Union Trust Co. v. Cain

29 Pa. Super. 189, 1905 Pa. Super. LEXIS 291

• Court: Superior Court of Pennsylvania
• Decided: October 9, 1905
• Docket: No. 1; Appeal, No. 231
• Status: Published

Opinion

Opinion by

Beaver, J.,

The appellant endeavored to recover from the terre-tenants in this case the arrearages of interest upon a mortgage given by Cain and wife to Johanna Montgomery, the decedent, for purchase money of a lot sold by McCrickart, the attorney in fact of Mrs. Montgomery. The mortgage taken for the purchase money was assigned by McCrickart to Pittsburg Lodge 337, I. O. O. F. McCrickart acted as attorney in fact for Mrs. Montgomery, under a special power of attorney, authorizing him to sell and convey the property in question. His power to sell' and to take a mortgage for the unpaid purchase money is not denied. Mrs. Montgomery went abroad soon after executing the power of attorney to McCrickart who, during her absence, assigned the mortgage in question, among others, to the lodge of Odd Fellows, to which McCrickart was indebted and of which he was a trustee. In 1894, upon the return of Mrs. Montgomery from Europe, a statement was furnished her by her attorney in fact, McCrickart, in and by which he acknowledged himself to be indebted to her the amount of this mortgage among others. She revoked his power of attorney July 23,1894, and later made information against him for embezzlement, upon which he was indicted at September sessions 1894.

Later Mrs. Montgomery filed a bill in equity against the lodge of Odd Fellows aforementioned, reciting the facts, and among them especially the assignment of this mortgage, among others, to it, alleging that the assignment was void, and praying : “ First. That the defendant be ordered and decreed by the court to reassign said mortgages to me. Second. That the defendants account for and pay over to me any and all money received by them from the sale of said mortgages and for any interest received thereon.”

The result of the hearing of the bill in equity was the following decree :

“ And now, December 19,1900, this cause having been heard upon bill, answer and testimony of both plaintiff and defendants, after full argument of counsel for both parties, and it appearing that the plaintiff is dead, and that her administrator, the Union Trust Company, of Pittsburg, has been substituted as plaintiff, it is ordered, adjudged and decreed that the defendant, the Pittsburg Lodge, No. 336, independent order of Odd Fellows, by its proper officers shall and do assign, transfer and set over by a sufficient paper or writing of assignment unto the said Union Trust Company, of Pittsburg, administrator of Johanna Montgomery, deceased, that certain bond and mortgage dated November 28, 1892, given by William H. Cain and wife unto Johanna Montgomery, to secure the sum of seven hundred ($700.00) dollars, which mortgage is recorded in the recorder’s office of Allegheny county, in mortgage book 640, page 131, and that mortgage so assigned shall bear interest from the 28th of May 1900, being last interest payment period previous to the hearing in this case, and that said lodge, defendant, shall and do pay forthwith unto said Union Trust Company, of Pittsburg, administrator, the sum of three thous- and, four hundred and seventy-one and sixty-seven one-hundredths ($3,471.67) dollars, with interest from December 3, 1900, this being the moneys received by said lodge of the principal and interest on the mortgages numbers one, three, four and five, described in the bill, and also the interest received on mortgage number two up to May 28, 1900, and the costs incurred in this case.”

The grounds upon which this decree rests, as recognized in the review of the case in Union Trust Co. v. Means, 201 Pa. 374, are that the attorney in fact, who made the assignment to the lodge, was also the trustee of the latter and necessarily had knowledge of the fact that the assignment was made to pay the personal debt of the attorney to the lodge. It is to be remarked here, however, that the terre-tenant is not to be charged with knowledge of this transaction. He was justified in assuming that an assignment of the mortgage of record, on its face regular, entitled the assignee to receive the interest in the absence of knowledge or notice of any kind to the contrary.

The legal effect of this decree, or at least the legal inference to be drawn from it, as we understand, it, is to recognize as valid the payments of interest made by the terre-tenant to the defendant in the bill in equity, inasmuch as it specifically provides for payment of interest only from the last interest bearing period previous to the hearing.

In accordance with the terms of the decree, the mortgage was assigned to the appellant and, on September 18, 1901, the terre-tenants were notified that the plaintiff was the owner of the said bond and mortgage, in accordance with which the principal and interest from May 8, were paid by Hailman, one of the terre-tenants, to it, as administrator of Mrs. Montgomery.

Under these facts, as set forth more or less fully in the opinion of the court entering judgment for the defendant n. o. v., we can see no-error in the entry of that judgment, which is the only error complained of. .

The court below held, as a matter of law, that the appellant was estopped from maintaining the action. In 16 Cyc., under the head of Estoppel, 813, the general rule is briefly stated: “ Ordinarily, where there is no dispute about the facts, it is a question of law whether or not the facts proved constitute an estoppel; otherwise questions of estoppel are peculiarly for the determination of the jury.” Under the authorities cited for this proposition is the case of Cox v. Rogers, 77 Pa. 160.

The appellant contends that the question of estoppel was for the jury, inasmuch as there were disputed facts raised by the oral testimony. We do not so understand it. The specific admissions of fact made at the trial, the averments of the bill in equity and the evidence of Mrs Montgomery at the hearing of said bill raised all the material facts necessary to the determination of the question and, in our opinion, fully justify the conclusion reached by the court. If it was the intention of Mrs. Montgomery to recover from .the mortgagors the amount of their mortgage, she should have included them in her bill and have asked for an injunction to restrain them from paying the interest to the assignee who held the mortgage and was presumably the owner of it. She did not do this and secured by the decree and in compliance with its terms all that she asked.

It is unnecessary to recapitulate or discuss the reasons upon which the court below reached its conclusion. They are fully given in the opinion and are, in the main, satisfactory. We think the case was properly disposed of by the entry of the judgment for the defendant n. o. v.

Judgment affirmed.