author: Mr. Justice Sharswood

text:
    Montgomery’s Appeal.
    1, Bowen authorized his real estate in Jamaioa to be sold by his executors, who were his wife and Montgomery; he gave her a life-estate in the land or its proceeds, and after her death a life-estate to his sister, the wife of Montgomery, with remainder over. The wife died in 1849, and by her will directed the repayment to the Jamaica estate of “moneys received from the sale of land belonging to the estate, which moneys have been used in the management of the estate.” The money was paid to Montgomery as surviving executor in 1851. He died in 1855, leaving all the estate to his wife; upon its distribution in 1872: Held, that Montgomery had received the money as executor of Bowen, and as proceeds of his real estate, and the remaindermen were entitled to receive it in preference to his wife.
    2. By his will Bowen directed the proceeds of the sale of the land to be invested; Montgomery did not invest, his wife being entitled to it for life : Held, there were no laches in the remaindermen in not claiming sooner than at the distribution, although they had been aware of Montgomery’s breach of trust.
    February 5th 1875.
    Before Agnew, C. J., Sharswood, Williams, Merour, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Philadelphia: Of January Term 1873, No. 91½.
    This appeal was by the executors, &c., of Isabel B. Montgomery, deceased, from that part of the decree reported in the preceding case (Pleasants’ Appeal), which confirmed the report of the auditor awarding to Pleasants any part of the balance in the hands of the administrator, &c., of Austin Montgomery, deceased. That case contains all the material facts of this. The sum awarded to Pleas-ants, as administrator, &c., of John Bowen (Peacock) and George W. Peacock, as stated in the preceding case, was made up as follows:
    The amount paid the decedent under the direction of
    Martha P. Bowen’s will $2497.68 Interest from December 16th 1865 to February 16th
    1872, ten days after the date of the auditor’s report 924.14
    ' $3^1,82
    After exceptions, the Orphans’ Court confirmed the report.
    The appellants assigned thirty errors, which involved the following points :
    1. That the fund did not arise from the sale of the land in Jamaica ordered to be sold, and therefore the decedent was not liable as trustee for the money.
    2. The fund was properly applied to the repair of the Jamaica estate.
    3. The claims were barred by lapse of time.
    4. In any view the sum awarded was too great; the amount paid to the decedent by Mrs. Bowen’s executors, including interest from her death till the death of Isabel B. Montgomery, who as life-tenant of the land in Jamaica, was entitled to the interest of the proceeds during her life.

      Gf. M. Dallas and P. MeOaTl (with whom was J. Sivord), for appellants.
    The estate in Jamaica being wholly unproductive, the decedent as executor had the right to repair for the preservation of the inheritance, it having been damaged by a previous tenant: Caldecott v. Brown, 2 Hare 144; Dunne v. Dunne, 3 Sm. & G. 22; Sharshaw v. Gibbs, 1 Kay 333 ; Dent v. Dent, 30 Beav. 363. As to the bar by lapse of time — the parties acquiesced: Brice v. Stokes, 11 Ves. 326; Pickering v. Stamford, 2 Ves. Jr. 583; Simpson’s Estate, 1 Phila. R. 300. The claimants slept too long on their rights: Hercy v. Dinwoody, 2 Ves. Jr. 89; Smith v. Clay, 3 Brown’s C. C. 639 n.; Gress’s Appeal, 2 Harris 463; Calhoun’s Appeal, 3 Wright 225; Ashhurst’s Appeal, 10 P. F. Smith 316. Public policy requires the discouragement of stale claims : Jones v. Tuberville, 2 Ves. Jr. 14; Ellison v. Moffatt, 1 Johns. Ch. R. 46; Gregory v. Gregory, Cooper 201; Bonny v. Rigard, 1 Cox 145, although claimants may be remaindermen; Andrew v. Wrigley, 4 Brown’s C. C. 125; Harrison v. Hollins, 1 Sim. & Stu. 240; McDonald v. Harding, 7 Sim. 178; Brown v. Cross, 14 Beav. 105; Smilie v. Biffle, 2 Barr 52; Hassler v. Bitting, 4 Wright 68.

