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COLE-KNOX MORTGAGE COMPANY v. MCGAFFIN ET UX. (12/28/56)

December 28, 1956

COLE-KNOX MORTGAGE COMPANY
v.
MCGAFFIN ET UX., APPELLANTS.



Appeal, No. 4, April T., 1956, from decree of Court of Common Pleas of Allegheny County, April T., 1953, No. 2051, in case of Cole-Knox Mortgage Company v. Charles A. McGaffin et ux. Decree affirmed.

COUNSEL

William L. Jacob, with him William L. Jacob, Jr., for appellants.

Hillard Kreimer, with him McCrady & Kreimer, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Hirt

[ 182 Pa. Super. Page 612]

OPINION BY HIRT, J.

Walter P. Helinski and his wife were the owners of four adjoining lots in the Sixteenth Ward of the City of Pittsburgh. They contracted with McGaffin Construction and Supply Company, a corporation, for the erection of a dwelling house on their lots at a cost of $13,250. Defendant Charles A. McGaffin was the president of the corporation and his wife, the other defendant, was the majority stockholder. In financing the construction of the house Helinski and his wife secured a loan in the form of a construction mortgage in the face amount of $7,500 from the plaintiff, Cole-Knox Mortgage Company. The mortgage was dated February 16, 1952 and construction began early in the following month. Plaintiff Cole-Knox Company advanced a total of $6,720.46 on the mortgage. The lots were hillside properties and in June 1952 when the house was about 95% completed, the Helinskis through an excavating contractor, placed a large amount of dirt fill around the building, especially to the rear of the structure. The weight of the fill against the upper side of the house exerted so much pressure that it caused the building to move downhill from its foundation; other serious damage to the structure resulted.

By deed dated September 17, 1952, defendant Charles A. McGaffin bought the Helinski property in the expectation of saving the damaged house. He paid

[ 182 Pa. Super. Page 613]

    the Helinskis $3,250 and in his own name took title under the above deed to the four lots as one parcel of land, with the damaged house upon it. The conveyance from the Helinskis which McGaffin accepted contained the following recital: "This conveyance is made under and subject to mortgage from grantors [Walter P. Helinski and Wanda M. Helinski, his wife] herein to Cole-Knox Mortgage Co., said mortgage being dated February 16, 1952, and of record in the Recorder's Office of Allegheny County, Pennsylvania, in Mortgage Book Volume 3266, page 558, on which the balance due on September 16, 1952, is $6,847.54, which grantee assumes and agrees to pay." On February 4, 1953, judgment on the bond accompanying the mortgage was confessed against the Helinskis and execution issued. The property however was returned "unsold" by the sheriff. On April 29, 1953, suit in assumpsit was instituted by Cole-Knox Mortgage Company against Charles A. McGaffin under his assumption agreement to pay the above mortgage and on June 6, 1953 judgment by default was taken against him for $7,750.33. On January 15, 1953 the house was condemned by the city building inspector and was later demolished by a wrecking company.

Defendant Charles A. McGaffin was the owner of two other tracts of land which had been conveyed to him by the Helinskis in 1950. In August 1951 he and his wife Rita I. McGaffin had entered into articles of agreement with one Joseph M. Klein and wife for the purchase of 1.68 acres of vacant land in Upper St. Clair Township, Allegheny County, referred to as the Paris Lake property. In the written contract they agreed to pay $1,350 for the land. The deed from the Kleins conveying the property was made in the name of defendant Charles A. McGaffin, alone, as grantee.

[ 182 Pa. Super. Page 614]

By deed dated January 26, 1953, duly recorded, McGaffin conveyed all of the above land to himself and his wife as tenants by the entireties. McGaffin then had no other assets in his own ...


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