liens be sustained at law in,a proceeding-pending to test their validity.
May 28,1913, Samuel Shoemaker gave Emma C. Berg-doll, the appellant, his note for $18,000; this instrument ■recited that Mr. Shoemaker had on the, same day executed and delivered to. the holder thereof a bond and mortgage for a like amount, secured upon the property at Fifty-second street and Wynnefield avenue, being the same premises covered by the before-mentioned $40,000 mortgage; the note contained also a clause to the effect that it was to secure past and future obligations; the $18,000 bond and mortgage was duly recorded as a second lien upon the property in question, subject to the
There were several claimants on the fund; but the contest we have to decide is between the trust company and Mrs. Bergdoll. The former contends that, on the facts as we have recited them, the $40,000 mortgage, in accordance with the agreement executed at the time of the original $32,000 loan, was executed and delivered not only as collateral for this first loan, but also to secure payment of any “future obligations” of Mr. Shoemaker which might thereafter be held by the mortgagee; that the $150,000 bond accepted from Mr. Shoemaker, in 1912, is such a “future obligation”; that therefore the trust company is entitled to recover out of the fund in court the amount which this latter obligation has and will cost it. On the other hand, Mrs. Bergdoll contends that, when she took her mortgage, in 1913, although the trust company then held the $150,000 bond executed by Mr. Shoemaker, and had issued its policy of title insurance in connection therewith, yet, at that date, its liability on such policy was merely potential; that the trust company never paid any actual losses thereunder until May, 1914, some months subsequent to the date of her mortgage ; hence, that she has a prior lien and is entitled to the fund in court.
The learned auditor accepted the view of the trust company, and made his award accordingly. In so doing, he finds that the latter is entitled to the sum of $6,892.62, with interest from May 14, 1914, and to the balance of the fund, should the liens upon the property whose completion it insured be declared valid; but he adds that, if these liens are not sustained, then the distribution will have to be restated.
The questions Ave have to decide are narrow, but very nice. They may be reduced to these: (1) When the trust company, in 1912, accepted and became the holder of Mr.
We think all the propositions just enumerated must be answered in the affirmative. The bond accepted in 1912 was an obligation of Mr. Shoemaker, the original mortgagor, which recited the’title policy issued by the trust company as part of the agreement then entered into; hence, both of these instruments must be considered in deciding as to the nature of that agreement; and, when so considered, it seems plain that the agreement in question 'formed a binding contract on the part of the trust company, if called upon so to do, to pay on Mr. ^ Shoemaker’s behalf any losses which his default in finishing the building described in the bond and title policy might cause to the parties insured by the latter instrument; which, in effect, was a contract to make future advances. For these advances Shoemaker was liable to the trust company on the $150,000 obligation, to secure which the latter held the $40,000 mortgage as collateral. We make this last statement, as the agreement of 1909 was that the mortgage in question should stand as collateral not only for Shoemaker’s $32,000 obligation, but also for any future obligations of the debtor which might
If, under an arrangement such as we have before us, we should be obliged to hold, as contended by the appellant, that the $40,000 mortgage would have no lien to protect the trust company’s present claim until the date of the actual payments made by the latter on its title policy, it would be practically impossible for such corporations, when issuing policies like the one at bar, adequately to protect themselves against loss by the accept
' For discussion of the general principles involved in • the present case, reference is made to the following authorities, most of which were cited to us by both sides: Lyle v. Ducomb, 5 Binney 585; Stewart v. Stocker, 1 Watts 135, 140; Garber v. Henry, 6 Watts 57; Irwin v. Tabb, 17 S. & R. 418; Ter-Hoven v. Kerns, 2 Pa. 96 (in connection with last three cases, see Moroney’s App., infra); Parmentier v. Gillespie, 9 Pa. 86; Moroney’s App., 24 Pa. 372; Bank of Montgomery County’s App., 36 Pa. 170; Bank of Commerce App., 44 Pa. 423; McClure v. Roman, 52 Pa. 458; Parker v. Jacoby, 3 Grant 300; Taylor v. Cornelius et al., 60 Pa. 187, 196; Kerr’s
We have not felt called upon to pass separately on the several specifications of error, for all of them are defective in form; in each instance they assert the court below erred in dismissing a certain exception to a designated finding or conclusion of the auditor, but in no instance do they contain — in totidem verbis — the court’s action on the particular exception, nor do they show where the matter referred to is to be found in the paper books or the appendix: see Prenatt v. Messenger Printing Co., 241 Pa. 267, 269-70; Markleton Hotel Co. v. Connellsville & State Line Railway Co., 242 Pa. 569, 572-3; Pfaff v. Bacon, 249 Pa. 297, 300. A proper form for such assignments will be found in the first of these cases.
The decree is affirmed.