Integrity Title Insurance, Trust & Safe Deposit Co. v. Rau , 153 Pa. 488 ( 1893 )

Opinion bt

Mr. Justice Mitchell,

There is nothing on the record to justify striking off this judgment. The bond, in its first paragraph, is absolute for the payment of forty-eight hundred d ollars forthwith. Then follows the condition, that whereas certain notes are held by plaintiff, payable as set forth, now the condition is that if said notes are paid as they become due, then the obligation of the bond is to be void, with a further condition that upon default in the payment of any one of the notes all the others shall become immediately due and payable. These are the entire conditions of the bond, and it is accompanied by a warrant of attorney to confess judgment, in any appropriate form of action upon said obligation, “as of any term or time past, present, or any other subsequent term or time.” There is no condition, limitation, or restriction of any kind either as to the time of the judgment to be entered, or its amount, within the penal sum of the bond. If default should take place in the payment of the last note judgment might be entered for the whole forty-eight hundred dollars, although only one hundred would be due. So judgment might be entered at once before any of the notes was due. The bond is, in terms, for immediate payment, though its subsequent provisions show that it is only to be collected upon a default on the notes; and the authority to confess judgment is immediate, though execution cannot issue until default. The condition that in case of nonpayment of any one of the notes all those remaining unpaid shall become immediately due and payable, is not, as appellee argues, a restriction on the right of the obligee to enter judgment, but a stipulation in his favor, by which his right to issue execution on the whole is advanced and matured upon a default of payment of any of the parts.

The difficulty in the view of the appellee, and apparently of the learned court below, is in failing to distinguish between the present right of the plaintiff to his judgment as security for a debt payable in the future, and the right to execution or satisfaction on a debt presently due. As security, the creditor has a right to as large collateral, and as many different forms of it, as the parties chose to contract for. That is a matter with which the court cannot interfere. But the enforcement of satisfaction, by execution or otherwise, is a matter to be governed by the rights and equities of the parties, and comes within the jurisdiction of the court. In the present case the creditor did nothing more than enter up his judgment on the bond, as part of the security agreed on. In so doing he was within his strict legal rights, and the court had no authority to interfere with his action.

This conclusion is so obvious as the result of elementary principles that it is not worth while to cite authorities, but by way of illustration we may refer to Volkenand v. Drum, 143 Pa. 525, where judgment was entered by warrant of attorney a year and a half before the date of the note, the latter having been postdated. It was held error to strike off the judgment, our brother Stebrett saying, “ it must be presumed that the note was executed and delivered to plaintiff as evidence of an existing debt payable on a day certain in the then future, .... and that the warrant of attorney was incorporated therein as a future measure of security. . . . There is nothing on the face of the paper to indicate that the warrant was intended to be available only at a future time or in the event of a default. On the contrary the language employed shows-that it-was intended to become operative at the pleasure of the payee immediately on delivery. The error into which the learned judge fell was in assuming that it was inoperative prior to the date found on the note.”

The order is reversed and the judgment thereby stricken off is reinstated.