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HERR ABSTRACT COMPANY v. JAMES A. VANCE (12/05/80)

filed: December 5, 1980.

HERR ABSTRACT COMPANY, APPELLANT,
v.
JAMES A. VANCE, III, CYNTHIA A. VANCE, AND LOCK HAVEN SAVINGS AND LOAN ASSOCIATION



No. 2773 October Term, 1978, Appeal from Order of October 3, 1978 and October 23, 1978, in The Court of Common Pleas of Lancaster County, Pennsylvania. No. 18, Page 284

COUNSEL

Edgar R. Casper, Harrisburg, for appellant.

Sam Mecum, Lancaster, for appellees.

Spaeth, Sugerman and Stranahan, JJ.*fn*

Author: Stranahan

[ 284 Pa. Super. Page 113]

This is a case in equity in which Herr Abstract Company (hereinafter referred to as Herr) seeks to have declared null and void a deed by which certain property in East Petersburg, Pennsylvania, was conveyed to the appellees, James A. Vance, III, and Cynthia A. Vance. The real estate transaction was not an arms length transaction in that Vance worked for Herr as a job foreman. Vance expressed his interest in purchasing the property and negotiations between Herr and Vance took place over a period of time and finally resulted in the execution of a sales agreement about May 26, 1978.

The agreement purported to require the payment of a deposit of $9,900.00, however, this was not paid because the Vances told Herr that the money was in a savings account and they would prefer to wait until settlement before removing the proceeds from that account.

On June 30, 1978, a settlement was held and the settlement sheet reflected the deposit of $9,900.00 together with additional settlement costs of $2,396.08. This was not correct because the Vances again told Herr that they had had no opportunity to get the funds out of their savings account in order to pay the total amount of $12,296.08.

Shortly thereafter, there was contact between the parties and the Vances were told that unless the money was forthcoming

[ 284 Pa. Super. Page 114]

    immediately, Herr would have to cancel the settlement and send the mortgage papers back to Lock Haven Savings and Loan, the mortgagee. On Friday, July 7, 1978, Vance told Herr that he had the funds and that Herr should go ahead and record the papers and he would bring a check over to the office on Saturday, July 8. Based on Vance's repeated representations and assurances that the money was available, Herr recorded the deed and mortgage.

Vance did not appear on July 8 to pay over the funds and although there were attempts made to contact him, it was not until July 11 that Vance announced that he had quit his employment with Herr and that he did not have the funds.

Although Lock Havens Savings and Loan Association is named as a defendant, it has indicated no desire to participate in these proceedings. If Herr is successful in obtaining an order declaring the deed and mortgage null and void, Herr will reimburse Lock Haven Savings and Loan in full.

On July 14, 1978, Herr filed a complaint in equity in the Court of Common Pleas in Lancaster County seeking the following relief: (a) that upon payment of the balance of mortgage proceeds by Herr to Lock Haven Savings and Loan, the deed from Herr Abstract Company to James A. Vance, III, and Cynthia A. Vance, dated June 30, 1978 be declared null and void; (b) that defendants be enjoined from executing any transfer or conveyance to third parties of the real estate in question; (c) that appellees, James A. Vance, III, and Cynthia A. Vance pay over to appellant the amount equal to the cost and ...


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