Evans v. Provident Trust Co.

• Decision Date: 29 June 1935
• Docket Number: 202
• Parties: Evans, Appellant, v. Provident Trust Company
• Court: Pennsylvania Supreme Court

179 A. 452

319 Pa. 50

Evans, Appellant, v. Provident Trust Company

No. 202

Supreme Court of Pennsylvania

June 29, 1935

Argued April 23, 1935

Appeal, No. 202, Jan. T., 1935, by plaintiff, from decree of C.P. No. 1, Phila. Co., June T., 1934, No. 8034, in case of Rowland C. Evans v. Provident Trust Company of Philadelphia trustee. Decree affirmed.

Bill in equity.

The opinion of the Supreme Court states the facts.

Preliminary objections to bill sustained and bill dismissed, opinion by KUN, J. Plaintiff appealed.

Error assigned, among others, was action of court sustaining preliminary objections.

The decree is affirmed at appellant's costs.

Nathaniel Shapiro, for appellant.

J. B Colahan, of Townsend, Elliott & Munson, for appellee, was not heard.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. CHIEF JUSTICE FRAZER:

The question presented for our determination in this appeal is whether the terms of the Act of January 17, 1934, P.L. 243 (the Deficiency Judgment Act), preclude a mortgagee, upon default, from realizing upon additional collateral pledged for the obligation, before foreclosing on the mortgage and establishing a deficiency judgment. The answer is clearly in the negative.

Plaintiff filed an amended bill in the court below for an injunction restraining the sale of additional collateral pledged with the mortgage, and took the present appeal from a decree sustaining preliminary objections and dismissing the bill. The facts surrounding the transaction were as follows: In connection with his purchase of the premises at Nos. 103-105 South 11th Street, Philadelphia, plaintiff, on July 14, 1925, executed a bond and mortgage in the amount of $100,000 to defendant as trustee. At the same time, he assigned to defendant, as additional collateral security for the obligation, a first mortgage in the sum of $22,000, covering premises 2017 Arch Street, Philadelphia. In 1930 the principal of the mortgage on the Arch Street property was paid, defendant investing the major part of the proceeds in Delaware County bonds and retaining the balance in cash. Defendant continued to hold both the bonds and the cash as additional security for the mortgage on the 11th Street property, which in January, 1926, was sold by appellant to Henry S. Belber, subject to the mortgage of $100,000. Belber's default in payments due defendant was the occasion of the latter's notice to appellant that it would proceed to sell the bonds at private sale.

Appellant alleges the present market value of the 11th Street property is in excess of the amount of the mortgage and contends that if the property were sold at sheriff's sale there would be no deficiency judgment and he could obtain the return of the additional collateral. It is argued that "the action of the defendant in refusing to foreclose on the property first and to proceed against the collateral for any deficiency, was in...