Culver v. Thompson, Exr.
Culver v. Thompson, Exr.
Opinion of the Court
On December 16, 1916, the appellee executed a mortgage to the appellant, for $1,900, which was duly recorded. This-bill was filed to compel him to pay a prior and smaller mortgage, held by Loretta S. Powell, on the ground that he had agreed to do so out of the proceeds of the mortgage given to him by the appellee. He placed the proceeds of it in the hands of Larned & Son, real estate and loan agents, doing business in the City of Wilkes-Barre, but they failed to pay the prior mortgage, and it remains a lien against appellee’s property. While the court below did not grant the specific relief prayed for, its decree enjoins the appellant from collecting the mortgage given to him by the appellee until the Powell
Decree affirmed at appellant’s costs.
Reference
- Status
- Published
- Syllabus
- Principal and agent — Payment of mortgage by agent — Embezzlement of funds — Evidence of agency — Equity—Practice, Equity —Prayers of bill — Further relief. 1. On a bill in equity to compel the payment of a mortgage and “for other and further relief,” where it appears that plaintiff had executed a mortgage to defendant, duly recorded, under an agreement that he would pay a prior and smaller mortgage out of the proceeds, and that he, acting through his agent, had failed to do so, the court may properly enter a decree, under the prayer for other .and further relief, enjoining the defendant from collecting his mortgage, until the prior mortgage and the indebtedness represented by it were paid or otherwise extinguished by him, or at his instance. 2. In such case plaintiff is entitled to a decree in her favor, where it appears that, shortly before plaintifE executed her mortgage to defendant, the latter called at her home with a real estate agent, who introduced defendant as the man who was about to lend her the money to. pay off the prior mortgage; that in response to plaintifE’s inquiry, whether the mortgage which she contemplated executing in favor of defendant would settle the prior mortgage, defendant replied that the real estate agent looked after his business and would see that everything was all right; that such agent’s firm had transacted business for him for many years; that they would see he would get a first lien, and that if they did not do so he would not lend the money; and it further appears that the agent failed to pay the prior mortgage, which remained a lien against plaintiff’s property.