Cedar Avenue Building & Loan Ass'n v. McLaughlin

69 Pa. Super. 73, 1918 Pa. Super. LEXIS 14

• Court: Superior Court of Pennsylvania
• Decided: March 2, 1918
• Docket: Appeal, No. 189
• Status: Published

Opinion

Opinion by

Trexler, J.,

Tbe plaintiff bad a second mortgage of $1,000 upon certain premises in Philadelphia owned by Randal. The property was sold at sheriff’s sale and passed to tbe Italian Cooperative Banking Association as whose property it was sold on a levari facias issued on the first mortgage. Between tbe issuing of tbe levari and tbe sale tbe defendant went upon tbe premises and removed therefrom tbe bath tubs, wash stands, water closets and all the piping and radiators constituting a hot water heating plant. He showed no authority from any one to enter upon the premises or to remove these articles. He was a mere trespasser entering without any right; at least he did not attempt at the trial to show any. The holder of the second mortgage has brought this action to recover his loss by reason of the injury to the property. He has a standing to maintain this action. “The property was mortgaged or pawned to the plaintiff, and an injury to the thing pawned is a wrong done to the pawnee, if thereby he loses his claim to any part of it” : Roberts v. The Dauphin Deposit Bank 19 Pa. 71 (77). Conceding this the defendant replies that the articles taken, form no part of the reality and their taking hurt the defendant nothing. We are not disposed to draw fine distinctions in order to relieve the defendant from paying the damage he has done. The owner of the property against which the levari was issued acquired the property with the heating apparatus in it. It does not appear that any one else claims that the property which is the subject of this suit is personal property. As to the defendant who is a mere stranger it is safe to invoke the old rule that when something is attached to real estate other than by its own weight it is prima facie part of the real estate. Considering the fact that the defendant was a trespasser and that it appears that these fixtures were in the house prior to the time the Italian Cooperative Banking Association obtained title and that they presumably obtained these fixtures as part of the real estate, the court was right in its conclusion that there was no proof in the case that would relieve the defendant from liability.

2. The learned trial judge ruled that the plaintiff was entitled to the cost of restoration. It would seem that the plaintiff should not make a profit out of the transaction, but the trouble with this branch of the case is that Avhen the plaintiff attempted to show that its security had been lost and that Randal who signed the bond accompanying the mortgage was insolvent he was met with an objection on the part of the defendant and the objection was sustained, we think improperly. We would not send the case back for a retrial upon a branch of the case which would have been fully presented, had the defendant not objected.

The assignments of error are overruled and the judgment is affirmed.