      R. MeGfrath (with whom was S. Rood), for appellee,
    as to the effect of the lapse of time cited: Keen’s Appeal, 10 P. F. Smith 504; Harper’s Estate, 1 Brewster 478; Summerville v. Holliday, 1 Watts 507; Foulk v. Brown, 2 Watts 209; Price’s Appeal, 4 P. F. Smith 485 ; Jackson v. Stiles, 4 Johns. R. 490; Barton v. Dickens, 12 Wright 522.
    March 1st 1875.
   Mr. Justice Sharswood

delivered the opinion of the court,

By his last will and testament, dated November 20th 1832, the testator, John Bowen, appointed his wife, Martha P. Bowen, executrix, and his brother-in-law, Austin Montgomery, executor, and authorized and empowered them, and the survivor of them, whenever they, or the survivor of them, at any time before his son should attain the age of twenty-one, should think it expedient so to do, to sell his real and personal estate and property in the island of Jamaica, either at public or private sale, and directed .them, in case of such sale, to invest the proceeds. In the said property, or the proceeds of such sale, he devised and bequeathed to his said wife a life-estate, with remainder to his children; and in the event which happened of their death unmarried, and without issue, before the age of twenty-one, then to his sister, Isabel B. Montgomery, wife of Austin Montgomery, for her own use during her life, and upon her death to his half brothers, Ralph W. Peacock and George S. Peacock, absolutely in fee. He made his wife his residuary legatee. There was no direct evidence of any sale under the provisions of the will, but Mrs. Martha P. Bowen, the executrix named, died July 15th 1849, having first made her last will, in which was the following clause: “ I direct that so much of my 6 per cent, bonds of the city of Cincinnati, as may be necessary for the purpose, be sold, and the proceeds thereof to be applied as a repayment to the Bowen Hall estate, in the island of Jamaica, for certain moneys received from the sale of land belonging to the estate, and which moneys have been used in the management of said estate.” In pursuance of this direction, her executor after-wards paid to Austin Montgomery, surviving executor of John Bowen, $2929.61, of'.which $431.93 ivas afterwards refunded to meet claims against the estate of Mrs. Bowen, leaving the sum of $2497.68, which, with -interest, is the amount awarded below to the appellees, who are the representatives of Ralph W. Peacock and George S. Peacock. Austin Montgomery died in 1855, having first made his last will and testament, by which he devised and bequeathed his whole estate to his wife, Isabel B. Montgomery, and appointed her the executrix. She never filed an inventory, nor settled any account of her husband’s estate. She died in 1865, having left a will, in which the appellants were named as executors. By subsequent proceedings, which it is unnecessary to recite, it Avas found that Mrs. Isabel B. Montgomery had received from her husband’s estate an amount sufficient to meet the claims of the appellees for this and other sums. After a controversy in regard to the will of Mrs. Montgomery was finally decided, letters testamentary were issued to the appellants, July 17th 1866. They filed their account April 21st 1868, Avhich Avas referred to an auditor, before Avhom the appellees appeared by counsel, and made claim to the sum now in controversy. This is a succinct statement of the facts so far as material to the question involved in this appeal.

It is very clear that the amount received by Austin Montgomery, under the provision of the will of Mrs. Bowen, before referred to, Avas received by him in his character as surviving executor of John BoAven, and Avas held by him in trust for the purposes of his will. It did not lie in his mouth to say that it was not the proceeds of a laAvful sale by the executors. Even if this had been the fact, it Avould not have altered the case. He received it as bequeathed by the will, “ as a repayment to the Bowen Hall estate, in the island of Jamaica, for certain moneys received for the sale of land belonging to the estate.” He took it, therefore, upon that footing — impressed with the trust — however, in truth, the money may have come to the hands of the testatrix. Nor can it be pretended that Mrs. Bowen, as life-tenant, had any right to use such proceeds in the management of the estate. She honestly recognised that they had been misapplied by her, and therefore directed them to be repaid to the estate.

It only remains then to inquire whether the appellees have been guilty of such laches as should preclude them in a court of equity from now advancing this claim.

