Housing Mortg. Corp. v. Allied Const. Co., Inc.

Decision Date23 May 1951
Citation80 A.2d 748,367 Pa. 351
PartiesHOUSING MORTGAGE CORP. v. ALLIED CONST. CO., Inc. Appeal of CLARK. Appeal of HOUSING MORTGAGE CORP.
CourtPennsylvania Supreme Court

Proceeding between the Housing Mortgage Corporation and the Allied Construction Company, Inc., involving distribution of proceeds of sale of real estate in connection with mortgage foreclosure, wherein James B. Clark filed exceptions to the sheriff's proposed distribution. The Court appointed Frank E. Reed, Esquire, as auditor. The auditor filed a report recommending that Clark's exceptions be dismissed. The Court of Common Pleas of Beaver County, Morgan H. Sohn J., at fi. fa. No. 56 June Term, 1948, Sur. 393 June Term 1948, D.S.B., entered an adverse order and James B. Clark No 63, and the Housing Mortgage Corporation, No. 65, appealed. The Supreme Court, Nos. 63 and 65, March Term, 1951, Per Curiam, held that under the circumstances the record would be remanded to the court below with instructions to reopen proceedings and refer matter back to auditor for further findings.

Appeal No. 63 remanded. Appeal No. 65 dismissed without prejudice.

James E. Hindman, Pittsburgh, Ralph E. Smith, Myron E. Rowley and Rowley & Smith, all of Aliquippa, for James B. Clark.

W. Denning Stewart, Ira Hurwick, Pittsburgh, Harold L. Roth, Ambridge, for Housing Mortgage Corp.

Before DREW, C. J. and STERN, JONES, BELL, LADNER and CHIDSEY, JJ.

PER CURIAM.

This appeal involves two questions: The first is whether an agreement governing the advances to be made by the advance money mortgagee and incorporated in the advance money mortgage by reference is also incorporated in the subordinated purchase money mortgage by the reference therein to the advance money mortgage to which it was subordinated.

The second question is whether in fact the advance money mortgagee substantially complied with the schedule. Counsel for that mortgagee earnestly argued that there were no excessive or over advances actually made.

The first question is an exceedingly nice one but, though interesting, it would not be decisive unless the second question were decided in the appellants' favor. If in fact there were no excessive advances made and the schedule was substantially complied with that would be the end of the case irrespective of our finding on the first question. We cannot, however, pass on this second question because neither the auditor nor the learned court below...

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