Streng v. Holyoke Water Power Co. ( 1900 )

Opinion by

William W. Porter, J.,

On November 28, 1898, a petition was presented for leave to pay into court the amount of a certain mortgage under the provisions of the Act of April 3,1851, P. L. 860. On April 17, 1899, an order was made giving leave to pay into court, within thirty days, the amount claimed by the holders of the mortgage, together with accrued interest, attorney’s commissions, prothonotary’s percentage and taxable costs. It was further ordered that upon such payment being made, satisfaction should be entered on the mortgage. On 'May 15, a scire facias was issued on the mortgage, but was not served, because, as alleged, the mortgagors were nonresident. On May 16,1899, the full amount was paid into court. No appeal was taken from that order. Subsequently, on the distribution of the fund brought into court, an award of 1300 for attorney’s commissions was made by the court to the holders of the mortgage.

The sole question raised is, whether the holders of the mortgage were entitled to this allowance. It ivas provided by the mortgage that on default for sixty days in the payment of principal or interest, the mortgagees should have the right to enforce payment and that “ if at any time thereafter by reason of any default in payment, either of said principal sum of ten thousand dollars at maturity, or of said interest, .... a writ of scire facias is properly issued upon this indenture of mortgage, an attorney’s commission for collection, viz: five per cent, shall be payable and shal] be recovered in addition to all principal and interest then due, besides costs of suit,” etc.

It will be observed that the issuance of the scire facias was subsequent to the application for leave to pay into court, but preceded the actual payment. The application made by the mortgagors did not stay the mortgagees’ right of action on the mortgage. Nothing short' of actual deposit of the fund into court could so operate. The act of assembly gives no express power to the court to prevent the mortgagees from proceeding to collect the mortgage debt, pending the mortgagors’ application. Nor was an order of stay attempted to be made. In Pennock v. Stewart, 104 Pa. 184, it is said, referring to the act of 1851, that, “ As a general rule, proceedings on the scire facias sur mortgage should not be stayed until the amount claimed is actually paid into court. Until then the mortgage security with all its incidents belongs to the mortgagee, and he has a right, save in exceptional cases, to proceed thereon until the mortgagor has placed himself in a position to demand that satisfaction be entered on the security. This he can do only by paying into court the full amount claimed and thus substituting the money for the mortgage security.”

The right, then, of the mortgagees to an allowance for attorney’s commissions in the decree of distribution depends upon whether the scire facias “ properly ” issued, under the terms of the mortgage. It could issue for default in payment of interest, or of principal, for sixty days. As shown by the petition originally presented by the mortgagors, the principal became due November 26, 1898. It was not paid into court until May 16, 1899. The scire facias issued May 15, 1899. The principal was at that time more than sixty days overdue. By the same petition it appears that three semi-annual payments of interest were not made.

The mortgagors, however, claim that they were not in default, that they were ready and willing to pay, but that they were prevented because of the levy of an attachment upon them as garnishees upon a judgment against the original holders of the mortgage, and because of a defective acknowledgment of the assignment of the mortgage to the present holders. The existence of an attachment did not prevent the institution of suit by scire facias, nor forefend the consequences of default for sixty days in making the stipulated payments, since the mortgagors, claiming no interest, might have invoked the equitable powers of the court to compel an interpleader. Nor did the existence of an alleged defective acknowledgment to the assign■ment of the mortgage to the holders. The right to sue was in the assignees of the mortgage, and on proof of ownership they could have recovered. The mortgagors might have driven them to a suit by denying their title, but could not have successfully taken the ground that no default in payment had occurred.

The mortgagors further say, in effect, that they withheld payment of principal and interest at the request of the holders of the mortgage, and were therefore not in default. Should this he conceded, the mortgagors evidently rescinded the arrangement when they applied for leave to pay into court, in opposition to notice from the holders of the mortgage. From the time of the application to the court, the mortgagors lost any protection theretofore furnished by the assent of the holders of the mortgage to the withholding of payment.

We therefore conclude that the scire facias was properly issued, inasmuch as the mortgagors were in default under the terms of the mortgage, and as the payment into court under the act had not been actually made when the writ was issued. This conclusion affirms the legality of the allowance of the attorney’s commissions. The amount has been fixed by the court below at less than the percentage allowed by the mortgage. This was within the power of the court, and we see no occasion to disturb the order made.

The judgment is affirmed.