Mrs. Isabel B. Montgomery was the life-tenant of the fund under the will of John Bowen, and the appellees, as remainder-men during her life, had no right to any part of it. Concede that they knew, or might have known, that there had been a breach of trust in Austin Montgomery in not investing it as directed by the will, Mrs. Montgomery was entitled to the interest for life; and supposing the principal to have been paid, or given to her by her husband, all that they could have done was to demand an inventory and security. If they were satisfied, either with Austin Montgomery or Mrs. Montgomery, as fully able to respond in their estate when the time should arrive, they had a perfect right to remain quiescent. They needed no further security. They made their claim as soon as they could do so with effect. We see no laches whatever wrhich ought to bar them.

There is undoubtedly an error in the decree in not deducting from the amount the interest on $2639.32, from the date of Mrs. Bowen’s death, July 15th 1849, to the date of its payment, May 21st 1851, to which Isabel B. Montgomery, as life-tenant, was of course entitled. For this error the decree must be reversed and the record be remitted, in order that the final award of distribution may be corrected accordingly.

Decree reversed and record remitted, that the award of distribution may be corrected according to this opinion. Each party to pay their own costs of this appeal.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Pepper’s Appeal.
    1. Under Act of April 9th 1849, sect. 14, recording the assignment of a mortgage is notice to a subsequent assignee.

      2. Where recording an instrument under the Acts of Assembly is discretionary, and the instrument is recorded, all the incidents and force of a public record attach to the record.
    3. A mortgage was assigned by an attorney in fact of the mortgagee; the assignment was recorded; the assignee permitted the papers to remain with the attorney, who afterwards assigned the mortgage to another who had no actual notice of the prior assignment. Held, that the first assignee was entitled to the proceeds of the mortgage.
    February 5th 1875.
    Before Asnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.

      Appeal from the District Court of Philadelphia: Of January Term 1873, No. 199.
    This case arose under the following facts:
    On the 16th of February 1869, Mary J. Pennypacker executed a bond and mortgage to David F. Schuler for $2000.
    On the 27th of the same month, Schuler executed a power of attorney to Raimond D. Fox, to sell, assign, &c., all his real and personal property, &c.; by virtue of this power of attorney, Fox assigned the mortgage to Carroll Neide, on the 28th of May 1869. The assignment was recorded the same day. The mortgage and bond, with the assignment, were left in the possession of Fox, who was Neide’s conveyancer and agent, had acted for him in the purchase of the mortgage, and had been his intimate friend for a long time. Fox had the reputation also of being a man of integrity, and a responsible conveyancer.
    On the 7th of February 1870, Fox having the bond and mortgage in his possession; under the same power of attorney, assigned them to David Pepper, and delivered them to him with the assignment. Pepper was a boná fide purchaser, and had no actual notice of the assignment to Neide. Pepper’s assignment was recorded February 9th 1870. .
    On the 13th of December 1871, Neide issued a scire facias on the mortgage, and judgment being recovered on it, by agreement of parties the amount, $2070.25, was paid into court, to be paid to the party who the court should determine was entitled to it. The matter was referred to W. W. Weighly, Esq., who found the foregoing facts.
    He reported also, as his opinion, that the assignment of a mortgage is not within the recording acts, so as to make its record notice to a subsequent assignee. He further reported that Neide was guilty of gross negligence in selecting as his agent, the agent of the mortgagee, and leaving the bond and mortgage in his possession, knowing that he had a power of attorney to assign, &c., from the mortgagee.
    He therefore awarded to Pepper the money in court, $1818.50, after deducting expenses.
    Neide filed exceptions to the report of the auditor:
    1. That he had found there was gross negligence on the part of Neide.
    2. That the assignment of the 'mortgage was not within the recording acts, and therefore its record was not notice to Pepper.
    The Act of April 8th 1849, sect. 14, Pamph. L. 527, 1 Bright. Purd. 471, pi. 66, provides that “All assignments of mortgages * * * may be recorded in the office for recording of deeds in the county in which the mortgage assigned * * * may be, or shall have been recorded; and the record of such instrument, or a duly certified copy thereof, shall be as good evidence as the original assignment.” * * *
    The District Court, Mitchell, J., sustained the exception, and awarded the fund to Neide.
    Pepper appealed to the Supreme Court, and assigned the decree of the District Court for error.

      W. B. Bolins and JB. Wharton, for appellants. —
    As to whether the record of the assignment was notice: Craft v. Webster, 4 Rawle 242; Mott v. Clark, 9 Barr 400; Philips v. Bank, 6 Harris 402; Goff v. Denny, 2 Phila. R. 273.

