Commonwealth Title Insurance & Trust Co. v. Ellis , 192 Pa. 321 ( 1899 )

Opinión by

Mr. Justice Green,

We agree entirely with, the learned court below in holding that the mortgage of the plaintiff in this case was a purchase money mortgage, under the evidence, and was entitled to priority in the distribution. The delivery of the deed to the mortgagor and of the mortgage to the mortgagee were concurrent and simultaneous acts, and the money for which the mortgage was given was in actual fact a part of the purchase money paid for the property, at the very time of the delivery of the deed. In both the cases, Cohen’s Appeal, 10 W. N. C. 544, and Albright v. The Association, 102 Pa. 411, this Court held that it was not necessary that the lien should disclose on its face that it is for purchase money if in point of fact, whether it be a mortgage or judgment, it was given for purchase money. We agree with the auditor in holding that the positive prohibition contained in the tenth clause of the building contract against the filing of any liens by any subcontractors, or any other persons, excluded the claimants who were subcontractors from filing any liens, notwithstanding the provisions contained in the third clause. The learned court below having held otherwise, and reversed the auditor on this subject, subsequently, in the second opinion filed, changed its ruling on account of the decision of this Court in Morris v. Ross, 184 Pa. 241, and sustained the action of the auditor in rejecting the claims of the subcontractors. The decision of the court in the first opinion was based upon the theory that the provisions of the third section of the contract contemplated the filing of liens and their release before payments could be required, and hence sanctioned the filing of liens, and as there was an absolute repugnance between the 3d section and the 10th in tins respect, it could not be held that the right to file liens under the 3d section could be intended to be taken away by the 10th. But in the case last cited we had the precise question before us, and we decided that the positive provision prohibiting all liens must prevail, and that the provision authorizing the owner to require of the contractor sufficient evidence that the premises were free of all liens before payments could be demanded, and to retain an amount sufficient to indemnify him against such liens, was not repugnant to the prohibitory clause, but only a. protection against possible liens which might be filed, without regard to the contract. In the present case the tenth clause of the contract is in the following words: “ It is hereby further agreed that there shall be no liens entered or filed by any subcontractors, or any other persons, for or on account of any work, labor or materials, done or supplied in or upon said building.” That these words are a prohibition against any liens is established by all our decisions from Schroeder v. Galland to this time. The learned court below held that they excluded subcontractors, but, for reasons set forth in the opinion they did not exclude the principal contractor. We are not able to agree to this conclusion. It seems clear to us that the words “ or any other persons ” include all other persons, and necessarily include the principal contractor, as the words are generic and necessarily include all persons who have a right to file liens. Moreover we think it quite, plain that the words of the 3d section are consistent with the theory of a mere protection against possible liens, and are therefore not repugnant to the positive prohibition contained in the tenth clause. All this we held in Morris v. Ross, supra. But if this is so, the principal contractor has no more right to file a hen than any subcontractor. The 10th section is in words that are written, as contradistinguished from the other words of the contract which are printed words in a printed blank, and the 10th section is the last utterance of the contract on this subject, and if there were repugnance between the 3d and 10th sections, the 10th would prevail. In Grandin v. Insurance Co., 107 Pa. 26, in construing a policy of insurance we said: “ This clause of the policy is in writing, and must be taken to be what the parties intended. The condition is the printed portion. The settled rule of law is that where the written and printed portions ai'e repugnant to each other, the printed form must yield to the deliberate written expression.” We are therefore of opinion that the learned court below was in error in awarding any part of the fund to the lien of the contractor.

The decree of the court below is reversed at the cost of the appellee, and the record is remitted with instructions to distribute the fund in accordance with this opinion.