Union Safe Deposit Bank v. Nichter

Citations

• 224 Pa. 227
• 73 A. 558
• 1909 Pa. LEXIS 762

Syllabus

<p>Practice, C. P. — Judgment—Opening judgment — Affidavit of defense — Supplemental affidavit of defense.</p> <p>1. Where the court makes an order allowing judgment to be entered for want of a sufficient affidavit of defense, but before judgment is actually entered, the defendant moves for permission to file a supplemental affidavit of defense, and thereafter judgment is entered, the court may open the judgment and permit a supplemental affidavit of defense to be filed.</p> <p>Bond — Bond of indemnity — Mortgage—Mortgage held as collateral —Interest.</p> <p>2. In an action on a bond of indemnity it appeared that the plaintiff, a bank, held a mortgage against certain real estate, and to protect itself bought in the real estate at a sale in bankruptcy. The sale discharged the lien of the mortgage. The defendants purchased the property from the plaintiff, and gave the bond in suit by which they agreed to protect the plaintiff from any loss which might result from the mortgage not being paid in full out of the proceeds of the sale upon distribution thereof. The bond stipulated for the payment of “the difference between the said mortgaged debt with interest on the same until the same is paid together with costs,' and the amount awarded to said mortgage upon distribution.” No actual distribution or payment was made until two and one-half years after the sale. The plaintiff then received the full amount of the mortgaged debt, with interest thereon to the date of the sale. It then brought suit to recover interest from the date of the sale to the date of distribution. Defendant filed an affidavit of defense which averred that the mortgage was held by plaintiff as collateral security for a loan, that the plaintiff had been paid all interest on the loan by the debtor, and that it had not sustained any loss or damage by reason of the mortgage not having been paid in full with interest and costs. Held, that the affidavit of defense was sufficient to prevent judgment.</p> <p>3.