      W. M. Lansdale and J. B. Townsend, for appellee.
    May 10th 1875.
   Mr. Justice Mercur

delivered the opinion of the court,

The contention in this case is between two claimants for the money collected on a mortgage. Each has an assignment for a valuable consideration duly executed by the attorney of the mortgagee.

The assignment to the appellee was made on the 28th May 1869, and duly recorded on the same day. The one to the appellant was executed on the 7th February 1870, and recorded two days thereafter. -The question raised by the first assignment is whether the recording of the first assignment was notice to the appellant.

The 14th section of the Act of 9th April 1849, Purd. Dig. 471, pi. 66, declares “ all assignments of mortgages, and letters of attorney authorizing the satisfaction of mortgages, duly executed and acknowledged in the manner provided by law for the acknowledgment of deeds, may be recorded in the office for the recording of deeds in the county in which the mortgage assigned or authorized to be satisfied may be or shall have been recorded, and the record of such instrument or a duly certified copy thereof shall be as good evidence as the original assignment or letter of attorney, when duly proved in any court of justice.”

It is contended that although this act permits the assignment of a mortgage to be recorded, yet the authority is so far discretionary, that if recorded, the effect is limited to making the record, or a certified copy, evidence. That inasmuch as the language of the statute declares it “ may be recorded,” it is insufficient to make the record notice to a subsequent assignee.

To this we answer that “may be recorded” are the identical words used in many of the, Acts of Assembly providing for the recording of instruments of writing, and substantially the language used in others.

“ May be recorded ” is the language of the 2d sect, of the Act of 2d May 1715, Purd. Dig. 460, pi. 10, providing for the recording of deeds and conveyances of lands ; of the 1st sect, of the Act of 15th April 1828, Id. 470, pl. 61, providing for the recording of any release or other instrument of writing being evidence of the payment or satisfaction of any legacy charged upon lands, and any release or other instrument of writing given to any executor, administrator, assignee, trustee or guardian; of the 12th sect, of the Act of 5th May 1841, Id. 468, pi. 53, authorizing the recording of deeds or-other instruments of writing touching or concerning lands, tenements and hereditaments in cases where the acknowledgment had been taken before the mayor or recorder of the city of Philadelphia; of the 1st sect, of the Act of 14th March 1846, Id. 470, pl. 62, authorizing the recording of all patents granted by the Commonwealth, and all deeds of sheriffs, coroners, marshals and treasurers, and all deeds made in pursuance of a decree of any court; of the 2d sect, of the Act of the 5th April 1849, Id. pl. 65, authorizing all deeds of county commissioners to be recorded; of the 24th sect, of the Act of 26th April 1850, Id. 471, pl. 68, authorizing the recording of any release or instrument of writing-made out of the state, being evidence of the payment or release of any legacy or recognisance charged on lands within this state; of the 1st sect, of the Act of 27th April 1854, Id. pi. 69, providing for the recording of releases executed without subscribing witnesses; of the 1st sect, of the Act of 17th May 1866, Id. pl. 71, authorizing the recording of releases executed in other states, being evidence of payment or satisfaction of any legacy, dower or recognisance charged upon lands, and also any release or other instrument of writing given to any executor, administrator, .assignee, trustee or guardian, as if duly executed within this state ; of the 2d sect, of the same act, Id. 469, pi. 60, making valid former acknowledgments of releases and authorizing them to be recorded.

“Entitled to bo recorded” is the language of the 1st sect, of the Act of 23d March 1819, Id. 461, pi. 16, authorizing the recording of deeds, conveyances and other instruments of writing concerning any lands, tenements or hereditaments within this state, acknowledged before judges of the United States courts, and the judges and justices of the Supreme Court or Courts of Common Pleas of any state or territory within the United States; of the 15th sect, of the Act of 16th April 1840, Id. 468, pi. 51, providing for the recording of deeds theretofore executed by husband and wife, and acknowledged before an officer of another state; of the 8th sect, of the Act of 10th April 1849, Id. 462, pi. 20, providing a mode of acknowledgment, made out of this state, sufficient to authorize the recording of deeds, conveyances and other instruments of writing, concerning any lands, tenements and hereditaments within this state ; of the 42d sect, of the Act of 25 th April 1850, Id. 463, pi. 21, legalizing acknowledgments theretofore made before any judge of any court of record in any state or territory of the United States, and authorizing them to be recorded; of the 1st sect, of the Act of 5th May 1854, Id. 469, pl. 57, validating deeds theretofore acknowledged before any officer in another state, who by the laws thereof was authorized to take the acknowledgment of deeds conveying lands therein and providing for their recording.

