Commonwealth Land Title Insurance v. Doe

577 A.2d 1358, 395 Pa. Super. 595, 1990 Pa. Super. LEXIS 1379

• Court: Supreme Court of Pennsylvania
• Decided: July 6, 1990
• Docket: 1473
• Status: Published

Opinions

WIEAND, Judge:

The dispute in this appeal is between two innocent victims of fraud, both of whom sought to recoup their losses from a fund which was inadequate to satisfy both claims.

On June 21, 1988, T.A. Title Insurance Company (T.A. Title) was involved as title insurance company in a closing for real estate situated at 128-130 South Street, Philadelphia, which purportedly had been sold by or on behalf of Harriet and Martin Krasner. At the closing, T.A. Title delivered a check for $150,000 to a person representing himself to be the agent of the sellers. The check was deposited in an account which had been opened in the names of Harriet and Martin Krasner at Mellon Bank. On July 27, 1988, the sum of $37,000 was withdrawn from this account, leaving a balance in the account at that time of $114,010.30.

On July 29, 1988, Commonwealth Land Title Insurance Company (Commonwealth Land Title) was involved as title insurance company in a closing for premises known as 130 South Eleventh Street, Philadelphia. This real estate also was represented to have been sold by Harriet and Martin Krasner. At the closing, Commonwealth Land Title delivered a check for $284,686.29 to a person purporting to represent the sellers. This check was also deposited in the “Krasner” account at Mellon Bank. Following this deposit, the additional sum of $50,000 was withdrawn from the account, leaving a balance of $348,696.59.

It was subsequently discovered that the purported transfers of title had taken place without the knowledge of the true owners and that the deeds had been forged. The title insurance companies were notified of this development on August 8, 1988. Commonwealth Land Title acted promptly to seize the funds remaining in the Mellon Bank account. On August 10, 1988, it filed a fraudulent debtor’s attachment against the account. T.A. Title did not take action until September 15, 1988, when it moved to intervene in the proceedings which had been instituted by Commonwealth Land Title. Intervention was granted on September 22, 1988, when the trial court also entered an order permitting Commonwealth Land Title to proceed against all moneys in the account in excess of $114,010.30, which was placed in escrow to await an adjudication of the respective rights of Commonwealth Land Title and T.A. Title.

On October 14, 1988, a hearing was held on the issue of the distribution to be made of the monies which had been placed in escrow. At that time, the agreed facts were recited to the court by counsel. Following argument by counsel and based on the agreed facts, the trial court, on October 21, 1988, entered its decision awarding to Commonwealth Land Title from escrowed funds the sum of $55,-101.78 and to T.A. Title the sum of $58,999.52. The effect of the trial court’s order was to permit Commonwealth Land Title to recoup its loss in full from the account opened at the Mellon Bank and to award to T.A. Title the balance of the funds in the account. A motion for post-trial relief in the nature of exceptions, pursuant to Pa.R.C.P. 227.1, was filed by T.A. Title and denied on March 16, 1989. Judgment was entered in accordance with the court’s order of distribution on April 25, 1989, and this appeal by T.A. Title followed on May 3, 1989.

Commonwealth Land Title argues, inter alia, that T.A. Title’s appeal should have been taken from the trial court’s order of October 21, 1988, and that, therefore, an appeal taken on May 3, 1989 was untimely and improper. Insofar as the respective rights of Commonwealth Land Title and T.A. Title are concerned, however, it is clear that the parties submitted their respective claims to the trial court on stipulated facts, and that the proceedings held by the court were in the nature of a trial without jury on an agreed statement of facts.¹ Therefore, a motion for post-trial relief in the nature of exceptions to the court’s decision was not inappropriate, and this Court has jurisdiction to entertain the appeal.

With respect to the first $37,000 withdrawn from the account at the Mellon Bank, it is clear that the transaction occurred before any Commonwealth Land Title money had been placed in the account. This withdrawal, therefore, involved only funds coming from T.A. Title. Because this withdrawal was of funds belonging to T.A. Title, it must suffer the loss of $37,000. Commonwealth Land Title cannot be required to share in this loss.

