White v. Murray

• Decision Date: 29 December 1914
• Docket Number: 29.
• Citation: 218 F. 933
• Parties: WHITE v. MURRAY.
• Court: U.S. District Court — Western District of Pennsylvania

218 F. 933

WHITE v. MURRAY.

No. 29.

United States District Court, W.D. Pennsylvania.

December 29, 1914

John D Brown and John E. Winner, both of Pittsburgh, Pa., for plaintiff.

W. S Moorhead, of Pittsburgh, Pa., for defendant.

THOMSON District Judge.

This is a bill filed to recover from the receiver of the Ft. Pitt National Bank the purchase money paid by plaintiff on a sale to her of certain real estate by the receiver, the title to which she afterwards lost by dispossession in an action of ejectment.

Findings of Fact.

First. On August 10, 1901, the Ft. Pitt National Bank of Pittsburgh purchased a certain lot of ground situate in the Twelfth ward of the city of Pittsburgh, on which was erected a brick dwelling house, known as No. 531 Turrett street. The title to the property was taken in the name of Andrew W. Herron, who was then president of the bank. Afterwards, to wit, on January 31, 1902, Mr. Herron executed a declaration of trust in favor of the bank; but this instrument was not recorded until May 5, 1908.

Second. On December 6, 1907, the said Ft. Pitt National Bank was found and declared to be insolvent by the comptroller of the Currency of the United States, and Charles C. Murray was appointed and duly qualified as receiver of said bank.

Third. On March 26, 1908, prior to the recording of the declaration of trust, the Rochester Trust Company recovered a judgment against Andrew W. Herron in the sum of $5,103.28.

Fourth. On May 29, 1908, the said Andrew W. Herron and wife conveyed said property to the receiver of said bank, the deed being recorded on June 5, 1908.

Fifth. On October 7, 1909, Charles C. Murray, receiver entered into an article of agreement with Catherine White, the plaintiff herein, wherein the said receiver, for himself, his successors and assigns, did covenant, promise, grant, and agree to and with the said Catherine White, her heirs and assigns, that he, the said receiver, on or before December 1 1909, at the proper costs and charges of the said receiver his successors and assigns, would by deed of special warranty well and sufficiently grant, convey, and assure unto the said second party, her heirs and assigns, in fee simple, clear of all incumbrances, the land hereinbefore referred to, for the consideration of $4,200. Two hundred dollars hand money was paid by the purchaser on the execution of the agreement; it being therein provided that the same was to be refunded if the title to the property is not clear, or cannot be made clear, or in the event that the sale was not ratified and approved by a court of competent jurisdiction.

Sixth. The said Charles C. Murray, receiver, on the 15th of November, 1909, presented his petition to the Circuit Court of the United States for the Western District of Pennsylvania, at No. 30 May term, 1909, in equity, setting forth the terms and conditions of the said agreement of sale, and praying that the court approve and ratify the same, and thereupon the court made an order and decree as follows:

'The prayer of said petitioner is granted, and said Charles C. Murray, receiver of the Ft. Pitt National Bank of Pittsburgh, is hereby authorized and empowered to sell and convey by proper deed of conveyance in fee simple to Catherine White, her heirs and assigns, for the price or sum of $4,200, and upon the terms mentioned in the written agreement, a copy of which is attached to said petition and marked 'Exhibit A.' all that certain lot,' etc. (describing the property in question).

Seventh. In pursuance of said decree the said receiver, on the 16th of November, 1909, executed and delivered to the said Catherine White a deed for the said land. The deed recites the agreement of sale, the presentation of his petition to the court, that the sale was by the court ratified and approved at the price and upon the terms stated in said agreement, and the receiver authorized and empowered to execute and deliver a deed for said property. The deed contains the following clause by way of special warranty:

'And the said party of the first part hereby covenants, promises, and agrees to and with the said party of the second part, her heirs and assigns, by these presents, that he, the said party of the first part, has not done, committed, or knowingly or willfully suffered to be done or committed, any act, matter, or thing whatsoever, whereby the premises hereby granted, or any part thereof, is, are, shall, or may be impeached, charged, or incumbered in title, charge, estate, or otherwise.'

Eighth. After the plaintiff had received a deed for said property, and had paid the consideration in full, a writ of execution was issued upon the aforesaid judgment of the Rochester Trust Company against Andrew W. Herron, and the property of the plaintiff was levied upon and sold by the sheriff of Allegheny county to the plaintiff in the judgment.

Ninth. Subsequently the Rochester Trust Company, by virtue of the title acquired by it under said sheriff's sale, commenced an action of ejectment against the plaintiff in the court of common pleas No. 2 of Allegheny county for the recovery of said property, in which action a judgment was entered in favor of the trust company, which judgment was on appeal affirmed by the Supreme Court of Pennsylvania (Rochester Trust Co. v. White, 243 Pa. 469, 90 A. 127), by reason of which the plaintiff herein lost the property purchased by her as aforesaid.

Tenth. The plaintiff's father, Timothy Barrett, who is now dead, acting for the plaintiff, appears to have employed a Mr. Culbertson, an abstracter, to make some examination of the title; but it does not satisfactorily appear that any attorney was employed on behalf of the plaintiff to examine the title. John S. Wendt, Esq., an able and reputable lawyer, was attorney for the receiver in the transaction. He signed the agreement as attorney for the receiver, presented the petition for the confirmation of the sale, and so continued as attorney until the transaction was closed. While the title was under consideration, Mr. Culbertson spoke to Mr. Wendt about the judgment against Herron, and asked the latter if he thought it was a lien against the property. The latter says that he told Culbertson that he did not think the judgment was a lien; that the property had been purchased by the money of the bank and the title taken in the name of the president for convenience; that the president had executed a declaration of trust, which was recorded, and that the judgment only bound whatever interest Mr. Herron had in the property; that he (Mr. Wendt) had not examined the title, and was merely expressing his opinion as representing Mr. Murray, the receiver; and that he (Culbertson) would have to decide the question for himself. Mr. Culbertson died before this suit was brought.

Conclusions of Law.

First. The covenant in the contract of sale,...