Thus it appears that the language of the Acts of Assembly providing for the recording of written instruments has not generally been mandatory. When recorded, however, we do not understand the effect thereof is in any respect lessened by the absence of an imperative command to record.. It is optional whether or not to record. When the election is made and an instrument authorized by law to be recorded, is actually recorded, all the incidents and force of a public record attach to that record. It is an early and well recognised principle that one great object in spreading an instrument of writing on a public record, is to give constructive notice of its contents to all mankind: Levine v. Will, 1 Dall. 430; Evans v. Jones et al., 1 Yeates 173 ; Brotherton v. Livingston, 3 W. & S. 334. We discover no evidence of legislative attempt to make the record of the assignment of a mortgage less effective than that of the mortgage itself. It was held in Pryor v. Wood et al., 7 Casey 142, the assignment of a mortgage, duly executed and recorded passed the legal title, and no suit could subsequently be maintained thereon in the name of the assignor for the use of the assignee. In Partridge v. Partridge, 2 Wright 78, where the assignment was not under seal nor in the presence of witnesses and not acknowledged and recorded, it was held, the scire facias might issue in the name of the holder of the legal title for the use of the assignee. The 1st sect, of the Act of 22d April 1863, Purd. Dig 485, pi. 130, provides, however, that the assignee of a mortgage, although the assignment has been duly recorded, may, at his option, sue and proceed thereon, either in his own name, or in the name of the mortgagee, to his use.

Prior to the enactment of the 14th sect, of the Act of 9th April 1849, supra, the decisions were conflicting as to whether the assignment of a mortgage was within the recording acts. In Craft v. Webster, 4 Rawle 242, and in Mott v. Clark, 9 Barr 399, it was held not to be; but in Philips v. Bank of Lewistown, 6 Harris 394, it was held to be within the recording Act of 28th May 1715. The right to record this assignment was set at rest by the Act of 1849. To adopt the view urged for the appellant would defeat the main object of all the statutes which we have cited. Instead of a system designed to give unity and harmony to the recording acts, it would inaugurate one fraught with mischief and uncertainty.

It was alleged on the argument that it is not customary in Philadelphia to search the records for assignments of mortgages. In other parts of the state we think the practice is generally otherwise. Be that as it may, if any custom exists not in harmony with the Act of 1849, it must give way to the statute. Malus usus abolendus est.

As the view we have taken is decisive of the case, it is unnecessary to consider the other assignments.

Decree affirmed, and it is ordered that the appellee pay the costs of this appeal.

Sharswood and Paxson, JJ., dissented.


author: Mr. Justice Shauswood

text:
    Pratt’s Appeal.
    1. Pratt entered into a note as surety for Strickland, who at the same time assigned to Pratt, as security, and delivered to him, a bill single with warrant, on which judgment had been entered in favor of Strickland; the judgment was not marked to Pratt’s use on the record; Pratt paid the note. Strickland being indebted to Christman, afterwards offered to confess judgment for this debt or assign the first judgment as collateral. Christman, after examining the record, took the assignment, Pratt still holding the bill with warrant'; the judgment was marked to Christman’s use : Held, he was not a purchaser for value and was postponed to Pratt.
    2. The non-delivery to Christman of the note on which the judgment was entered, was not notice of the prior assignment.
    3. Ashton’s Appeal, 23 P. F. Smith 162; Fraley’s Appeal, 26 Id. 42, followed.
    February 6th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Chester county: Of January Term 1875.
    The facts in this case were as follows :
    On the 6th of April 1871, judgment was entered in the Common Pleas of Chester county, on bill single and warrant of attorney to confess judgment, dated the same day for $500, in favor of Nimrod Strickland, Jr., against Abraham Mosteller; the bill single and warrant, which constituted one instrument, were after the entry of the judgment, in accordance with the practice of that county, handed back to Strickland.
    Strickland being indebted to William H. Wells, handed this note over to him in part payment. This was in September 1872. Some two or three days thereafter, Strickland paid the money to Wells, who returned the note to him, and executed an assignment of it, the name of the assignee and the date also being left blank. This assignment was on a separate paper from the note, which was attached to it. When the note was first handed to Wells, it had no endorsement or assignment upon it. Subsequently, this entry was made upon it. “ This judgment is for the use of William H. Wells,” (signed) “ Nim. Strickland, Jr.”

