Tesauro v. Calitri

3 Citing cases

  1. McMillen Feed Mills, Inc. of S.C. v. Mayer

    220 S.E.2d 221 (S.C. 1975)   Cited 12 times
    Stating same principle

    Messrs. Marshall B. Williams, of Orangeburg, andDrawdy Nicholson, of Columbia, for Appellants, cite: Asto the Trial Court's being in error in holding that Coastalhad no knowledge, actual or constructive, of the interveningmortgage of McMillen after the taking and recording ofCoastal's mortgages in February, 1961: 239 S.C. 109, 121 S.E.2d 427; 237 S.C. 532, 118 S.E.2d 171. As tothe Trial Court's being in error in holding that advancesmade in reliance on an open end mortgage of real estate tookpriority over an intervening lien of which the holder of theopen end mortgage had both actual and constructive notice: 251 S.C. 353, 162 S.E.2d 541; Sections 45-55 and 45-257 of the 1962 Code of Laws of South Carolina; 36 S.C. 331, 15 S.E. 382; 122 S.C. 171, 115 S.E. 236; 52 S.C. 421, 29 S.E. 663; 153 Pa. Super. 156, 33 A.2d 36; 59 C.J.S. Mortgages § 250 at p. 320; 59 C.J.S. Mortgages § 453 at p. 711. Messrs. Smoak and Smoak, of Walterboro, for Respondent, cite: As to the Trial Court's properly holding thatCoastal had no knowledge, actual or constructive: Sections 45-55 of the 1952 Code of Laws of South Carolina, as amended in 1962 (No. 746, Acts and Joint Resolutions, 1960, page 1731); 251 S.C. 242, 161 S.E.2d 822; 254 S.C. 66, 173 S.E.2d 376; 188 S.C. 187, 198 S.E.2d 392; 122 S.C. 171, 115 S.E. 236; 17 S.C. 409; 20 S.C. 23; 18 S.C. 157; 36 S.C. 331, 15 S.E. 382; annotation, 138 A.L.R. 566; 59 C.J.S., Mortgages, Section 258, page 325; 36 Am. Jur., Mortgages, Section 235, p. 809; 59 C.J. S., Mortgages, Section 230, page 297; 21 S.C.L.R. 646; 188 S.C. 187, 198 S.E.2d 392. As to the advances madein reliance upon the open end mortgage, taking priority: Sections 45-55 of the 1962 Code; 59 C.J.S., Mortgages, Section 252, p. 321; 260 S.C. 61, 194 S.E.2d 197; 250 S.C. 264, 157 S.E.2d 249; 231 S.C. 154, 97 S.E.2d 51

  2. Shuster v. Barkus et ux

    190 A.2d 466 (Pa. Super. Ct. 1963)

    The rationale of the opinion of the court below is that McAllister was the attorney for the Barkuses and that he was paying their money to Mathewson and that the bank judgment was thereby extinguished. There can be no question but that the holder of a junior lien already of record may take advantage of the partial or total payment of a prior lien: Thompson v.Sankey, 175 Pa. 594, 34 A. 1104; Fair and Square B. L. v.Pres. Board of Publication, 302 Pa. 162, 153 A. 341; Tesauro v.Calitri, 153 Pa. Super. 156, 33 A.2d 36. Mr. Justice PAXSON said in Loverin, Hall Co. v. HumboldtSafe Deposit Trust Co., 113 Pa. 6, 4 A. 191 (quoted with approval in Weir v. Potter T. M. Guarantee Co., 323 Pa. 212, 185 A. 630): "Though actual payment discharges a judgment or other encumbrance at law, it does not discharge it in equity if there are interests which require it to be kept alive for their protection. . . . When the mortgagors procured the payment of the first mortgage with what was admittedly their own money, it extinguished that mortgage at law and in equity as between it and the second mortgage, and the latter took its place.

  3. Farmers Nat. Bank v. Kern

    168 A.2d 620 (Pa. Super. Ct. 1961)   Cited 3 times

    There can be no question that the holder of a junior lien already of record may take advantage of the partial or total payment of a prior lien. See Tesauro v.Calitri, 153 Pa. Super. 156, 33 A.2d 36. On the other hand, although a judgment has been paid in part or even in full, the parties may lawfully agree that it shall not be satisfied of record but shall remain as collateral for a new loan made or to be made, and judgment creditors whose liens accrue subsequently cannot object: Merchants Nat. Bank v.Mosser, 161 Pa. 469, 29 A. 1. The following statement in the case last cited clearly rules the present appeal (italics supplied): ". . . The subsequent judgment creditors against whom an agreement of this kind will not operate are those whose lienswere in existence at the time, and who would be prejudiced thereby.