Kaylor v. Central Trust Company of Harrisburg
| Decision Date | 13 April 1944 |
| Citation | 36 A.2d 825,154 Pa.Super. 633 |
| Parties | Kaylor, Exrx., Appellant, v. Central Trust Company of Harrisburg |
| Court | Pennsylvania Superior Court |
Argued March 13, 1944
Appeal, No. 10, March T., 1944, from judgment of C. P Dauphin Co., March T., 1942, No. 139, in case of Violette G Kaylor, executrix of Estate of Harry Kaylor, deceased, v Central Trust Company of Harrisburg.
Assumpsit. Before Hargest, P. J.
Verdict for plaintiff. Judgment entered for defendant n.o.v. Plaintiff appealed.
Thomas D. Caldwell, of Caldwell, Fox & Stoner, for appellant.
F. Brewster Wickersham, of Metzger & Wickersham, for appellee.
OPINION
Harry Kaylor brought an action in assumpsit to recover the sum of $ 1,750 paid to the Central Trust Company of Harrisburg under circumstances appearing in the following narration of pertinent facts. Before statement of claim was filed Kaylor died and his executrix was substituted as plaintiff.
In 1919 Kaylor and his then wife, as owners of the Acri Hotel in Harrisburg, gave a mortgage and accompanying bond to Marino Acri in the sum of $ 20,000. This mortgage and bond after several assignments eventually came into the hands of the Central Trust Company. In 1927 the Kaylors conveyed the premises described in the mortgage to Constance and Lena Chiara, under and subject to the mortgage. On August 14, 1941, the trust company entered judgment on the bond, and filed a bill in equity to restrain further conveyance of all real estate owned by Kaylor.
On August 29, 1941, Kaylor gave his check to the trust company for $ 1,750, marked "Settlement in full of all personal liability on bond and mortgage on Chiara Property, Known as Bridge Hotel, 29 S. 4th Hbg., Pa." On the same day Kaylor was given a receipt and release providing that in consideration of the payment of $ 1,750 the lien of the judgment obtained was "released and discharged from . . . all real estate of Harry Kaylor and Violet Kaylor, his [second] wife, as well as any and all real estate in which they or either of them have an interest, it being expressly hereby agreed that this judgment shall be restricted to the Acri Hotel, now known as the Bridge on South Fourth Street in Harrisburg, Pennsylvania as more fully described in the mortgage securing the bond on which this judgment was entered, the intention being that this judgment may be used for the purpose of selling the aforesaid Acri Hotel, now known as the Bridge, only, Harry Kaylor being relieved of personal liability." Simultaneously the equity suit against Kaylor was discontinued.
On March 2, 1942, the Chiaras paid the trust company $ 14,550, the total balance due on the mortgage, so that the bank finally received payment in full of principal and interest and in addition the sum of $ 1,750 paid by Kaylor. Plaintiff in her statement of claim alleges Kaylor was entitled to recover this sum of $ 1,750 as this payment was made "under duress" without alleging any accompanying facts upon which she based the charge: Brunner v. Brunner, 104 Pa.Super. 539, 158 A. 615. The defendant in paragraph 22 of its affidavit of defense states that it received the $ 1,750 It denied in paragraph 23 that the payment was made under duress, but that to the contrary it was made voluntarily at Kaylor's personal suggestion.
The case was submitted to a jury which returned a verdict of $ 1,750 with interest and costs namely $ 1,826.44. It is apparent that the learned court below would have permitted a recovery if consistent with well settled rules of law, but concluded that could not be done and "reluctantly" entered judgment n. o. v. for defendant. While certain equities may exist in plaintiff's favor she has not proven any legal cause of action or equitable ground entitling her to relief. The judgment must, therefore be affirmed.
We are not vitally concerned here with the usual legal relationship arising between mortgagor and mortgagee, and one to whom the mortgaged property has been conveyed under and subject to the mortgage, although that matter was given considerable consideration by both parties to this appeal. We may state in passing that our decisions uniformly hold that a bond and mortgage taken for the same debt are distinct securities, possessing dissimilar attributes subject to different remedies,...
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