      On the 2d of October 1872, Strickland called upon Joseph Pratt, and informed him that he had to raise some money, and desired him to endorse or go his security on a note for $500, and offered him as security the note of Mosteller. Pratt entered into a note with Strickland to Smedley Darlington for $500, dated October 2d 1872, upon which Strickland obtained the money. At the same time Strickland handed the note to Pratt, together with the assignment of Wells, filling in the name of Joseph Pratt as assignee, so that Mr. Pratt in form held the note as assignee of Wells. Mr. Pratt became surety for Strickland on the faith of the transfer of this note and the judgment entered thereon. He took possession of the note and assignment and retained them. He had no entry made on the docket of the transfer of the judgment. A short time after the note given to Darlington became due Pratt was called upon to pay it and did so.
    On the 18th of October 1872, Jacob Christman called upon Strickland for payment of $500, and interest which Strickland had collected for him as his attorney-at-law, and had made use of for his own purposes. Strickland offered to give him a lien upon his property, or to assign to him a judgment which he held against Mosteller. Christman on the same day called upon Mr. Monaghan as his counsel, and informed him of the circumstances and of the offer of Strickland. Christman and his counsel then repaired to the public offices and examined the records as to the condition of Strickland and also of Mosteller. Christman was thereupon advised to take a transfer of the judgment against Mosteller in preference to a lien against Strickland. Christman left the matter in the hands of his counsel, Mr. Monaghan, to carry out for him, and Mr. Monaghan, on the same day, October 18th 1872, procured from Strickland an assignment to Christman of the judgment against Mosteller, which had been assigned to Pratt. Christman was not aware that there had been a previous assignment to Pratt, and there was nothing on the record of the judgment to indicate it. On the 19th of November 1872, the assignment to Christman was filed in the prothonotary’s office and the judgment marked to his use.
    Execution was issued against Mosteller, the money in the sheriff’s hands collected thereon being claimed respectively by Joseph Pratt and Jacob Christman, J. Smith Futhey, Esq., was appointed auditor to determine the ownership of the fund. He reported the foregoing facts and awarded the fund to Christ-man.
    Exceptions having been filed to the report, it was recommitted to the same auditor to take further testimony and report on it. In his additional report he found that Christman “ took the assignment of the judgment in preference to a judgment against Strickland; that he took it for the purpose of securing, as far as possible, Strickland’s indebtedness to him, and of realizing his money from it; that he was informed by his counsel that, in his opinion, it would not be safe to take a lien on Strickland’s property — that it would not secure his money, and that he was satisfied, after examining the records that Mosteller was gopd. The assignment of the Mos-teller judgment to Christman was not taken as payment in the ordinary legal acceptation of the term, or in substitution for the debt which Strickland owed Christman, but to secure Christman, and to enable him to realize, as far as possible, the indebtedness of Strickland to him. At the time of the assignment of the Mos-teller judgment to Christman on the 18th of October 1872, Strickland was engaged in the practice of his profession, and owned real estate and personal property — the latter consisting principally of his law library and office furniture. His real estate was encumbered to more than its value in the market. On the 19th of October 1872, an execution was issued against Strickland by Pyle & Brown, for a debt of $150. This execution was placed in the hands of the sheriff at 3 o’clock p. M. on said day. On the same day, Strickland gave to Aitkin & Sergeant, a judgment note for $464.73, payable on demand, which was entered as a judgment on the same day ; and on the 25th of October 1872, at about 10 o’clock in the evening, an execution was issued upon it, and placed in 'the hands of the sheriff. It will be thus seen that the execution of "Pyle & Brown was placed in the hands of the sheriff at 3 o’clock of the day after that on which Christman had taken an assignment of the Mosteller judgment, and that of Aitken & Sergeant.
    “ The personal property of Strickland was levied upon and sold under these executions, and realized the sum of $697.53, which, after deducting costs, was appropriated, first to the payment of rent due Joseph P. Wilson, $175, next to the amount of Pyle & Brown’s execution, $152.98, and the balance, $337.21, to the execution of Aitken & Sergeant. On the morning of October 25th 1872, Strickland left and has not since returned. Christman was not aware that Pratt held an assignment of the note on which the Mosteller judgment had been entered, until after Strickland had left, and after his personal property had thus been taken in execution.

