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Jacob Pontz v. Frew Douglas Crawford, with notice to Conestoga Motor Truck Co., terre tenant (No. 1).

Conestoga Motor Truck Company of all rents that he had collected and all income received from the said property, together with all interest and payments of principal that he had received on the said mortgage between the date of that agreement and July 1, 1919, and he also agreed to settle and adjust a matter with the Pennsylvania Railroad Company which was then in dispute.

On July 11, 1919, another agreement was entered into between these parties, by which Jacob Pontz, in consideration of the sum of $1,000, on account of the said mortgage, agreed with the Conestoga Motor Truck Company that he would demand no further payments on the said mortgage until October 1, 1919, and would refrain from bringing foreclosure or any proceedings on the mortgage or the bond accompanying the same until that date, and that, on the said date, the Conestoga Motor Truck Company should not be bound to pay the whole amount of the said mortgage to the party of the first part, but only a portion of the principal, together with the interest that remained unpaid; that Jacob Pontz would render an itemized statement to the Conestoga Motor Truck Company of all rents that he had collected, and all income received, form the said property, together with all interest and payments of principal that he had received on the said mortgage between the date of that agreement and October 1, 1919.

On November 7, 1919, a writ of scire facias was issued on the said mortgage of $22,700, in which Frew Douglas Crawford was named as the defendant and mortgagor, with notice to the Conestoga Motor Truck Company as terre tenant. This writ was served "on the Conestoga Motor Truck Company, within named terre tenant, by handing a true and attested copy thereof to Isaac C. Hartman, president of the Conestoga Motor Truck Company. Nihil Habet as to Frew Douglas Crawford, within named mortgagor."

On December 17, 1919, an alias scire facias was issued against the same parties, which was returned "Nihil Habet as to Frew Douglas Crawford, within named mortgagor. For service on Conestoga Motor Truck Company (a corporation), terre tenant, see writ November Term, 1919, No. 60."

John A. Coyle, Esq., appeared on the record for the defendants, and on January 29, 1920, judgment was entered for the plaintiff for $15,343.05. On February 2, 1920, a levari facias was issued on this judgment, which was set forth as $16,003.05.

On November 26, 1919, F. W. Ployd was appointed receiver of the Conestoga Motor Truck Company by the District Court of the United States for the Eastern District of Pennsylvania. A petition was pre

sented to that Court by the receiver to stay the writ of levari facias, which was refused, and on April 17, 1920, the receiver presented his petition to this Court, in which he alleged, first, that he had no notice of this judgment; second, that part of the mortgage had been transferred to Christian G. Engle; and third, that sundry payments had been made on account of the mortgage.

Jacob Pontz v. Frew Douglas Crawford, with notice to Conestoga Motor Truck Co., terre tenant (No. 1).

Incidentally, it was asserted that Isaac C. Hartman was not the president of the Conestoga Motor Truck Company. This objection need give us no concern. It has always been the law that a good return of service is conclusive on the defendant. If it be false, the Sheriff is responsible. If it is defective, it is cured by the subsequent appearance of the defendant and the filing of an affidavit of defense. The Sheriff's return cannot be contradicted by either party in the action in which it was made. See McGeorge v. Harrison Chemical Mfg. Co., 141 Pa. 575; Diller v. Roberts, 13 S. & R., 60; Mentz v. Hamman, 5 Wh. 150; Flick v. Troxell, 7 W. & S. 65; Sample v. Coulson, 9 W. & S. 62. In Ben Franklin Coal Co. v. Pennsylvania Water Co., 25 Sup. 628, the Court said: "We know of no decision of our Supreme Court authorizing or permitting a complete, legal and valid Sheriff's return of service to be inquired into and set aside on extraneous evidence."

