Fidelity-Philadelphia Trust Co. v. Allen
| Decision Date | 28 November 1941 |
| Docket Number | 317 |
| Parties | Fidelity-Philadelphia Trust Company, Surviving Trustee, v. Allen et al., Liquidating Trustees, Appellants |
| Court | Pennsylvania Supreme Court |
Argued October 6, 1941.
Appeal, No. 317, Jan. T., 1941, from judgment of C.P. No. 7 Phila. Co., June T., 1941, No. 3852, in case of Fidelity-Philadelphia Trust Company, surviving trustee, v Thomas W. Allen et al., liquidating trustees. Judgment reversed.
Assumpsit on case stated.
The facts are as follows:
On September 30, 1895, Edwin L. Boger gave his bond in the sum of $6,000 secured by a mortgage on premises 2308 West Columbia Avenue, Philadelphia, of which property he was the owner. The debt represented by the bond has since been reduced by payments to $4,500. The bond and mortgage were assigned from time to time, the last assignment being to plaintiff herein, Fidelity-Philadelphia Trust Company Surviving Trustee under the Will of Augustus Thomas, Deceased. On July 19, 1928, title to the premises was conveyed to Legion Building & Loan Association, which on June 10, 1930, entered into a written agreement with plaintiff whereby the mortgage indebtedness was extended for a period of three years from March 30, 1930, and in return the Association guaranteed payment of principal and interest. Default having occurred, and the Association having conveyed the premises on December 28, 1934, to one Griffen, plaintiff brought foreclosure proceedings under which judgment was obtained and damages were assessed on December 10, 1935, in the sum of $4,872.03. No judgment in personam was obtained. The property was sold at sheriff's sale to plaintiff for $50; title was taken in the name of plaintiff on January 13, 1936; the $50 was absorbed by the costs of the sale, unpaid taxes and water rent. Plaintiff brought the present suit on August 8, 1941, to recover the sum of $4,500 and accumulated interest against the Liquidating Trustees of the Building and Loan Association, which, on March 12, 1936, had gone into voluntary liquidation. The suit was defended on the ground that plaintiff had not petitioned to have the fair market value of the premises fixed in accordance with the Deficiency Judgment Act of 1941.
Judgment was entered for plaintiff, opinion by FLOOD, J. Defendants appealed.
Judgment reversed; record remitted for further proceedings.
F. Raymond Heuges, for appellants.
Robert M. Green, with him Harold E. Kohn, Thomas P. Glassmoyer and Murdoch, Paxson, Kalish & Green, for appellee.
Boyd Lee Spaher filed a brief under Rule 61.
Cuthbert H. Latta, Jr., with him Philip A. Bregy, Walter C. Janney, Jr., and MacCoy, Brittain, Evans & Lewis, filed a brief under Rule 61.
John B. Nicklas, Jr., E. B. Wolfe, and McCrady, Nicklas & Hirschfield filed a brief for amici curiae.
Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN and PATTERSON, JJ.
A majority, Mr. Justice DREW dissenting, agrees that, as applied to this case, the challenged statute may be held not to conflict with the contract clause of the state constitution, reaching that conclusion on the ground that it is desirable to preserve uniformity of construction of the contract clauses of both state and federal constitutions: compare Gelfert v. National City Bank, 313 U.S. 221.
As the record does not involve the application of the Act to sales on judgments in personam made prior to its effective date, no opinion on that subject is expressed. See, however, McCabe v. Emerson, 18 Pa. 111; Ladner v. Siegel (No. 4), 298 Pa. 487, 498, 148 A. 699, 702; Memphis v. United States, 97 U.S. 293, 296; McCullough v. Virginia, 172 U.S. 102, 123, 124; Hodges v. Snyder, 261 U.S. 600, 603; 30 Am. Jur. 898, section 146; 31 Am. Jur. 364, section 883; 16 C.J.S. 689, section 271a.
Having written the opinion in the case of Beaver County Building and Loan Association v. Winowich, 323 Pa. 483, 187 A. 481, declaring the Mortgage Deficiency Judgment Act of 1934 unconstitutional, I think it fitting that I should give separate expression to my reasons for concurring in the present decision.
The Winowich case did not seek to justify the doctrine that a mortgage creditor who purchases at a foreclosure sale can recover from the mortgagor the excess of the amount of his bond over the sum realized at the sale regardless of the value of the property. What it held was that, since that doctrine admittedly was, and from the earliest times had been, the law of Pennsylvania, any subsequent legislative change whereby real estate at an appraised valuation was substituted in whole or in part for the money due under the mortgage loan, and whereby the amount recoverable from the mortgagor was greatly reduced, necessarily constituted a substantive impairment of the obligation of...
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