      “ The auditor is of the opinion that at the time when Christman became aware that Pratt held an assignment of the note in question, he occupied a different position from that which he did when he took the assignment of the judgment from Strickland. Had the records, when examined by Christman, exhibited the fact that Pratt was the owner of the-judgment, and that he could therefore obtain nothing from that source, he might have obtained judgment by confession from Strickland, and issued execution thereon, and as will be seen from the foregoing facts, have thus secured the greater part of his claim. Whether he would have issued an execution if judgment had been confessed, we of course have no means of knowing, but he might have done so. So far as appears there was no other source from which he could have realized anything by legal process, except from the personal property of Strickland. While therefore the auditor .now finds that the assignment of the judgment to Christman was not taken by him in substitution of, or as payment of the indebtedness of Strickland, or of part of it, yet as he occupied a different position, when he wag first informed of the assignment held by Pratt, from that which he did when he took the assignment of the Hosteller judgment, the auditor is of opinion, that the proceeds of the judgment should be awarded to him, and he therefore makes no alteration as to the manner of distribution from that already reported by him.”
    After exceptions by Pratt, the court (Butler, P. J.) confirmed the report of the auditor and decreed the fund to Christman.
    Pratt appealed to the Supreme Court and assigned the decree for error.

      R. T. Qornwell and W. Darlington, for appellant.
    The assignment to Christman conveyed no greater right than Strickland possessed. Christman was not a purchaser for value. A creditor who takes a mortgage, note or other chose in action, only as security for a pre-existing indebtedness, and not for money advanced at the time, is not a purchaser for value : Ashton’s Appeal, 23 P. F. Smith 162; Petrie v. Clark, 11 S. & R. 377; Irwin v. Tabb, 17 Id. 419; Hartman v. Dowdel, 1 Rawle 282; Twelves v. Williams, 3 Whart. 485; Depeau v. Waddington, 6 Id. 220; Trotter v. Shippen, 2 Barr 358; Ludwig v. Highley, 5 Id. 139; Kirkpatrick v. Muirhead, 4 Harris 123; Garrard v. Railroad Co., 5 Casey 154 ; Railroad Co. v. Barker, Id. 160 ; Bay v. Coddington, 5 Johns. Ch. 54; s. c., 20 Id. 637; Stalker v. McDonald, 6 Hill 93.

      R. R. MonaghanandP. R. Smith, for appellee,
    cited: Fisher v. Knox, 1 Harris 622; Campbell’s Appeal, 5 Casey 402; Fraley’s Appeal, 26 P. F. Smith 42; Gaullagher v. Caldwell, 10 Harris 300; Eagle Beneficial Society’s Appeal, 25 P. F. Smith 226.
    March 1st 1875.
   Mr. Justice Shauswood

