
    Jacob Yablonsky vs. Louis Meisel et al.
    Eq. No. 7527
    February 18, 1926
   BAKER, J.

Final hearing.

This is a bill brought to remove a cloud on a title and for other relief incident thereto.

f^he facts show that the complainant and respondents entered into an agreement whereby Mr. Meisel was to advance to the former the sum of $50,000 to be used in the construction of a certain building and as security for this- advance the complainant was to execute a note and mortgage covering said $50,000. The note and mortgage were executed and the mortgage was recorded. The mortgage was an ordinary mortgage for future advances and the agreement executed by the parties shows that the money was to be advanced only on certain conditions. The testimony shows that these conditions were never fulfilled.

The respondents do not seriously contest the prayer of the bill that the complainant is entitled to have the mortgage discharged and the note cancelled in order to remove the cloud on his title, but they do urge that before this is done they are entitled to be recompensed or reimbursed for certain outlays.

The respondents argue that they are entitled to interest on the sum of $43,000, which was the actual sum to be turned over to the complainant, because of the fact that the respondent Grant testified that for a period of about six months he had this money available so that it could be used to make advances to the' complainant as called for.

After considering the matter carefully the Court is of the opinion that the respondents are not entited to be allowed interest on this sum. In any mortgage covering future advances the parties anticipate that the mortgagee will be called upon from time to time to make such advances. It is not clear from the evidence" whether the respondent Grant had on hand' this entire sum, or only a portion of it, or whether such sum was on call or in a participation account. Further, it is entirely a matter of speculation as to what other use he would have been able to make of this money, assuming he had xt available for the purpose of the mortgage in question. In the judgment of the Court, the matter is too vague and uncertain in this connection for the Court to find that the complainant should be compelled to pay to the respondents interest on this entire sum before he is entitled to have the mortgage discharged.

The respondents also claim that if they are not entitled to interest, at least they should be allowed something for the time and effort expended in connection with this matter. This is obviously a claim for services somewhat in the nature of a claim under the common counts in an action at law. There is no clear evidence in the case as to the time spent by the respondent Grant in this matter, or the value of the work he did. It does not seem to the Court that in this bill in equity it can or should in any way, from the testimony presented, imply or allow any such claim as the respondents are contending for.

.It does appear from the testimony that the respondent Grant, who is the real party in interest in this proceeding, did advance to the camplain-ant the'sum of $400. The latter contends that this was an entirely separate transaction and was advanced on the security of certain notes of a third person which later went to protest. The respondent Grant, however, testifies that this money was advanced on the security of the. .mortgage., and was used by the. complainant in paying labor in connection with the erection of the building in question. He denies that the money was paid ■on security of the notes. .It would appear to the Court that his. testimony is the more reasonable. It seems hardly likely that an experienced business man, having a mort-.gag’e for future advances, would loan to the complainant a sum of money on the strength of the unsecured notes of persons entirely, unknown to him. In the opinion .of the Court the ■weight of the. testimony shows that the sum of $400 was.. a legitimate advance on the prortgage in question. 'This being so, before said mortgage is discharged, the complainant should refund to the respondent Grant the said sum. of $400, together with interest at the rate of 8%, as set out in the mortgage, from the date of the mortgage. The Court also finds that 'the. respondent Grant is entitled, according to the terms of the mortgage, to a bonus of 10% on said $400 advanced, namely, $40.

, (For . Complainant: Joseph C. Cauley and John J. Cosgrove. ,

For Respondents: Philip C. íoslin.

The court is further of the opinion that on the law and the evidence the respondent Grant is not entitled no any further bonus or service charge.

It also appears in evidence that in arranging for the mortgage it was necessary to have the title examined and that the charges for so doing amounted to $259.20. This sum has never been paid and, while it is ■charged primarily to the complainant, nevertheless the respondent •Grant as mortgagee is secondarily liable to the company performing the services.

In the opinion of the Court, therefore, before said mortgage is discharged the complainant should pay said bill incurred in connection with ■obtaining said mortgage.

The prayer of the bill is granted, therefore, on condition that the complainant make the payments above indicated.  