Apollo Trust Co. v. Safe Deposit & Title Guaranty Co.

Opinion by

Oblady, J.,

It is now fully established by many authorities, that jurisdiction in equity no longer depends solely upon the want of a common-law remedy. If upon consideration'by the court the remedy by an action in assumpsit is inadequate, or is insufficient to effect complete justice between the contending litigants, 'the court maj' properly adjudge the proceeding by a bill in equity to be the most convenient and effective in order to reach all the phases of the plaintiff’s contention, so as to dispose of the whole matter by securing and protecting the present and future interests of all parties concerned in the controversy. This is particularly the rule when the facts are conceded by demurrer, and the accounts are complicated, or are all in the hands of one of the parties, or the situation involves a trust or confidential relation: Brush Electric Co.’s Appeal, 114 Pa. 574; Conemaugh Gas Co. v. Gas Co., 186 Pa. 443 ; Blair v. Supreme Council, 208 Pa. 262.

The suggestion by the demurrer as to Lunderstadt not being a party to the bill was properly met by allowing the amendment, adding him as a defendant, the authority for such order being found in rule 36 of the equity rules. The important facts are not in dispute. On June 15,1899, the debt of Lunderstadt to the Safe Deposit and Title Guaranty Company was 11,500 and no more. On the same day, to secure this debt he assigned to the company his mortgage against Robertson in the sum of $2,300, payable in installments of $500 each, on May 1, 1900, 1901, 1902 and 1903, and $300 on May 1, 1904; which the company accepted and had duly recorded. Robertson paid to the company by virtue of the assignment each of the payments with interest as they became due to the date of filing the bill, and admitted that there remained unpaid the one installment due May 1, 1904.

It is distinctly averred in the fourth paragraph of the bill, and must be accepted as an admitted fact, that the mortgage of Robertson to Lunderstadt was assigned to the Safe Deposit and Title Guaranty Company as collateral security for the payment of his existing indebtedness to said company of $1,500, and upon the express agreement and understanding that after the payment of the first three payments the balance and remainder of said mortgage debt, to wit, $800, was to be reassigned and paid by the said Thomas Robertson to the said assignor.

Instead of keeping himself in position to demand personally the unpaid balance, on October 18, 1900, he assigned to the Apollo Savings Bank, the plaintiff herein, as a collateral security for an indebtedness to that bank “ his equitable interest, claim and demand of, in and to ” the Robertson mortgage, “ which may remain to me over and above the amount of my indebtedness to the Kittanning Safe Deposit and Title Guaranty Company,” and directed that company to ]3ay over to the second assignee “ all monies remaining in their hands from the collection of said mortgage.” The exact facts of the extent of the indebtedness of Lunderstadt being furnished by the secretary and treasurer of the guaranty compauj’- to the cashier of the plaintiff bank prior to the bank’s dealing with Lunderstadt for the balance due on the mortgage, and admitting that the assignment of the mortgage was as -collateral security for his indebtedness to the guaranty company, and for no other purpose whatever, it is difficult to understand why the guaranty company received the fourth installment of $500 and interest on May 1, 1903, after the debt of Lunderstadt had been fully paid to the company by Robertson ; and further, why the company refused on a proper demand to reassign the balance due on the mortgage to the plaintiff bank, inasmuch as he had a clear legal title to assign the unpaid balance of the mortgage. The fact that the first assignment was absolute on its face, was not conclusive in the light of the added proof. The demurrer deals exclusively with technical objections which were properly dismissed by the court, and after complying with the decree as entered, the satisfaction of the mortgage is a matter which may be easily disposed of by a subsequent decree of the court, so that the rights of all the parties will be fully conserved.

The decree is affirmed.