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FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION ERIE v. GREAT NORTHERN DEVELOPMENT CORPORATION JAMES F. ZAGGER AND SONIA A. ZAGGER (11/26/80)

filed: November 26, 1980.

FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF ERIE, APPELLANT,
v.
GREAT NORTHERN DEVELOPMENT CORPORATION; JAMES F. ZAGGER AND SONIA A. ZAGGER, HUSBAND AND WIFE; WILLIAM D. IRWIN AND LOIS J. IRWIN, HUSBAND AND WIFE



No. 337 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Mercer County, Civil Div., at No. 64 E.D. 1977.

COUNSEL

P. Raymond Bartholomew, Sharon, for appellant.

Anthony Perfilio, Sharon, for appellee.

James Stranahan, III, Mercer, for participating parties.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Van Der Voort

[ 282 Pa. Super. Page 338]

On December 18, 1970, William D. Irwin (recently divorced from his wife Joan) signed an agreement with Edward and Rita Rose, whereby Irwin was to purchase from Mr. and Mrs. Rose a farm located in Jackson Township. The agreement specified "Wm. D. Irwin, trustee" as the buyer, and was signed by "Wm. D. Irwin, trustee." Irwin was to pay a total of twelve thousand dollars by January 31, 1971, and the balance of twenty-three thousand (plus interest at the rate of six and one-half percent) in monthly payments of two hundred twenty-five dollars per months. The Roses were to continue residing on the premises for six months, paying one hundred dollars per month rent. The property was subject to a mortgage in favor of First Federal Savings and Loan Association of Mercer County, and Irwin began making the mortgage payments to First Federal. The agreement of sale was not recorded. A deed from the Roses was not executed until April 22, 1977, and was not recorded until June 13, 1977.

On January 31, 1971, Irwin executed a handwritten "Declaration of Trust" in which he referred to the agreement of sale and to the farm in question and stated:

NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that I, WILLIAM D. IRWIN, of the City of

[ 282 Pa. Super. Page 339]

Sharon, County of Mercer & State of Pa. hereby make known, admit & declare that the said premises were so conveyed to me, subject to the mtge. existing thereon at the time of sd. conveyance, & that I now hold & will continue to hold the same IN TRUST only for the use & benefit of the said Mark Wm. Irwin, Charles Michael Irwin & Jon Robert Irwin, their heirs, executors, administrators & assigns & that I have no beneficial interest therein except such as may arise by legal & equitable implication; and I do for myself, my heirs, executors & administrators, covenant & agree to & with the said Mark Wm. Irwin, Charles Michael Irwin & Jon Robert Irwin, their heirs, executors, administrators & assigns, that I & my heirs, executors or administrators should & will convey the said premises by good & sufficient deed to the said Mark Wm. Irwin, Charles Michael Irwin, & Jon Robert Irwin, their heirs, executors, administrators & assigns or as he or they may direct & require, whenever requested by them so to do after obtaining their majority, subject only to such encumbrances as may now or then be charged against said property.

AND I DO FURTHER, for myself, my heirs, executors, administrators, covenant & agree to & with the said Mark Wm. Irwin, Charles Michael Irwin & Jon Robert Irwin, their heirs, executors, administrators & assigns, that I or my heirs, executors or administrator shall not do or knowingly suffer or permit any act, deed, matter or thing whereby the said premises can, shall or may be in any wise impaired, injured or further encumbered in title, charge, estate or otherwise howsover [sic].

In 1972, William Irwin (now remarried) and his wife Lois, along with James F. and Sonia A. Zagger, became individual guarantors of a corporate mortgage with First Federal Savings and Loan Association of Erie on property located in Pymatuning Township. The corporation, Great Northern Development Corporation, defaulted on the loan, and First Federal ...


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