Nor do we think that it is of any importance that the receiver did not have notice of the judgment, conceding, for the purpose of this argument, that that fact has been fairly established. In Galey v. Guffey, 248 Pa. 523, it was held that, "where a mortgage on real estate provided that in the event of default, scire facias might issue on the mortgage and be prosecuted to judgment and execution for the collection of principal, interest, fees, cost and expenses, and after the execution of such mortgage the Court appointed a receiver for the mortgagor's estate and enjoined secured creditors from proceeding on their securities, it was error for the Court to refuse an application by certain mortgagees for leave to collect their debt from the mortgaged estate in the hands of the receiver in accordance with the terms of their contract." In The Real Estate Title Insurance and Trust Company v. The Mahoning Rolling Mill Company, 6 Dist. Rep. 409, Arnold, J., delivering the opinion of the Court, said: "There is a great difference between the legal status of property in the hands of the Sheriff under an execution and property in the hands of a receiver who has been authorized to carry on a business with the property. Property taken in execution must be sold by the Sheriff and not used in carrying on the business of the defendant. While in the hands of the Sheriff, it cannot be taken out of his custody on another execution, although other executions may be levied upon the property and take part in the distribution of the proceeds of the sale of it. But the diligence must be used in making the sale. If any unlawful delay is made by the Sheriff, he will be postponed to other executions. So is it in the case of a receivership. Property in the hands of a receiver for the purposes of sale will be treated the same as if it were in the hands of the Sheriff. If the receiver is proceeding with proper diligence to sell the property, his possession will not be disturbed by any other Court. If, however, he is carrying on business with the property, he cannot delay other creditors who have a right to sue for and collect their claims against it. There is no exclusive jurisdiction over the defendant in any one Court. Any Court may entertain suit, give judgment and issue execution against the prop

Jacob Pontz v. Frew Douglas Crawford, with notice to Conestoga Motor Truck Co., terre tenant (No. 1).

erty of the defendant. If a receiver sells it, claimants of the fund will be remitted to the Court which appointed the receiver, and their priorities of payment will be adjusted according to the rank of their securities, whether by mortgage, execution or otherwise. A receiver with power to carry on a business is no obstacle to a suit on a first or other prior mortgage which is in default. In this case there had been a default for three years in the payment of interest on the first mortgage. The receiver was appointed on the application of stockholders and creditors subsequent to the mortgage. If the plea of a receivership is a good defence to a suit by the first mortgage bondholders now, it may be good forever, and thus there will be both a delay and a denial of justice. This cannot be." See, also, Donley v. Semans, 26 Dist. Rep. 235.

The objection that $1,000 of the mortgage was transferred to Christian G. Engle is also of no avail. The plaintiff had a right to issue a scire facias on the mortgage. It stood in his name, and it is proper to enter judgment for the whole amount due thereon. If any part stands to the use of a third party, the judgment to that extent is controllable by the Court. This practice was followed and sanctioned by the Supreme Court in Schaeffer v. Schaeffer, 182 Pa. 598. There, the mortgage was given to secure five bonds, which were payable to the five children of Emanuel Schaeffer, deceased. The judgment was taken for the total sum, with interest, and then marked to the use of the respective bondholders. If, then, $1,000 of the above mortgage has been transferred to Christian G. Engle, we will direct so much of the judgment to be marked to his use.

But one other question then remains. The petitioner alleges that the plaintiff failed to deduct in his affidavit of amount due the sum of $30.00 paid for surveying, and the sum of $70.00 for expenses on July 21, 1917, which it was understood and agreed should be deducted; that the plaintiff received the rent of six houses since April 1, 1918, and that the defendant was, therefore, entitled to a further credit of $7.00 a month for eighteen months; that Jacob Pontz was to pay the interest on the eight mortgages charged in the deed up to April 1, 1918, and that he failed to pay the interest on the mortgage given by Emanuel Rittenhouse to Henry S. Rich, trustee, for $750.00, and the defendant paid $47.50 on that account; that the mortgage given by Susan Anna Keller and Jonas Keller to Annie M. Herr, for $500.00, and the mortgage given by John A. Snyder to Laura A. Herr, for $450.00, were transferred to Emma E. Ployd, and no interest was ever paid on the same. In the statement attached to the petition, the first two items of $30.00 and $70.00 are credited and deducted (see July 21, 1917). The other items aggregate $230.50. They were matters of defence, which could have been made before the judgment was entered, and we think it is too late now to raise this issue. Of course, if it was made perfectly plain that a mistake had been made, we would correct it by reducing the judgment to the true amount; but to open the judgment and thus delay the plaintiff in collecting his debt does not appeal to a Court of

Jacob Pontz v. Frew Douglas Crawford, with notice to Conestoga Motor Truck Co., terre tenant (No. 1).

Justice, especially when there has been an appearance and ample opportunity has been given to make a defense.

