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TAYLOR v. SECKINGER. (09/13/62)

September 13, 1962

TAYLOR, APPELLANT,
v.
SECKINGER.



Appeal, No. 166, Oct. T., 1962, from order of County Court of Philadelphia, Dec. T., 1958, No. 544, in equity, in case of Willa Mae Taylor v. Charles L. Seckinger et ux. Order affirmed.

COUNSEL

Herman Moskowitz, with him Paul M. Goldstein, for appellant.

C. Laurence Cushmore, Jr., with him White & Williams, for appellees.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Woodside

[ 199 Pa. Super. Page 263]

OPINION BY WOODSIDE, J.

The plaintiff in this equity case is appealing from an order of the court below in favor of the defendants.

Willa Mae Taylor, the plaintiff, and her husband, Paul Taylor, purchased, as tenants by entireties, premises at 122 Hobart Street, Philadelphia, in April 1951. At the same time, they gave a mortgage on the premises to Charles L. Seckinger and Anna M. Seckinger, his wife, the defendants, for $3950. They also paid for and delivered to the mortgagees a standard fire insurance policy insuring the building against loss by fire in the amount of $6000 and containing a standard mortgagee clause in favor of the Seckingers.

On April 17, 1957, the building was damaged by fire. Paul Taylor, husband of the plaintiff, was convicted

[ 199 Pa. Super. Page 264]

    of arson in connection with the fire. The damage covered by the fire insurance policy was $2375. The Home Insurance Company paid this sum to the mortgagees, but only upon condition that they would assign the mortgage to it.*fn1 The mortgage assignment from the Seckingers to the insurance company was made October 16, 1957, and was recorded October 22, 1957. It contained a condition that the assignment was subject to the payment to the Seckingers of $752.98, being the unpaid balance of principal of the mortgage after crediting the amount paid the Seckingers by the insurance company. The mortgage was not in default on May 26, 1959, when the balance due thereon was $2537.84. The plaintiff then tendered to the defendants the difference between the balance due and the amount the Seckingers received from the insurance company, plus interest and costs of satisfaction, and demanded that the mortgage be satisfied. The Seckingers refused the tender and refused to satisfy the mortgage which had been assigned to the insurance company.

On December 3, 1958, the plaintiff filed this bill in equity asking the court to order the defendants to devote the fund received from the insurance company to ...


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