Appeals, Nos. 237 and 238, Jan. T., 1951, from judgments of Court of Common Pleas No. 7 of Philadelphia County, March T., 1951, No. 5865, in case of Commonwealth of Pennsylvania, to use of Willow Highlands Company v. Maryland Casualty Company and Edward W. Sliker. Judgment for Commonwealth affirmed; judgment for use-plaintiff reversed.
Robert C. Kitchen, with him Richard A. Smith and Robert S. Ingersoll, Jr., for appellant.
Herbert A. Barton, with him Swartz, Campbell & Henry, for appellee.
Before Drew, C.j., Stern, Stearne, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
This is a proceeding to recover on the bond of a Notary Public. It arises from still another of the "Bennewitt" mortgage transactions.*fn1
The complaint filed by the use-plaintiff, Willow Highlands Company, averred that use-plaintiff had agreed to advance the sum of $5500 on a loan to Herbert and Mary L. Leach to be secured by a first mortgage on premises owned by them at 5803 North 7th Street, Philadelphia; that H. Richard Bennewitt made application to the Land Title Bank & Trust Company for title insurance on the mortgage; that the use-plaintiff delivered to the Trust Company its check in the sum of $5500 to cover the amount of the mortgage, which check was cashed by the Trust Company and deposited in its settlement accounts and allocated to the mortgage settlement on the premises; that at the settlement for the mortgage Edward W. Silker, a Notary Public, certified that Herbert and Mary Leach swore and subscribed before him that they were the owners of the premises; that the purported signatures of Herbert and Mary Leach to the affidavit were forgeries; that at the settlement Sliker also certified as a Notary Public that Herbert and Mary Leach personally appeared before him and acknowledged the mortgage upon the premises to be their act and deed and desired that it might be recorded as such; that the mortgage was thereupon recorded in the office of the Recorder of Deeds in and for the County of Philadelphia; that the purported signatures of Herbert and Mary Leach on the mortgage were forgeries; that neither of them
had personally appeared before Sliker and had never made any acknowledgment before him of the mortgage; that the mortgage was totally invalid and void; that in accordance with the settlement the Trust Company issued its settlement check payable to the order of Herbert and Mary Leach in the sum of $5417.75 and gave it to Bennewitt for delivery to Herbert and Mary Leach; that Bennewitt forged the endorsements of Herbert and Mary Leach on the check, added his own endorsement to the forgeries, and received from the Trust Company the amount of the check; that by reason of these facts the use-plaintiff sustained a loss of $5500, against which it allowed a credit in the sum of $1133.40 representing a dividend paid by the bankrupt estate of Bennewitt on the claim of $5500. On the basis of these averments the use-plaintiff claimed of Sliker and Maryland Casualty Company, the surety on his official bond, the sum of $4366.60 with interest.
Maryland Casualty Company filed an answer to the complaint denying that the use-plaintiff sustained the loss claimed by it, and in New Matter it averred that the payment made by the Trust Company's banking department to Bennewitt on his forged endorsements on the settlement check, which had been drawn by its real estate department, was not in fact charged by the banking department against the real estate department nor by the latter against the special deposit of the use-plaintiff; that the use-plaintiff's deposit with the real estate department of the Trust Company was not spent and the entire deposit was refunded by the real estate department to the use-plaintiff, so that the latter suffered no loss whatever in the subject matter of this suit; that the loss sustained by the Trust Company by reason of its payment to Bennewitt was insured under a policy issued to the Trust Company by the Indemnity Insurance Company of North America, which paid the amount of the loss in full to the Trust
Company and was therefore the real party in interest; and that the claim filed in the bankruptcy proceedings of Bennewitt was filed in the name of the Trust Company and the dividend of $1133.40 was paid to and received by the Trust Company for ...