For the reasons thus stated, we are of the opinion that there is no merit in the petitioner's case, and we, therefore, have concluded to discharge this rule.

Rule discharged.

Court of Common Pleas of Lancaster County

Jacob Pontz v. Frew Douglas Crawford, with notice to Conestoga Motor Truck Co., terre tenant (No. 2).

Real estate agent-Commissions-Agent representing both parties.

A real estate agent representing a vendor who accepts by agreement with the vendor a transfer of part of a purchase money mortgage as payment of his commissions, cannot be denied participation in the proceeds of such mortgage on the ground that he was agent of both parties, where the only connection shown between him and the vendee was that subsequent to the sale he became a director in the vendee company.

Exceptions to report of auditor. January Term, 1920, No. 46.

B. F. Davis, for exceptions.

F. Lyman Windolph, for claimant.

The report of Bernard J. Myers, Auditor, after reciting the facts, continues as follows:

In Rice v. Davis, 136 Pa. 439, and a long line of cases in Pennsylvania (the law being so well settled that it is unnecessary to cite them), it is said: "It is a rule of public policy that an agent for the sale of property cannot at the same time act as the agent for the purchase thereof, or interest himself therein, and thus become entitled to compensation from both vendor and purchaser."

In the opinion of your Auditor, however, this case does not come within that rule. Mr. Engle was the agent for the vendor, there is no testimony to show that he was the agent for the vendee, even though it was the Conestoga Motor Truck Company, and no testimony that he was entitled to or received any compensation from the Conestoga Motor Truck Company.

"Where the agent acts with the consent of both parties, he may recover commissions from either party."

2 Corpus Juris 74; 197 Pa. 254.

Jacob Pontz v. Frew Douglas Crawford, with notice to Conestoga Motor Truck Co., terre tenant (No. 2).

Valley Glass Company v. American Central Insurance Company, 197 Pa. 254.

Patterson v. Van Moon, 186 Pa. 367.

Lawall v. Groman, 180 Pa. 532.

In Valley Glass Company v. American Central Insurance Company, 197 Pa. 257, the Supreme Court said:

It is contended that if the agreement was made as claimed by the agent, the defendant company is not bound by it, as it is in violation of a well-settled rule of public policy. This is not the case, however, when the party objecting to it has ratified it. *** Where each of the principals consents or has notice that the agent acts in a dual capacity, this disability will be waived. ***”

"After the transaction for which the agent was employed has been closed, however, and the agency has terminated, the agent does not forfeit his right to compensation from his principal by representing the adverse party or by accepting compensation from him."

No. 2 Corpus Juris, 765.

This transaction was closed on July 23, 1917, and Pontz then settled the compensation due Engle by giving him the transfer of the mortgage.

C. G. Engle was the agent of Jacob Pontz for the sale of certain real estate. The parties had entered into a valid contract for the payment of Engle's compensation, and Engle is therefore entitled to receive the same. C. G. Engle was not the agent for the purchaser of the property, received no compensation from the purchaser for his services, did not conceal from Jacob Pontz the real purchaser, and is therefore entitled to his compensation under the contract between him and Mr. Pontz. The transfer from Jacob Pontz to C. G. Engle of One Thousand Dollars ($1,000) of the mortgage from Frew Douglas Crawford to Jacob Pontz was a valid legal instrument, under seal, no fraud is attached thereto, and Mr. Engle is therefore entitled to the amount set forth therein. C. G. Engle is entitled to the sum of One Thousand Dollars ($1,000) with interest thereon from July 23, 1917, less Fifty Dollars ($50.00) paid him on account of interest by Mr. Pontz.

Your Auditor therefore distributes the sum of Four Thousand Dollars ($4,000) in the hands of the Sheriff, as follows: *****

July 25, 1921. Opinion by LANDIS, P. J.

On July 17, 1917, Jacob Pontz, in consideration of the sum of one dollar, conveyed to Frew Douglas Crawford a messuage or tract of land containing 16.78 acres, situated in Manheim Township, this county. At the same time, Crawford executed and delivered a mortgage upon the same for $22,700 to Jacob Pontz, and, subject to this mortgage, Crawford transferred the property to the Conestoga Motor Truck Company. On the same day, Jacob Pontz transferred $1,000 of this mortgage to Christian G. Engle, and agreed that this amount should first be

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