O'Donnell v. Neely

66 Pa. Super. 351 | Pa. Super. Ct. | 1917

-Opinion by

Williams, J.,

The statement of claim avers, inter alia, that on January 4,1912, the plaintiff, the owner of premises No. 2312 Tioga street, Philadelphia, executed his bond to a building association for the payment of $1,500, and, as collateral security therefor, executed a mortgage secured upon the premises; that in 1913 the defendant agreed to purchase the property under and subject to said mortgage, and by deed dated October 31, 1913, plaintiff conveyed the premises to one Pennington “under and subject” to the payment of a mortgage of $3,500, and a second mortgage of $1,500 above recited; that Pennington, by deed dated October 31, 1913, conveyed the premises to defendant; he having defaulted in his payments to the association and in the payment of taxes assessed against the said premises for the years 1914, 1915, 1916, the association foreclosed the $1,500 mortgage and entered judgment for $1,423.40, which with interest amounted to $1,440.01, and under the proceedings said premises were sold by the sheriff on April 3,1916, and purchased by the mortgagee for $1,300, thus divesting defendant’s title; that in the distribution of the $1,300, raised by the sale, there was deducted for costs, $94.47; for taxes, $279.33; for water rent, $34.40, amounting to $408.20, and a balance due by plaintiff on judgment of $140.01, making a total of $548.21; that on April 20, 1916, the association entered judgment on the bond of the plaintiff, which judgment became a lien on his real estate, and, in order to relieve it, he was compelled to pay $554.49 in satisfaction of said judgment, for which this suit was brought. The statement further averred that “plaintiff is informed and believes and expects to be able to prove at the trial of the cause, that the said I. Clarence Pennington had no financial interest in said conveyance, but that said-conveyance was made to him as a ‘straw man’ and in trust to be immediately conveyed to the said Robert Neely.”

September 21,1916, the defendant moved for judgment for want of a sufficient statement of claim. September 23,1916, the plaintiff moved for judgment for want of an answer. The court discharged defendant’s rule and made absolute that of the plaintiff. Prom this action we have the present appeal.

A rule of the Municipal Court, as appears from appellee’s paper book, provides that rules for judgment for want of a sufficient statement must be filed within five days after service thereof, and, as the docket entries show that defendant’s motion Avas not made until fifteen days after service, the first assignment of error is overruled.

The second assignment avers error in the entry of judgment for want of an answer. None was filed. Nevertheless, the statement of claim must be sufficient to support the judgment or it must fall. A statement must be self-sustaining; it must set forth in clear, concise terms, a good cause of action; such averments of fact as, if not controverted, would entitle him to a verdict for the amount that is claimed: Chestnut St. Nat. Bank. v. Ellis, 161 Pa. 241.

The plaintiff is seeking to recover for three separate items. 1. Water rent for the years 1915 and 1916— 134.40. 2. Taxes for 1914, 1915, and 1916 — $279.33.

3. The balance on the judgment obtained by the mortgagee against O’Donnell not produced by the property sold with costs of suit and sale.

The averment that plaintiff believes that Pennington was a “straw man” is not such an averment of fact as, if not controverted, would entitle him without further proof to a judgment. Even if properly averred, and admitting that Pennington was a “straw man,” the inference is not clear that the implied covenant, resulting from the use of the words “under and subject,” arises. Clearly the intention of the parties was that it should not arise. In Aronson v. Heymann, 56 Pa. Superior Ct. 501, the same course of procedure was pursued and this court said, Porter, J. (506) : “The words in the agreement (straw bond) meant that this defendant should not be required to assume a direct liability to Carrie Gansman for the payment of the amount of the bond, nor should he be required to furnish a bond made by a party who was financially satisfactory to her.” In either event, the plaintiff’s statement is not sufficient to warrant judgment for any liability arising from the use of the words “under and subject.”

Independently of such liability there can be no recovery for the water rent, as there was no personal liability therefor: Theobold v. Sylvester, 27 Pa. Superior Ct. 362, but the registered owner of a property is liable for taxes assessed thereon during his ownership. There is, therefore, a liability resting upon the defendant for this item. It will be noted, however, that this suit is not by the mortgagee in the foreclosure suit, but by the mortgagor. If the association had been the plaintiff, undoubtedly the judgment for taxes would be sustained: Landreth v. McCaffrey (No. 1), 17 Pa. Superior Ct. 272; Edwin Forrest Home v. Shattuck, 64 Pa. Superior Ct. 239; Hogg v. Longstreth, 97 Pa. 255. To relieve Ms bond, tbe mortgagor was compelled to pay tbe taxes to tbe mortgagee. He is, therefore, subrogated to tbe rights of tbe mortgagee-. In Or. Council of Pa. Royal Arcanum v. Cornelius, 198 Pa. 46, Fell, J., said (50) : “......one who has been compelled to pay a débt which ought to have been paid by another is entitled to exercise all-the remedies which the creditor possessed against that other

The statement of claim sufficiently avers that the plaintiff was compelled to pay a debt for which the defendant was primarily liable. The right of subrogation is, therefore, complete. To this extent, the judgment should be sustained.

The record is remitted to the court below with direction to modify the judgment in accordance with this opinion.