Epitomized Opinion
This is an appeal from a decree of the Court of Common Pleas in foreclosure proceedings. Stupca and his wife owned a lot upon which there was a $1300 mortgage. Desiring to borrow $1300 more they applied to a savings and loan company for a loan of $2600, out of which the first mortgage of $1300 was to be paid ¡off, and another mortgage given to the loan company for $2600. As the loan was granted, one Marinoff, a friend of the Stupeas, went to the bank for the money. A clerk gave him $2600 without deducting the $1300 for the first mortgage, and without canceling it. Marple, an agent of the bank, purchased the first mortgage and waived its priority to the bank in order to rectify his mistake. He thereupon brought a suit to foreclose his mortgage. A cross-petition was filed by the bank. The lower court held against the Stupeas, but upon appeal the judgment was reversed. The Court of Appeals held:
1.. That the case was one in equity and therefore appealable.
2. As the Stupeas had a right to rely upon the bank that it would protect them as well as itself in paying out this money, the equities are in their favor and they are entitled to protection against the bank and Marple to the extent of $1,300.