Appeals from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1960, No. 4025, in case of The Penn Mutual Life Insurance Company v. Louis Finkel.
Edward Stone, with him A. Samuel Buchman, for appellant.
Gerald Gornish, with him M. Melvin Shralow, and Goodis, Greenfield, Narin & Mann, for appellant.
Joseph R. Ritchie, Jr., Assistant United States Attorney, with him Drew J. T. O'Keefe, United States Attorney, for United States of America, appellant.
Morris C. Solomon, with him Solomon, Tolson & Resnick, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen took no part in the consideration or decision of this case.
This case involves three appeals from an order of the Court of Common Pleas of Philadelphia County allocating the proceeds of a sale in a mortgage foreclosure action. The foreclosure was instituted by the Penn Mutual Life Insurance Company, holder of a mortgage given by Louis Finkel, record owner of the property. In dispute is the allocation of that portion of the proceeds of sale in excess of the mortgage debt, foreclosure costs and local property taxes due.
Herman Werner filed a petition for distribution in the court below in which he claimed one-sixth of the fund involved on the ground that he had contributed one-sixth of the purchase price of the property, thereby becoming the equitable owner of one-sixth of the property recorded in Finkel's name. To this petition, separate answers were filed by three parties claiming a right to the fund or participation therein.
The United States of America (U. S.) asserted a right to the entire fund in payment of liens dating from 1952 for income taxes owed by Finkel; Westinghouse Electric Corporation (Westinghouse) sought payment of a lien against the property in the amount of $13,966.56, based on a judgment entered against Finkel in April 1959 by authority of a confession of judgment in a note; Joseph H. Resnick, Esq., asserted a claim for legal services rendered the two owners, Finkel and Werner, from 1953 to 1960 as an equitable charging lien against the fund, and as a judgment lien entered against Finkel by confession in April of 1960.
Depositions were taken inquiring into the basis of Werner's interest as part owner of the property and the knowledge of U. S. of this interest. Counsel for the contending claimants also filed a stipulation agreeing to certain pertinent facts. Argument before the court followed on the pleadings and record thus established.
The court below found Werner's asserted one-sixth ownership in the property to be authentic and valid and U. S. to have had knowledge thereof. These conclusions are not challenged here. The court then ruled: (1) that Attorney Resnick's services entitled him to a first lien against the fund in the amount of $7,500, in the nature of an equitable charge, i.e., a "charging lien"; (2) that U. S. was entitled to five-sixths of the ...