Irons v. Pittsburgh
| Decision Date | 18 July 1916 |
| Docket Number | 146-1916 |
| Citation | 64 Pa.Super. 126 |
| Parties | Irons v. Pittsburgh |
| Court | Pennsylvania Superior Court |
Argued May 1, 1916 [Syllabus Matter]
Appeal by Allemannia Fire Ins. Co. of Pittsburgh, from order of C.P Allegheny Co.-1914, No. 2151, discharging rule to mark judgment to use in case of James H. Irons and H. M. Irons Executors of and Trustees under will of Rachel D. Shannon, deceased, v. City of Pittsburgh.
Rule to mark judgment to use. Before Brown, J.
From the record it appeared that on January 4, 1916, The Allemannia Fire Insurance Company presented a petition, upon which a rule was granted on the executors and trustees under the will of Rachel D. Shannon (who died August 19, 1912), to show cause why a verdict entered October 20, 1915, in favor of plaintiffs, should not be marked to petitioner's use.
The insurance company was a holder of two mortgages aggregating $ 5,500 executed by Rachel D. Shannon -- one dated November 12, 1908, the other, December 2, 1909. By foreclosure proceedings upon the mortgages, at the suit of the company, the property was sold at sheriff's sale and purchased by it March 6, 1914, for $ 706.51. Thereafter it received a deed from the sheriff.
In the meantime -- between the dates of the mortgages in 1908 and 1909 and the sheriff's sale in March, 1914, the ordinance of the City of Pittsburgh of April 20, 1911, relating to change of grade of the street and alley (upon which the property fronted) was passed and contract for the work let. The work began June 6, 1911; and thereafter, on its completion, viewers were appointed at No. 417-1913, to assess the damages caused by the change of grade.
On November 21, 1913, the viewers filed their report. No damages were awarded the Shannon estate. From this report the executors and trustees took an appeal, and October 20, 1915, recovered a verdict for $ 750.
The court discharged the rule.
Error assigned was the order of the court.
Affirmed.
Charles Alvin Jones, with him Sterrett & Acheson, for appellant. -- The mortgage debt due the Allemannia Fire Insurance Company exceeding the damages assessed for the municipal injury to the mortgaged property, the pro tanto destruction of the property's security value should be treated as working ipso facto an equitable assignment to the mortgagee of the damages assessed in the name of the mortgagor: Patterson's App., 27 P.L.J. 73; Astor v. Miller, 2 Paige (N.Y.) 68; John Street, 19 Wendell (N.Y.) 659; Platt v. Bright, 31 N.J.Eq. 81.
The question of the mortgagee's equitable right to such damages is properly raised by the petition to have the verdict marked to the mortgagee's use: Patterson's App., 27 P.L.J. 73; In re Second Street, 1 Del. Co. 413.
Robert S. Martin, for appellees. -- No right would lie to recover damages, if any, before the change of grade on Lacock street and Arbuckle alley as affecting the said property until work was actually begun: Clark v. Philadelphia, 171 Pa. 30; Howley v. Pittsburgh, 204 Pa. 428; Devlin v. Philadelphia, 206 Pa. 518.
There were no irregularities in the foreclosure procedure, and appellant took what title the estate of Rachel D. Shannon, deceased, had in the property at that date, and took no more than that title: Kaufmann v. Pittsburgh, 248 Pa. 41; Jackson v. Pittsburgh, 36 Pa.Super. 274; Pulaski Ave., 33 Pa.Super. 108.
The transfer to the purchaser at sheriff's sale is made by the judgment and the sale thereon, not by virtue of the mortgage, and the judgment on the mortgage is merged in the title, and it is no longer open to attack: DeHaven v. Landell, 31 Pa. 120; Boyer v. Webber, 22 Pa.Super. 35; Cooley's App., 1 Grant 401; Sellers v. Montgomery, 2 Dist. 551; Brown v. Simpson, 2 Watts 233; Cummings v. Horter, 15 Pa.Super. 458; Baum v. Thompkin, 110 Pa. 569; Albright v. Lafayette B. & S. Assn., 102 Pa. 411.
If appellant ever had any right to intervene in the manner in which it now attempts to be made party to this proceeding, it was purely an equitable right, and that right would have to be asserted while it had standing in court, and its equitable claim under the law should have been presented in time: Reese v. Addams, 16 S. & R. 40; Road in Upper Dublin, 94 Pa. 126; Shields v. City of Pittsburgh, 252 Pa. 74; Knoll v. N.Y., Etc., Ry. Co., 121 Pa. 467.
Before Orlady, P. J., Henderson, Kephart, Trexler and Williams, JJ.
The City of Pittsburgh in 1911 changed the grade of certain streets along the property of the estate of Rachel D. Shannon and the viewers appointed to fix the damages in their report filed November, 1913, awarded none to the estate. On appeal, by agreement of the parties, a verdict of $ 750 in favor of the estate was rendered October, 1915. At the time of the change of grade the Allemannia Fire Insurance Company had two mortgages aggregating $ 5,500 on the premises of Rachel D. Shannon. Foreclosure proceedings were had and in March, 1914, several years after the actual change of grade was made and prior to the date when the verdict of $ 750 was rendered, the property was sold at sheriff's sale and bought in by the insurance company for $ 706.51.
On January 4, 1916, the insurance company presented its petition reciting the facts and asked for a rule on the representatives of Rachel D. Shannon to show cause why the verdict declared October 20, 1915, should not be marked to the use of the insurance company. The court refused the petition. Was this error?
As...
To continue reading
Request your trial