Appeal, No. 259, Jan. T., 1956, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1955, No. 5869, in case of Louis Liss et al. v. Medary Homes, Inc. et al. Judgment affirmed.
David Freeman, for appellants.
Herman Blumenthal, for appellees.
Before Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiffs brought an action to quiet title to a piece of ground situate at the northwest corner of 19th
Street and Godfrey Avenue, in the City of Philadelphia. Defendants, in their answer admitted all of the facts except the averments of fraud which they denied. The lower Court, without passing upon the question of fraud, sustained plaintiffs' motion for judgment on the pleadings.
On June 2, 1952, plaintiffs and their wives conveyed the subject premises to the defendant, Medary Homes, Inc. (hereinafter referred to as Medary), for a total consideration of $26,489.10, of which $3,239.10 was in cash and the balance of $23,250.00 was a purchase money mortgage. This purchase money mortgage, which was duly recorded on June 11, 1952 as a first lien, contained a provision making it subordinate to the lien of "any new construction mortgages" to be created on the premises.
In August of 1953*fn* a judgment was entered by one Harry Moses against Medary in the sum of $1,757.73. This judgment constituted a second lien on the property.
Prior to October 29, 1953, mortgagor paid to the mortgagees on account of the purchase money mortgage the sum of $10,500., which it derived from the proceeds of sale of part of the mortgaged premises on which it had erected seven duplex dwellings. That ground was released from the lien of the purchase money mortgage. The mortgagor then defaulted in the payment of interest, and on October 29, 1953 plaintiffs caused judgment to be entered upon the bond made by Medary accompanying ...