Parcham v. Schmelzer

• Court: Pennsylvania Commonwealth Court
• Writing for the Court: SMITH, P. J.
• Citation: Parcham v. Schmelzer, 21 Pa. D. & C. 303 (Pa. Commw. Ct. 1934)
• Decision Date: 04 May 1934
• Docket Number: 7420
• Parties: Parcham et ux. v. Schmelzer et al

21 Pa. D. & C. 303

Parcham et ux. v. Schmelzer et al

No. 7420

Common Pleas Court of Philadelphia County, Pennsylvania

May 4, 1934

December term, 1930.

Preliminary objections to bill in equity.

Louis Sherr, for plaintiffs.

James R. Wilson, for defendants.

OPINION

SMITH, P. J.

This matter comes before us on preliminary objections to an amended. bill of complaint.

The amended bill avers that on November 16, 1920, the petitioners (and Anna Knorpp, now deceased) purchased from George Schmelzer and Sophia, his wife, a property situate at 2323 South Sixty-third Street, in the City of Philadelphia, for $ 4,200, upon which amount they paid $ 3,200 in cash and the balance of $ 1,000 by a purchase-money mortgage dated November 16, 1920, and properly recorded; that the said deed of conveyance was also recorded and contains the following provision: " Unto the said grantees and the survivor of them and the heirs and assigns of such survivor" ; that Anna Knorpp died January 13, 1932, leaving her surviving the plaintiffs; that in December 1930 David Watson, defendant, acting as agent for the Schmelzers, proposed that the petitioners borrow $ 2,000 from the Schmelzers to repay the mortgage of $ 1,000, delinquent taxes, water rent, and interest accrued on said premises, and costs and bonus charges for placing the new mortgage of $ 2,000 on said premises, and petitioners agreed to such proposal; that during April 1921, to consummate the foregoing agreement, the said Watson, acting as agent for the Schmelzers, suggested that the Schmelzers should foreclose premises 2323 South Sixty-third Street for the purpose of clearing the title, that petitioners should refrain from bidding, and that after the sale the bid would be assigned to petitioners and a new mortgage of $ 2,000 placed by the Schmelzers in favor of the petitioners for 3 years, secured on the aforesaid premises, and that the $ 2,000 would be applied to the repayment of the mortgage loan of $ 1,000, payment of delinquent taxes and interest, and bonus charges and costs; that petitioners were persuaded to agree to Watson's proposal, as agent for the Schmelzers, placing reliance in his honesty and believing his representations were made in good faith; that the representations of Watson, as agent, were misrepresentations made for the purpose of defrauding petitioners of their property and in fact, as a result of agreeing to the said proposal, petitioners were fraudulently deprived of their interest, equity, and title in 2323 South Sixty-third Street, were defrauded of other sums of money, and otherwise injured; that pursuant to the suggestion of Watson, as agent for the Schmelzers, the Schmelzers entered judgment against the petitioners and on February 25, 1931, assessed damages in the sum of $ 1,066.50 as of this court, term, and number; that foreclosure proceedings were instituted and the said premises sold by the sheriff on May 4, 1931, and purchased by the attorney on the writ for $ 50, petitioners refraining from attending the sale and bidding on the premises pursuant to the aforesaid agreement; that on May 11, 1931, the Schmelzers took title to the said premises from the sheriff and still are the present owners of record of the said premises; that at the time of the sheriff's sale the said premises had a market value of $ 3,500 and that the present value thereof is $ 3,000; that after the sheriff's sale petitioners requested defendants by correspondence to carry out the terms of the said agreement, but defendants refused and still refuse to carry out said terms, whereupon, on March 1, 1933, plaintiffs filed a rule to open the judgment to which the Schmelzers made answer; that thereafter the said rule was withdrawn and the facts thereof included in the original bill of complaint filed; that at all the times mentioned the said Watson was acting as agent for the said Schmelzers and all his representations and agreements were made with the knowledge, authority, and/or ratification of the said Schmelzers; that defendants never intended to carry out said agreement but made the misrepresentations for the purpose of obtaining title to the said premises for their own benefit and use, thereby committing a breach of trust; that petitioners have no sufficient, adequate, and complete remedy at law and pray for relief as follows:

(a ) That the court grant an injunction, preliminarily until hearing and permanently thereafter, restraining the said Schmelzers from mortgaging, encumbering, and/or conveying any interest in the said premises to any person other than plaintiffs;

(b ) That the court decree that defendants acted as agents and trustees for plaintiffs and improperly purchased the said premises and are holding the same...