Trustees of C. I. Mortgage Group v. Stagg of Huntington, Inc.

WATKINS, President Judge:

This case comes to us on appeal from an Order of the Court of Common Pleas of Huntingdon County, Civil Court Division, which granted exceptions filed by a subcontractor to a sheriff’s Statement of Distribution following a sheriff’s sale.

Appellant, Trustees of C. I. Mortgage Group, was the mortgagee of a piece of real estate upon which a shopping center was to be built in Smithfield Township in Huntingdon County. Appellant had obtained a mortgage foreclosure on the above real estate and had purchased the property at the sheriff’s sale when its loan became subject to default. Stagg of Huntington, Inc., (Stagg) was the defendant in the mortgage foreclosure action. D. C. Goodman & Sons, Inc., (Goodman) was a subcontractor who had performed work on a portion of the shopping center for which it had not been paid and which formed the basis of its mechanic’s lien.

On September 1, 1971 Stagg acquired title to the premises which was the subject of the mortgage foreclosure. On September 24, 1971 a mortgage in favor of appellant was recorded covering the subject property. The mortgage was an advance-money mortgage providing for advancements to be made as the buildings in the shopping center progressed, to the extent of $1,600,000.

On September 24, 1971 a stipulation against mechanic’s lien was filed of record in the Prothonotary’s Office of Huntingdon County with Stagg of Huntington, Inc., (Stagg) as the owner and Stagg Contracting Company as the contractor. On December 30, 1971 Stagg executed a deed, recorded on March 6,1972, which conveyed the real estate to Huntingdon Associates. On December 17, 1973 a mechanic’s lien was filed by Goodman covering work performed on a *339portion of the shopping center from January 2, 1973 to September 20,1973. The amount of the lien was $36,756.69. After appellant had foreclosed its mortgage on the premises and purchased the premises at the sheriff’s sale for the sum of $1,488,000, Goodman filed exceptions to the Schedule of Distribution which had provided appellant with the total proceeds of the sale. After a hearing, the court below sustained Goodman’s exceptions to the Schedule of Distribution on April 23, 1975. Appellant then took this appeal claiming that the original Schedule of Distribution was correct.

At the outset it should be emphasized that because of the privilege extended by the legislature in the mechanic’s lien law it must be strictly construed. One issue is whether the advance of the last $600,000 by C. I. Mortgage was obligatory under the terms of the mortgage agreement with Stagg. Under the terms of the mortgage agreement the last $600,000 was to be advanced to Stagg upon presentation to the mortgagee of a lease between Stagg and a third party for part of the shopping center. The advance was made by the mortgagee prior to the presentation of any such lease. Therefore there is an issue as to whether the condition precedent to the last advance was met. If not, this would render the last $600,000 nonobligatory.

Additionally there is the fact that on December 30, 1971 Stagg conveyed the real estate which was subject to the mortgage to another party (Huntingdon Associates). This conveyance was made without the written permission of C. I. Mortgage and thus was in direct violation of paragraph 11 of the building loan agreement made between C. I. Mortgage and Stagg. Therefore the last advance made by C. I. Mortgage was also nonobligatory since Stagg had violated the building loan agreement by transferring the real estate in violation of the agreement. Advances made pursuant to an advance-money mortgage take lien precedence over a mechanic’s lien if the mechanic’s lien is filed subsequent to the time the mortgage is recorded when the mortgagee is obligated to make the advances. If, however, the mortgagee makes advances it is not obligated to make *340after notice of a mechanic’s lien, the lien of such advances dates only from the time they were made and not from the time of the recording of the original mortgage. It is only when the advance-money mortgagee is contractually obligated to make advances that its lien relates back to the date of the mortgage. Housing Mortgage Corporation v. Allied Construction, Inc., 374 Pa. 312, 97 A.2d 802 (1953). Since the Trustees of C. I. Mortgage Group had notice of Goodman’s claim via a letter dated October 29, 1973 by Goodman informing the C. I. Mortgage of its claim and because C. I. Mortgage was not obligated to make the additional advances of $600,000 for the reason set forth above we hold that the subcontractor’s mechanic’s lien takes precedence over the nonobligatory advance of the last $600,000 from appellant to Stagg. A search of the applicable public records by the subcontractor would have revealed the agreement, including the provision that any sale of the realty involved must have been approved by C. I. Mortgage. It would also have revealed the absence of such a written agreement. Thus the subcontractor was justified in believing that any additional advances would be nonobligatory and therefore subordinate to a mechanic’s lien especially where, as in the instant case, the original stipulation against liens did not include a plan for a food market which was added to the stipulation some 8 months after the subcontractor began its work. In Felin v. Locust Realty Co., 232 Pa. 123, 81 A. 158 (1911), the court held that a stipulation against liens bound the subcontractor even though the realty had been sold after the original stipulation was filed because a search of the public records would have revealed the stipulation recorded against the contractor. In our case the search would have revealed the written agreement and the absence of C. I. Mortgage’s written permission for the sale. Therefore, the situations are dissimilar.

Affirmed.

PRICE, J., concurs in the result. SPAETH, J., files a dissenting opinion in which JACOBS and HOFFMAN, JJ., join.