“Priority between attachments and competing liens or claims, or priority among rival attachments, depends generally upon their priority in time, which is determined by the days on which their processes were executed.” 17 Std.Pa.Prac.2d, Attachment, Generally'§ 94:5 (1983). See: Rice v. Walinszius, 12 Pa.Super. 329 (1900). The vigilant debtor is to be rewarded not only for his own sake but as a matter of public policy. Philadelphia National Bank v. Hilgert, 3 Penny 437, 440 (Pa.1883). Thus, a fraudulent debtor’s attachment takes priority over a lien created several days later. Keystone State Corp., et al. v. Union Indemnity Co., et al., 43 Pa. D. & C. 69, 78-79 (Phila.1941).

In the instant case, the record is clear that Commonwealth Land Title’s attachment was issued more than a month before T.A. Title acted to assert its rights by intervening in the garnishment proceedings which had been commenced by Commonwealth Land Title. Therefore, Commonwealth Land Title’s attachment was entitled to priority over the claim of T.A. Title.

Appellant argues that because its check had been forged, title to the funds in the Krasner account at the Mellon Bank did not pass. Consequently, it argues, the funds remaining in the account were owned by it and Commonwealth Land Title and that the application of equitable principles requires a pro rata distribution. This argument is of no avail.

In the first place, “equity aids the vigilant, and not those who slumber on their rights.” Witmer v. Exxon Corp., 260 Pa.Super. 537, 556 n. 19, 394 A.2d 1276, 1286 n. 19 (1978), aff'd, 495 Pa. 540, 434 A.2d 1222 (1981). In this case, it was Commonwealth Land Title which acted diligently to prevent additional withdrawals from the account. T.A. Title did not act until an additional month had passed after Commonwealth Land Title’s attachment had effectively seized the account.

If T.A. Title is correct that title to the funds did not pass, it is nevertheless clear that its funds were commingled with funds of Commonwealth Land Title. In order to recover its funds, T.A. Title had to be able to trace its funds, and only funds so traced could be recovered. In attempting to trace funds, the rule in Pennsylvania is “first in, first out.” Pursuant to this rule, “the legal presumption is that the moneys were paid out in the order in which they were paid in, and [the parties claiming ownership] are equitably entitled to any allowable preference in the inverse order of the times of their respective payments into the fund.” Empire State Surety Co. v. Carroll County et al., 194 F. 593, 605 (8th Cir.1912). See: In re Woods Estate, 350 Pa. 290, 294, 38 A.2d 28, 30 (1944); Toll-Barkan Co. v. Toll, 193 Pa.Super. 221, 225, 164 A.2d 36, 38 (1960); Page v. Wilson, 150 Pa.Super. 427, 433, 28 A.2d 706, 709 (1942); Fischbach & Moore, Inc. v. Philadelphia National Bank, 134 Pa.Super. 84, 91-92, 3 A.2d 1011, 1014 (1939). This rule, although criticized by some legal scholars, remains the law in Pennsylvania.

Thus, even if Commonwealth Land Title’s attachment had been ineffective to seize funds in the account which belonged to T.A. Title, the proceedings were effective to seize funds of Commonwealth Land Title which remained in the account. Because the funds which had been withdrawn were funds belonging to T.A. Title, and because funds of Commonwealth Land Title had not been withdrawn, all of the funds advanced by Commonwealth Land Title remained in the account and could be recovered.

Thus, whether the funds in the “Krasner” account were attached as funds belonging to a third person or whether the commingled funds remained the property of the drawers of the checks, the trial court properly held that Commonwealth Land Title was entitled to a preference which enabled it to recover in full the funds which it had supplied.²

Judgment affirmed.

JOHNSON, J., files a dissenting opinion.

1 . The facts on which the trial court’s decision was based could have come only from the facts recited by counsel pursuant to stipulation. As the dissent has observed, there was no testimony taken at the hearing on October 14, 1988, and it is clear that the issue was not presented to the court on the basis of a case stated.

A case stated must be distinguished from a case tried by a court without jury upon stipulated facts, because on a case stated the parties submit an agreed statement of facts for the judgment of the court, whereas upon a trial without jury upon admitted facts the case is submitted for the decision of the court, in which latter case the court renders a decision instead of entering judgment.

7 Std.Pa.Prac.2d, Submission Upon Case Stated § 43:1 (1982).

2 . We find it unnecessary to review the entry of the default judgment entered in favor of Commonwealth Land Title against Mellon Bank. T.A. Title has no standing to challenge the right of Commonwealth Land Title to recover its loss from the Krasner account at the Mellon Bank except to the extent that such recovery impairs T.A. Title’s right to recover its loss from the same account.