36 A.2d 782 | Pa. | 1944
Plaintiff, Latoof Naffah, was the owner of certain land in Pittsburgh upon which he undertook the construction of an apartment building. He borrowed considerable sums of money from a bank, the loans being secured by mortgages on this and other properties, but *220 as he lacked resources to finance the building to its completion and became largely indebted to contractors and subcontractors he and his wife conveyed the property, under and subject to the mortgage liens thereon, to a committee of his creditors, the present defendants. The project did not work out and several years later the creditors' committee deeded the property, subject to the mortgages, to a vice president of the bank acting as its nominee.
The present proceeding is by a bill in equity which alleges that the bank, in the years 1928 and 1930, appropriated funds of plaintiff coming into its hands and applied them in part payment of his obligations on the mortgage bonds. The bill asks for an accounting for such funds.
It should be immediately obvious that defendants did not receive any of these moneys and that there is therefore nothing for which they can be called upon to account; were there any legitimate claim against them it would be in assumpsit for whatever amount plaintiff was obliged to pay (by reason of the bank's appropriation of his funds) in satisfaction of the indebtedness on his bonds.
But plaintiff has no cause of action whatever. He entirely misapprehends the principle of law which he is here attempting to invoke. Where land is sold and conveyed under and subject to a mortgage there arises an implied obligation on the part of the vendee to indemnify the vendor against the latter's personal liability for the debt, but this is true only if such obligation constitutes part of the consideration for the conveyance, in which case, the amount of the mortgage lien being deducted from the purchase money, the parties naturally intend that, as between them, the vendor is to be relieved from all liability thereon, and if, therefore, the mortgagee, instead of obtaining satisfaction from the land, proceeds against the mortgagor on his bond, the latter can call on his grantee for indemnity: Burke v. Gummey,
Even if, notwithstanding what has been said, plaintiff ever had any claim against these defendants, it has long since been barred by laches, as the court below properly held. For it would have arisen, at the latest, in 1930, and since, in proceedings of this nature, equity adopts the same limitation as prevails in actions at law, it would have been barred in six years thereafter, no attempt having been made to deceive plaintiff or to conceal the alleged appropriation of his funds:Ebbert v. Plymouth Oil Co.,
Decree affirmed at appellant's costs. *222
