McNicholas' Appeal

9 A.2d 200, 137 Pa. Super. 415, 1939 Pa. Super. LEXIS 53

• Court: Superior Court of Pennsylvania
• Decided: September 25, 1939
• Docket: Appeal, 247
• Status: Published

Opinion

Opinion by

Baldrige, J.,

This appeal is from the dismissal of exceptions to the first and partial account of the Secretary of Banking as receiver of the George W. Hyde Building and Loan Association Number Three.

The appellant, Mary McNicholas, was the holder of a first mortgage of $3,000 on premises 3925 North Eighth Street, Philadelphia, and the George W. Hyde Building and Loan Association Number Three held a second mortgage.

On December 21, 1936, the Secretary of Banking took control of the building and loan association and shortly thereafter went into possession of the mortgaged premises as mortgagee and collected the rents until the first mortgagee took possession of the premises. The account of the receiver sets forth that he collected $432 in rents from the property and that after paying all expenses, including the 1937 taxes and two interest installments of $90 each on the first mortgage, there remained a balance of income in his hands of $137.76, which appellant alleges is due her on account of accrued interest and 1938 taxes, totalling $172.69.

The receiver denied liability on tbe ground that tbe association did not create the mortgage owned by tbe appellant or assume contractual liability to pay it, and never was tbe owner of tbe premises; that, therefore, tbe claimant, as first mortgagee, is not entitled to tbe income derived from tbe mortgaged premises while be as receiver was in possession.

Tbe appellant contends that under tbe Banking Code of May 15, 1933, P. L. 565, §701 (71 PS §733-701), tbe Secretary of Banking as a receiver is tbe representative of all tbe creditors, tbe same as a general receiver appointed by a court of equity, and as a creditor she is entitled to the $137.76.

Tbe difficulty that confronts tbe appellant is that she is not a creditor of tbe building and loan association, tbe second mortgagee. The mortgagor, tbe owner, only was obligated to her, not tbe bolder of tbe second mortgage. Tbe receiver, tbe mortgagee in possession, was never tbe registered owner or, as above mentioned, tbe real owner of tbe mortgaged premises. A mortgagee in possession is a quasi trustee for tbe owner of tbe premises who may make a demand for an accounting of rents received. Tbe appellant, a first mortgagee, however, cannot call upon tbe second mortgagee to account to her for tbe income received while in possession of tbe premises: Provident Trust Co. v. Judicial B. & L. Assn. et al., 112 Pa. Superior Ct. 352, 355, 171 A. 287; Fassitt v. North Tioga B. & L. Assn., 133 Pa. Superior Ct. 146, 2A. 2d 499. Tbe appellant argues that this rule is not' applicable, as tbe receiver lulled her into a sense of security when be “advised” her that after tbe rents were collected be would pay tbe taxes, water rent, and tbe first mortgage interest. No proof whatever was adduced that any statement of such a character was made. That position, therefore, is not entitled to consideration as there is nothing to support it.

We find no sufficient reason advanced to disturb the disallowance of appellant’s claim.

Decree affirmed, at appellant’s costs.