Grambo v. South Side Bank & Trust Co.

Decision Date19 July 1940
Docket Number40-1940
Citation14 A.2d 925,141 Pa.Super. 176
PartiesGrambo et al. v. South Side Bank and Trust Co., Appellant
CourtPennsylvania Superior Court

Argued March 6, 1940.

Appeal from judgment of C. P. Lackawanna Co., May T., 1938, No. 663 in case of Elizabeth Grambo et al., executrices, v. South Side Bank and Trust Co.

Proceeding for declaratory judgment. Before Hoban, J., without a jury.

The facts are stated in the opinion of the Superior Court.

Judgment entered for plaintiffs. Defendant appealed.

Error assigned, among others, was judgment.

Judgment affirmed.

T. A Donahoe, with him Leo G. Knoll, and Carl Carey, for appellant.

Walter L. Hill, Jr., of O'Malley, Hill, Harris & Harris, with him Willard M. Henkelman, for appellees.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Parker, J.

This is a proceeding for a declaratory judgment brought by the owners of a mortgage on real estate to determine rights of priority between that mortgage and another mortgage on the same premises held by defendant. Appellant first raises a question as to the applicability to the situation presented of the remedy under the Uniform Declaratory Judgments Act (Act June 18, 1923, P. L. 840, as amended by Act May 22, 1935, P. L. 228; 12 PS § 831, et seq.). The court below thought that the act was appropriate and disposed of the question of priority in favor of plaintiffs. Defendant, the appellant, also contends that even if the court did have jurisdiction in this form, it reached an incorrect conclusion. The case was tried without a jury and there are no disputed facts.

On June 30, 1925, William Grambo, being then the owner of the real estate involved, together with his wife, conveyed it to Catherine Cunion. On July 12, 1925, Catherine Cunion executed, delivered, and recorded a mortgage to Peoples Mortgage Company in the sum of $ 4,500, and on July 17, 1925, she gave a mortgage for $ 700 on the same premises to William Grambo and Anna Grambo, his wife, as tenants by entireties. Each of the mortgages is admitted to be a purchase money mortgage, but the Grambo mortgage provided as follows: "This mortgage shall operate as a second purchase money mortgage to that of the Peoples Mortgage Company, Inc., for forty-five hundred ($ 4500) dollars." On July 11, 1927, Catherine Cunion gave to the Dollar State Bank & Trust Company, a mortgage for $ 3,600, and there was paid from the proceeds of that mortgage to the Peoples Mortgage Company on the same date $ 3,479.85, the balance then due on the Peoples mortgage, and the Peoples mortgage was satisfied of record. On the same date, William Grambo executed and delivered an instrument in writing purporting to postpone the lien of his mortgage to the mortgage given to Dollar State Bank & Trust Company. The parties evidently overlooked the fact that Grambo and his wife were tenants by entireties for she either neglected or refused to join in the postponement. William Grambo died in 1930, so that the mortgage held by his wife and him vested in her as the survivor. Anna Grambo died in 1934 and the plaintiffs are her executrices. The defendant succeeded by assignment to the rights of the Dollar bank in the $ 3,600 mortgage. The defendant took a deed from Mrs. Cunion for the real estate, but it is conceded that the mortgage did not merge with the fee. The owner of the $ 700 mortgage and the owner of the $ 3,600 mortgage are each claiming priority as a first mortgage.

We are all of the opinion that the remedy was a proper one. It is true that the plaintiffs had a remedy, frequently employed, by foreclosing their mortgage. That remedy, however, under the circumstances would be expensive and slow and is further complicated by the fact that the defendant's mortgage has not merged in the fee now held by the defendant. If the plaintiffs were purchasers on their foreclosure they would not have a marketable title while the controversy remained unsettled and the closing of the estate might be long delayed. Even if a sale was made on either mortgage, complications would arise with relation to bidding and the executrices would be particularly embarrassed. It seems to us that it is a typical case for a declaratory judgment. We are supported in that view by Conemaugh Iron Wks. Co. v. Delano Coal Co., 298 Pa. 182, 148 A. 94. In that case there was a dispute as to the lien of a judgment and the relation of that lien to the lien of a mortgage. There was involved a question as to whether the land had been conveyed in fraud of the right of creditors. The Supreme Court there said (p. 188): "We think that, if there is a fear of this mortgage being discharged by the proposed sheriff's sale, the status of the mortgage and the rights of the mortgagee can be determined in proceedings under the Declaratory Judgment Act, with all parties in interest on the record." All parties in interest are here upon the record.

Any other remedy available in law or equity would not be equally effective, serviceable, or expeditious: Orndoff v. Consumers Fuel Co., 308 Pa. 165, 170, 162 A. 431. The act was not intended for, and should not be invoked in cases where the judgment sought can be had as expeditiously in the ordinary course of legal procedure as it can under the statute: Nesbitt v. Mfrs'. Casualty Ins. Co., 310 Pa. 374, 380, 165 A. 403. "The purpose of passing the Uniform Declaratory Judgment Act, supra, was that 'issues could be speedily determined, which otherwise would be delayed, to the possible injury of those interested if they were compelled to wait the ordinary course of judicial proceedings'": Appeal of L. L. Kimmell, 96 Pa.Super. 488, 490, approved in the Nesbitt case, supra.

On the merits of the controversy we find nothing to support the position taken by appellant, and on the contrary there are a number of decisions holding otherwise. In short, appellant says that it is entitled by virtue of its $ 3,600 mortgage to be subrogated to the lien of the $ 4,500 mortgage, although the latter has been satisfied, because it, by mistake, relied upon a postponement executed by only one of two tenants by entireties, owners of the $ 700 mortgage, and used...

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15 cases
  • In re Johnson's Estate
    • United States
    • Pennsylvania Supreme Court
    • May 2, 1961
    ... ... December 19, 1950. By her will she created a trust of her ... residuary estate with the First National Bank ... [ 10 ] Grambo v. Southside Bank & Trust Co., ... 141 Pa.Super. 176, 14 ... ...
  • Johnson's Estate, In re
    • United States
    • Pennsylvania Supreme Court
    • May 2, 1961
    ...488, we reiterated that declaratory judgment would not lie where a statutory remedy has been provided for.10 Grambo v. Southside Bank & Trust Co., 141 Pa.Super. 176, 14 A.2d 925; Day v. Ostergard, 146 Pa.Super. 27, 21 A.2d 586.11 See also: Gerety's Estate, 349 Pa. 417, 37 A.2d 792; Keefer's......
  • Moore v. Moore
    • United States
    • Pennsylvania Supreme Court
    • January 29, 1942
    ... ... The Superior ... Court in Grambo v. Southside Bank & Trust Co., 141 ... Pa.Super. 176, 14 ... adverse legal ... [25 A.2d 134] ... interests. South Spring Gold Co. v. Amador Gold Co., ... 145 U.S. 300, ... South ... Side Bank and Trust Co., 141 Pa.Super. 176, and Day ... v ... ...
  • IN RE KESSLER
    • United States
    • U.S. Bankruptcy Court — Middle District of Pennsylvania
    • June 22, 2010
    ...court "must provide a venue in accordance with the rules governing sheriff's sales."); See, generally, Grambo v. South Side Bank & Trust Co., 141 Pa.Super. 176, 14 A.2d 925 (1940) (finding that the lien priority dispute was properly adjudicated under the Uniform Declaratory Judgment Act). I......
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