Farmers National Bank v. Kern

168 A.2d 620, 194 Pa. Super. 479
CourtSuperior Court of Pennsylvania
DecidedMarch 22, 1961
DocketAppeal, No. 429
StatusPublished
Cited by2 cases

This text of 168 A.2d 620 (Farmers National Bank v. Kern) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farmers National Bank v. Kern, 168 A.2d 620, 194 Pa. Super. 479 (Pa. Ct. App. 1961).

Opinion

Opinion by

Wright, J.,

We are here concerned with a dispute over the distribution of the proceeds of a sheriff’s sale of real estate on a writ of fieri facias. The sheriff’s schedule of distribution, after providing for costs and taxes, called for payment of the entire balance to the Farmers National Bank of Pennsburg, hereinafter referred to as Farmers, on whose judgment the writ had issued. Exceptions were filed by the Commonwealth Land Title Insurance Company, hereinafter referred to as Commonwealth, on the ground that its lien, although subsequent on the record, should be prior in distribution to a portion of the judgment of Farmers. On July 14, 1960, the court below, one judge dissenting, dismissed the exceptions. Commonwealth has appealed. The facts are not in dispute, and are set forth in the adjudication of Judge Forrest as follows:

“1. Defendants, Norman Kern and Edythe Kern, formerly owned certain premises on Hendricks Hoad, Kratz Station, Lower Frederick Township, Montgomery County, Pennsylvania.

“2. On June 10, 1953, defendants executed and delivered a mortgage upon said premises in favor of Olney Federal Savings and Loan Association in the sum of $5,000. The mortgage was duly recorded on June 10, 1953 in the office of the Recorder of Deeds of Montgomery County, Pennsylvania in Mortgage Book 2451 page 559.

“3. On January 20, 1956, defendants borrowed $3,-500 from the plaintiff, Farmers National Bank of Pennsburg and established a line of credit with the Bank, with a $20,000 limit. They executed and delivered a judgment note of $20,000 as collateral for the loan and line of credit. The loan was increased and reduced on several occasions in 1956. The outstanding balance in August, 1956 was $20,000. On September 14, 1956, the plaintiff recorded the judgment note [481]*481in Judgment Docket B-7, page 325, which judgment became a lien on the defendants’ property.

“4. On February 27, 1957 defendants purchased certain real estate in Upper Salford Township, this County.

“5. On May 7, 1957 defendants sold and conveyed their said property situate in Lower Frederick Township. Relying on an incorrect affidavit of Mr. and Mrs. Kern that there were no liens against the property except that of Farmers National Bank of Pennsburg and certain others not here relevant, the exceptant Commonwealth Land Title Insurance Company issued a policy insuring the purchaser of the property that his title was free of liens. The plaintiff agreed to and did execute and deliver a release of the lien of its judgment in exchange for the entire net proceeds of the sale or $10,017.80. This sum was received by the plaintiff on May 9, 1957 and credited the loan so that balance of the loan was reduced to $8,982.20.

“6. On May 7, ¡1957 the plaintiff caused its judgment to be revived in the principal sum of $20,000.00 with interest from April 22, 1957. The judgment as revived thus became a lien against the defendants’ property in Upper Salford Township.

“7. By error or mistake of Commonwealth Land Title Insurance Company, the mortgage of Olney Federal Savings and Loan Association was overlooked when the proceeds of the sale of the Lower Frederick Township property were distributed.

“8. On May 27, 1957, the Plaintiff complying with its earlier agreement with the defendants, extended credit in the amount of $10,017.80, thus raising the amount of the loan to $19,000. The defendants made several payments in reduction of the loan, reducing the balance of principal to $16,751.

“9. On June 28, 1957, the title insurance company purchased from the Olney Federal Savings and Loan [482]*482Association the mortgage and bond and warrant and received an assignment.

“10. On October 7, 1957, judgment was entered upon the bond accompanying the mortgage to Olney Federal Savings and Loan Association as of September Term, 1957, No. 490, and on October 22, 1957 said judgment was marked to the use of claimant, Commonwealth Land Title Insurance Company.

“11. On September 15, 1958, the plaintiff filed an assessment of damages in the amount of $18,404.26 and on the same day a Fi. Fa. was issued to the above-captioned term and number. The Upper Salford Township property was sold by the Sheriff on the Fi. Fa. on October 29, 1958 and the Sheriffs schedule of distribution shows, after payment of costs and taxes the entire balance of $13,156.62 payable to the plaintiff on the writ”.

The three contentions of Commonwealth on this appeal, as set forth in its brief, may be consolidated and stated as follows: Since the judgment of Farmers was confessed upon a note which was not specifically conditioned to secure future advances, Farmers could not, after receiving payment on account of the original obligation, advance additional funds and regard the preexisting judgment as security therefor to Commonwealth’s prejudice. It is argued that agreements for advance money security must be clearly set forth on the record, that an obligation on which a lien is based is reduced pro tanto by payment on account, and that the lien may not be resurrected as security for a later additional obligation.

The record clearly discloses that, as between Farmers and the Kerns, the judgment was regarded as security for a fluctuating amount of credit. Raymond S. Stevenson, President of Farmers, testified that the judgment was entered as a matter of collateral “on [483]*483record to secure the advance of funds anticipated . . . And there were re-advances all the time. In other words, it was a revolving line of credit, basing the security of that line from then on with the one-day note”. Mr. Stevenson further testified, contrary to Commonwealth’s theory, that the payment received by Farmers at the time of the release of its lien as to the property in Lower Frederick Township was not on account of or to be credited on the security judgment, but that the Kerns were to retain the proceeds of that sale “by a re-advance of credit from us”. In our opinion, the controlling circumstance is that this re-advance of credit by Farmers was made before Commonwealth’s lien was entered of record.

The rights of lien creditors are generally to be determined by their status as shown by the record at the time of the judicial sale: Natoli Appeal, 186 Pa. Superior Ct. 81, 140 A. 2d 458. It is true that obligations conditioned for present and future debt will not be preferred as to advancements made after the entry of subsequent liens: Ter-Hoven v. Kerns, 2 Pa. 96; The Bank of Montgomery County’s Appeal, 36 Pa. 170; Kerr’s Appeal, 92 Pa. 236. However, as already indicated, the obligation of Commonwealth in the instant case was not entered of record at the time the additional funds were advanced by Farmers. The lien of Commonwealth did not intervene between Farmers’ original judgment and its later advance, but is subsequent and junior to that advance. It is competent for parties to a judgment, by their own agreement, to change the purposes for which it may be held: Peirce v. Black, 105 Pa. 342. Instead of entering a new judgment at the time of the subsequent advance, which would concededly have been entitled to priority, Farmers was justified in treating the original judgment as sufficient for security purposes “for a judgment though paid in full may by agreement between the parties be kept [484]*484alive to secure new loans and advances”: Weaver’s Appeal, 115 Pa. 59.

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Bluebook (online)
168 A.2d 620, 194 Pa. Super. 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farmers-national-bank-v-kern-pasuperct-1961.