Appeal, No. 326, Oct. T., 1959, from order of Municipal Court of Philadelphia County, Dec. T., 1958, No. 544, in equity, in case of Willa Mae Taylor v. Charles L. Seckinger et ux. Order stricken in part; case remanded.
Horace Michener Schell, for appellants.
Herman Moskowitz, with him Paul M. Goldstein, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).
[ 191 Pa. Super. Page 71]
The plaintiff filed a bill in equity in which she alleged the following: At all times relevant hereto, she and her husband held title to premises in Philadelphia on which the defendants hold a mortgage. She and her husband purchased a fire insurance policy containing a standard mortgagee clause in favor of the defendants and insuring the premises against loss by fire. In April, 1957, the premises were damaged by fire, and the insurance company paid the defendants as mortgagees $2375 for the damage to the premises. The
[ 191 Pa. Super. Page 72]
mortgage in the principal sum of $3950, payable within ten years from April 1951, in 120 equal installments, has never been in default. Although not specifically alleged, it would appear that at the time of filing this action the balance on the mortgage was less than the amount paid the mortgagees by the insurance company. The plaintiff requested the defendants to either repair the damage caused by the fire, or consent to the plaintiff making the repairs to be paid from the sum realized from the insurance company. The defendants refused, and the repairs have not been made.
In her bill the plaintiff prays that the sum received by the mortgagees from the insurance company be declared a trust fund for the repair of the fire damage caused to their premises, and that the mortgagees be directed to make payments therefrom at such time, and in such amounts, as the plaintiff would request for the repairs of the fire damage. The plaintiff further prays for general relief.
The defendants filed the five following preliminary objections: (1) The complaint did not state a cause of action; (2) the complaint did not join plaintiff's husband, a necessary party; (3) the payment by the insurance company to the mortgagees was made under a contract between the company and mortgagees in which the plaintiff had no interest; (4) there is no legal or equitable obligation of the defendants to apply the funds to the repairs of the premises; and (5) there was an adequate remedy at law.
The court below dismissed objections 1,2,3, and 5, and sustained 4, and added to its order "... the Court specifically rules that under the complaint, defendants hold the fund here involved in trust only as security for the mortgage debt and Plaintiff is granted ...