Culver v. Thompson, Exr.

Supreme Court of Pennsylvania
Culver v. Thompson, Exr., 267 Pa. 400 (Pa. 1920)
110 A. 85; 1920 Pa. LEXIS 876
Brown, Frazer, Kephart, Simpson, Stewart, Walling

Culver v. Thompson, Exr.

Opinion of the Court

Per Curiam,

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 *402mortgage and the indebtedness represented by it is paid or otherwise extinguished by him, or at his instance. In view of the facts found this decree properly followed the prayer “for other and further relief.” The learned chancellor found that shortly before the appellee executed her mortgage to the appellant he called at her home with one of the Larneds, who introduced him as the man who was about to lend her the money to pay off the Powell mortgage; that in response to appellee’s inquiry whether the mortgage which she contemplated executing in favor of the appellant would settle the Powell mortgage, he replied that Larned looked after his business and would see that everything was all right; that the Larneds 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. If authority be needed in support of the decree which followed these facts, it will be found in Powell v. Old Hickory Building and Loan Association, 252 Pa. 587.

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.