Kilpatrick v. Home Bldg. & Loan Ass'n

• Decision Date: 20 February 1888
• Docket Number: 427
• Citation: 119 Pa. 30,12 A. 754
• Parties: ROBERT KILPATRICK v. HOME B. & L. ASSOCIATION
• Court: Pennsylvania Supreme Court

12 A. 754

119 Pa. 30

ROBERT KILPATRICK v. HOME B. & L. ASSOCIATION

No. 427

Supreme Court of Pennsylvania

February 20, 1888

Argued February 9, 1888

ERROR TO THE COURT OF COMMON PLEAS OF DELAWARE COUNTY.

No. 427 January Term 1887, Sup. Ct.; court below, No. 10 March Term 1887, C.P.

On December 10, 1886, a scire facias sur mortgage issued in favor of The Home Building and Loan Association against Oliver Troth, mortgagor, and Robert Kilpatrick, terre tenant. An affidavit of defence was filed by Kilpatrick setting out in substance, his ownership of one of two adjoining properties upon which Troth had executed the mortgage in suit, and that at the time of his purchase from Troth, he and one George Beeby, his conveyancer, went with Troth to the office of the plaintiff association to have the mortgage released from the property purchased; that the amount to be paid was stated by Patrick Bradley, the secretary of the association, who directed that the amount, which was then in the hands of Beeby, be paid over to Mr. Ward R. Bliss, the association's solicitor. The next day, Beeby passed his check to Mr. Bliss for the amount. The check was not presented for payment for about three months, at which time Beeby's account with the bank was worthless, although for two months after the check was drawn it would have been paid on presentation. A supplemental affidavit set forth that at the time of receiving the check, Mr. Bliss was duly authorized by a letter of attorney recorded in the recorder's office, to enter satisfaction, on the record of all mortgages and all judgments standing in the name or to the use of the association. All the averments of the affidavits of defence appear in the opinion of this court.

On a rule for judgment for want of a sufficient affidavit of defence, on March 8, 1887, the court, CLAYTON, P.J., filed the following opinion and order.

The affidavit of defence is insufficient in several particulars. The substance of the defence is that Troth, the mortgagor when he sold the mortgaged premises to the terre tenant undertook to have the plaintiff's mortgage "released;" that to that end, at the time of the delivery of the deed, Troth and one George Beeby, the agent of the terre tenant, called upon the secretary of the association, who then furnished a statement of the sum required to release the property, and "then and there stated the sum to be $1,380.20."

This part of the affidavit is clearly evasive. It may refer to a statement in writing of the amount due, and also to a verbal statement of a less sum. The affidavit says "Mr. Bradley furnished a statement of the amount required;" it does not tell us what that amount was. It merely says that he "then and there stated" that $1,380.20 was the amount required. The deponent then directed Beeby to pay the money, but the secretary directed him to the solicitor, Mr. Bliss. Beeby, on June 6, 1885, gave Bliss his check for the said sum of $1,380.20.

Here again the affidavit is evasive. It does not state that Mr. Bradley had authority to adjust or fix the sum due on the mortgage, or that he had authority to take less than the whole amount secured by the mortgage. The affidavit shows that the mortgage covered two properties, and that the terre tenant was not seeking to have the mortgage satisfied, but to have one half the mortgaged premises released. To do this, it was necessary to agree upon the amount to be paid. The association had the clear right to demand payment of its whole debt before it could be required to release any part of its security. The affidavit, to be good as a defence, must show that the association, or some person duly authorized by it, agreed to the amount to be paid, and that the money, in pursuance of that agreement, was actually paid to the association, or some one authorized by it to receive it.

The defence further states that the terre tenant had, before the interview with Bradley, placed in the hands of said Beeby the sum of $1,500, and that said Bliss was negligent in not presenting the check until September, when there was no money there to pay it; thus attempting to shift the consequences of his vain trust of his own agent upon Mr. Bliss. If, for any supine negligence of Mr. Bliss, the agent of the terre tenant has been enabled to cheat him, he must look to Mr. Bliss for redress, and not throw his loss upon the association, who had nothing to do in the matter, and whose only fault has been a wise refusal to release any part of its mortgage until the amount to be paid was settled and the cash in its treasury. These defects were pointed out upon the argument, and the terre tenant was given ten days to supply them by a supplemental affidavit.

A supplemental affidavit has been filed, but it does not help the deponent's case. It does not allege any authority in the secretary to adjust the amount to be paid for the release, but by an argument assumes that Mr. Bliss had authority to receive the money and satisfy the mortgage. This authority is inferred from a recorded letter of attorney, authorizing Mr. Bliss to satisfy all mortgages held by the association. Everybody familiar with the working of building associations knows what such a letter of attorney means. It is an authority to the solicitor to satisfy all paid mortgages; not an authority to adjust the amount due, or to receive payment before that sum due is adjusted. When the association has received payment, and the money is in the hands of its treasurer, an order is issued to the solicitor to satisfy the mortgage, which the recorder permits him to do by virtue of the letter of attorney. It cannot for a moment be construed into an authority to fix the proportion that any one piece of the mortgaged property shall be required to pay to induce the association to execute and file a release. The learned counsel for the terre tenant will hardly contend that under the letter of attorney mentioned in his supplemental affidavit Mr. Bliss could have executed a valid release of the part of the mortgaged land purchased by the terre tenant.

The rule for judgment is made absolute.

Judgment having been entered in favor of the plaintiff for the sum of $1,943.55, the terre tenant defendant took this writ, assigning the order of the court as error.

Judgment reversed, and a procedendo awarded.

Mr. W. B. Broomall, for the plaintiff in error:

While it may be that the association was not bound to receive payment of part of its debt, yet having assumed to do so through the officer empowered to receive payment of the whole, it cannot now repudiate because only a...