Real Estate-Land Title & Trust Co. v. Bankers Trust Co. of Philadelphia
| Decision Date | 16 June 1931 |
| Docket Number | 920 |
| Parties | Real Estate-Land Title and Trust Company v. Bankers Trust Company of Philadelphia et al |
| Court | Pennsylvania Commonwealth Court |
May T., 1930.
Sheriff's interpleader to determine title to chattels.
Saul, Ewing, Remick & Saul, for plaintiff in interpleader.
Sundheim, Folz & Sundheim, for defendants in interpleader.
This is a feigned issue under the Sheriff's Interpleader Act to determine the title to furniture and other articles of personal property seized under and by virtue of a writ of fieri facias and found in the possession of the Fairfield Apartments Corporation, southeast corner of Fifty-third Street and Wynnefield Avenue, in the City of Philadelphia. The parties to the issue are the Real Estate-Land Title and Trust Company, claimant, and the Bankers Trust Company of Philadelphia, execution creditor of the Fairfield Apartments Corporation. The case was tried by a judge without a jury, who made a finding for the plaintiff in execution (defendant in interpleader) in the sum of $ 2279.83, the amount agreed upon in the event of a finding for the plaintiff in execution. We have before us motions for a new trial and for judgment for the claimant non obstante veredicto.
The following testimony was produced at the trial: One S. Louis Baron, being the registered owner of premises known as the Fairfield Apartments, an apartment house located at Fifty-third Street and Wynnefield Avenue, in the City of Philadelphia, on June 15, 1926, executed and delivered his mortgage on the said premises in the sum of $ 200,000 to the Land Title and Trust Company (which later by merger became the Real Estate-Land Title and Trust Company), the claimant in this case, which said mortgage contained the following provision: " Together with all machinery, including engines, boilers, dynamos, elevators, refrigerators, incinerators, steam and electric fixtures and appliances and all fixtures and other property generally now or which may hereafter be placed in or about said premises and appurtenant thereto, or used in connection therewith for the operation of the building as an apartment house." On the same day Baron conveyed the premises aforesaid to one Jules S. Elkish. On November 6, 1927, the said Jules S. Elkish conveyed the said premises to the Fairfield Apartments Corporation, subject to the aforesaid mortgage.
On January 24, 1928, the Fairfield Apartments Corporation borrowed the sum of $ 3000 from the Bankers Trust Company of Philadelphia, the plaintiff in execution (defendant in interpleader), and as security for the loan executed and delivered to it certain promissory notes. The said indebtedness was reduced by payments to $ 2025.94, which, together with interest at the time of entry of judgment, amounted to $ 2199.24.
On March 20, 1930, the Real Estate-Land Title and Trust Company gave fifteen days' written notice to the Fairfield Apartments Corporation and to the mortgagor, S. Louis Baron, that if default payment of the principal, which was due on June 15, 1929, and in the payment of the interest, which was due December 15, 1929, was not remedied, it, as trustee, would take possession of the mortgaged property. On or about April 10, 1930, it appointed William H. W. Quick and Brother, Inc., as its rental agent, who, on April 12, 1930, placed a sign on the premises which read: On April 11, 1930, one Graves, acting for the said William H. W. Quick and Brother, Inc., wrote letters to the tenants of the Fairfield Apartments advising them that Quick and Brother were acting as agent for the Real Estate-Land Title and Trust Company. He also informed the janitor that Quick and Brother were taking possession of the building for the holder of the first mortgage and would manage the building.
On May 23, 1930, the Bankers Trust Company of Philadelphia instituted suit on the notes above referred to, and on June 13, 1930, obtained judgment, and on the same day the furniture and other personal property on the premises aforesaid were levied upon. The Real Estate-Land Title and Trust Company then made claim to the same, and the issue was accordingly raised and framed.
There was no reference on the " For Rent" sign as to change of ownership, or as to a new owner; nor were there any other signs or placards put up to indicate a change of ownership. There was no publication or advertisement of the change of ownership, nor were notices to that effect sent to creditors. The name " Fairfield Apartments" above the front entrance to the premises was left unchanged. Jules S. Elkish, who was treasurer of the Fairfield Apartments Corporation, was permitted to remain on the premises as an agent of the claimant for the purpose of renting out the apartments.
Counsel for the defendant, in his paper book sur defendant's motions for a new trial and for judgment for the defendant non obstante veredicto, proceeds' upon the theory that the furniture and other property levied upon, and to which his client makes claim, passed to it under that provision in the mortgage to which reference has already been made, and that, therefore, the only question involved is whether there was a delivery of possession of the said personal property prior to the levy, and if there was, that the finding should have been in favor of the claimant. The plaintiff in execution (defendant in interpleader) contends to the contrary.
In view of the finding for the plaintiff in execution (defendant in interpleader), all the evidence and proper inferences therefrom favorable to the plaintiff in execution (defendant in interpleader) must, under the familiar rule, be taken as true, and all unfavorable to him rejected: Hunter v. Pope, 289 Pa. 560, 562; Caldwell v. Continental Trust Co., 291 Pa. 35; Frank v. Reading Co., 297 Pa. 333; Snyder v. Penn Liberty Refining Co., 302 Pa. 320.
Viewed from this standpoint, the trial judge, who was the trier of the facts, could reasonably have found: (1) That the furniture and personal property levied upon were not within the class of articles enumerated in the clause of the mortgage heretofore referred to; (2) that if such articles were included, the pledgee failed to take possession of them at the time of the creation of the pledge; and (3) that the acts of the pledgee looking towards possession were not sufficiently open, notorious and exclusive.
A careful consideration of all the evidence convinces us that the trial judge properly found for the plaintiff in execution in the amount agreed upon. In determining the first question, it is necessary to consider carefully the phraseology of the clause in question in the mortgage, reading as follows: " Together with all machinery, including engines, boilers, dynamos, elevators, refrigerators, incinerators, steam and electric fixtures and appliances and all fixtures and other property generally now or which may hereafter be placed in or about said premises and appurtenant thereto, or used in connection therewith for the operation of the building as an apartment house," and apply the rules of law thereto applicable.
It is a familiar rule of construction -- the rule of ejusdem generis -- that general words following particular or specific terms are restricted in meaning to those things or matters which are of the same kind as those first mentioned: 13 C. J. 537; Renick v. Boyd, 99 Pa. 555; Burns v. Coyne, 294 Pa. 512; 6 R. C. L. 843; 3 R. C. L. Perm. Supp., p. 1835; Gohlke v. Hawkeye Commercial Men's Ass'n, 198 Iowa 144, 197 N.W. 1004, 35 A. L. R. 1177. In Burns v. Coyne, supra , Mr. Justice Walling says (page 516):
In the instant case, the words " and other property generally" can only refer to that class of things of the same generic character which precede it; to wit, " machinery, including engines, boilers, dynamos, elevators, refrigerators, incinerators, steam and electric fixtures and appliances and all fixtures." By no stretch of the imagination can we possibly say that articles of furniture and the other articles of personal property that had been levied upon, as appears in the sheriff's appraisement, belong to that generic class of articles hereinabove enumerated. If the personal property levied upon had been either machinery or fixtures, the case would be otherwise. The plain and obvious meaning and intent of the clause in question is that it referred to what preceded it and the things which were specifically mentioned.
If however, the claimant's contention be upheld -- that is to say, that the furniture and other personal property levied upon were covered by the clause in question hereinabove referred to -- the finding of the...
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