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INSILCO CORPORATION v. JOEL T. RAYBURN AND JUDY A. RAYBURN (05/16/88)

filed: May 16, 1988.

INSILCO CORPORATION, A CORPORATION
v.
JOEL T. RAYBURN AND JUDY A. RAYBURN, HIS WIFE, APPELLANTS. INSILCO CORPORATION, A CORPORATION, APPELLANT, V. JOEL T. RAYBURN AND JUDY A. RAYBURN, HIS WIFE



Appeal from the Judgment entered February 17, 1987, in the Court of Common Pleas, Civil Division, of Lawrence County, Civil No. 120 of 1982 C.A. Appeal from the Order of May 29, 1987 in the Court of Common Pleas, Civil Division, of Lawrence County, Civil No. 120 of 1982, C.A.; 159 of 1987 DSB; and 36 of 1987, E.D.

COUNSEL

Frank J. Piatek, New Castle, for appellants (at 402) and for appellees (at 797).

James E. Kerr, Butler, for appellant (at 797) and for appellee (at 402).

Rowley, Del Sole and Montgomery, JJ.

Author: Rowley

[ 374 Pa. Super. Page 364]

These are consolidated appeals from a summary judgment in mortgage foreclosure and from an order granting two stays of execution on the mortgage foreclosure judgment pending resolution of the appeal from the summary judgment in mortgage foreclosure. We quash the appeal from the summary judgment filed at No. 402 Pittsburgh 1987, and we affirm the order granting the stays of execution appealed at No. 797 Pittsburgh 1987.

[ 374 Pa. Super. Page 365]

On January 9, 1974, Joel and Judy Rayburn (Rayburns) executed an agreement with Miles Homes of Pennsylvania, Inc., the predecessor corporation of Insilco Corporation, the plaintiff herein. (Hereafter, Miles Homes and Insilco shall be referred to simply as "Insilco.") The agreement provided that Insilco would provide the Rayburns with specified materials for building a house for the sum of $12,901.00. It was agreed that the Rayburns would deliver to Insilco a mortgage note which would be secured by an open-ended mortgage upon the Rayburns' "real estate or interest thereon, including that property upon which [the Rayburns] agree[d] to erect" the house.

On June 27, 1975, the Rayburns entered into a land installment sales agreement with Judy Rayburn's mother, Ruth Whipkey (Whipkey), to purchase from Whipkey a certain parcel of land upon which the Rayburns planned to build the house the material for which the Rayburns had previously agreed to purchase from Insilco.

In early to mid September, 1975, at the request of Insilco, Whipkey signed a document stating that she would notify Insilco before taking any legal action to enforce her rights under the land installment sales agreement.

On September 23, 1975, the Rayburns executed a mortgage to Insilco. The mortgage recited that the Rayburns were conveying to Insilco as security for the debt owed to Insilco "all that certain piece, parcel or tract of land" upon which the house was to be built. The mortgage did not recite that the Rayburns were owners in fee of the real estate, nor did it specifically describe the interest which they had in the property. However, the mortgage stated that the Rayburns are "purchasers on an Installment Land Contract dated June 27, 1975, between Ruth E. Whipkey, seller and Joel T. Rayburn and Judy A. Rayburn, husband and wife, buyers, . . . ." Whipkey did not co-sign the mortgage.

In 1982, Insilco commenced a mortgage foreclosure action against the Rayburns and Whipkey because the Rayburns

[ 374 Pa. Super. Page 366]

    were in default of the mortgage debt.*fn1 Separate preliminary objections were filed by both the Rayburns and Whipkey. Before the preliminary objections were disposed of by the court, Whipkey commenced an amicable ejectment action against the Rayburns because they were in default on the land installment sales contract. However, Whipkey did not inform Insilco that she was taking this legal action to enforce her interests under the land installment sales agreement with the Rayburns. As a result of the ejectment action, the Rayburns conveyed their interest in the subject real estate to Whipkey by quitclaim deed in 1982.*fn2 Since then, Judy Rayburn has continued to reside on the subject real estate, and Insilco has commenced a separate action against Whipkey and the Rayburns in which it demands full payment of the unpaid balance on the mortgage note on theories of implied contract, unjust enrichment and restitution, civil conspiracy, and illegal use of civil process.

Several years after the Rayburns conveyed their interest in the real estate to Whipkey by quitclaim deed, the trial court, in the mortgage foreclosure action, granted the preliminary objections of Whipkey in the nature of a demurrer and she was dismissed from the action. On motion of Insilco, summary judgment against the Rayburns was granted. The Rayburns have appealed from the summary judgment at No. 402 Pittsburgh 1987.

Following the entry of summary judgment, Insilco commenced execution proceedings to foreclose on the property and have the property sold at a sheriff's sale. Both the

[ 374 Pa. Super. Page 367]

Rayburns and Whipkey filed petitions to stay execution: the Rayburns sought a stay pending appeal, and Whipkey sought a stay pending further hearing. The trial court granted both petitions for stay on the condition that the Rayburns obtain a fire insurance policy on the property for 120% of the amount claimed by Insilco, and on the condition that Whipkey not convey any part of, or interest in, the property during the pendency of the appeal. Insilco filed an appeal from the order granting the stays of execution to both the Rayburns ...


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