delivered the opinion of the court,

The appellant held an assignment for valuable consideration of the note and judgment against Mosteller, which was prior in time to the assignment to Christman, and therefore better in right, unless Christman could show a superior equity. As against a subsequent purchaser for valuable consideration without notice, Pratt’s neglect to have the judgment marked on the record to his use, would have postponed him under the case of Fisher v. Knox, 1 Harris 622; Gaullagher v. Caldwell, 10 Id. 300; Campbell’s Appeal, 5 Casey 402. Nor would the fact of the non-production and delivery of the note by the assignor at the time of the second assignment, avail to show notice of the prior assignment: Bury v. Hartman, 4 S. & R. 175; Fraley’s Appeal, 26 P. F. Smith 42. But was Christman a sufficient purchaser for ¡yalue ? He took his assignment as mere collateral security for a prior indebtedness. According to the well-established doctrine of this court that did not invest him with the rights or equity of a purchaser for value: Ashton’s Appeal, 23 P. F. Smith 162, and cases there cited. It is supposed, however, by the auditor and the learned court below, that the fact that when the assignment was made to Christman the assignor offered to confess a judgment in his favor, or to assign him this judgment as collateral, and that he preferred the latter alternative, was a sufficient consideration. “ Christman,” says the auditor, “ was not aware that Pratt held an assignment of the note on which the Mosteller judgment had been entered, until after Strickland (the assignor) had left, and after his personal property had been taken in execution. The auditor is of the opinion that at the time when Christman became aware' that Pratt held an assignment of the note in question, he occupied a different position from that which he did when he took the assignment of the judgment from Strickland.” That may be true; but how did it make his assignment an assignment for value ? It showed, perhaps, that he had made a mistake in not accepting the confession of judgment, and proceeding at once to levy upon Strickland’s personal property. Had he contracted to give time on the debt the case would have been different. His position after the assignment was the same as before. He had given up no right which he then possessed. If a debtor offers to his creditor the choice of one- of two securities as collateral, surely he is not turned into a purchaser for value, by showing that if he had accepted the one which he declined, he could or might have made his money. If it resulted in loss, it was not a loss produced by the assignment, but entirely independent, and cannot therefore enter into the consideration of it.

Decree-reversed, and the balance of the fund in court ordered to be paid to Joseph Pratt. The cost of this appeal to be paid by the appellee.


author: Mr. Justice Woodward

text:
    Twitchell versus McMurtrie.
    1. The plaintiff, assignee of an assignee of a mortgage by husband and •wife on her property, issued after the husband’s deathaseire facias and filed with it declarations of mortgagees — under seal and duly acknowledged on ’ the wife’s separate examination — of no set-off and knowledge of each assignment ; her affidavit of defence was that the mortgage was made whilst they were in prison, at the request of O’Byrne, without consideration, assigned to him without consideration, as security for expenses of husband and wife’s trial, with the agreement that he would never assign it; that he entered the mortgaged premises, and from the rents and other sources had received more than the principal of the mortgage and had assigned it to plaintiff for §1, as stated in the assignment; that she never knowingly signed or acknowledged the declarations, and was not made acquainted with their contents: Held, these allegations were sufficient to allow the defendant to go to a jury.
    2. A reasonable intendment is to be made in favor of affidavits of defence.
    3. If the circumstances make out a primá facie case of fraud on the maker even of negotiable paper, the holder must establish his title to it.
    4. Although an assignment under seal imports a consideration, the assignee must prove it if there be even slight evidence to impeach the transaction.
    5. An assignee of a mortgage takes it -subject to all defences unless he ascertain from the mortgagor that there are none.
    6. The assignee of a mortgage is affected by facts invalidating the acknowledgment, as to which it is for the jury to pass on the testimony the parties may submit.
    7. A mortgagee may be treated as a purchaser as regards the recording acts; but the parties hold the relation of debtor and creditor.
    8. Quaere, whether the declarations of no set-off would have any effect to control a decision by the court, if there were a defence on other grounds.
    February 8th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercer, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia ; No. 224, to January Term 1873.
    This was a scire facias sur mortgage, issued October 15th 1872, in which Bichard C. McMurtrie, trustee of H. W. and J. C. M. Halbaeh, was plaintiff, and Camilla E. Twitchell was defendant.
    George S. Twitchell, Jr., on the 28th of November 1868, executed a bond for the payment of the sum of $10,000 to his father, George S. Twitchell, Sr., and at the same time the obligor and his wife executed a mortgage to the father on real estate belonging to her to secure the payment of the bond. On the day of the date of the mortgage, the mortgagee assigned it to John O’Byrne, Esq. On the 8th of February 1869, O’Byrne assigned the mortgage to the plaintiff and two others, trustees ; the two trustees were dismissed from the trust, leaving the plaintiff sole trustee. At the execution of the mortgage the mortgagor and his wife signed under their seals a declaration reciting that the bond was about to be assigned to O’Byrne, with their knowledge and consent, and acknowledging that the whole debt, $10,000, secured by the mortgage was due. On the 8th of February 1869, they made another declaration executed in the same manner as the first, reciting' that the mortgage was about to be assigned to the trustees, with tbeir knowledge and consent, and acknowledging that the whole principal sum, $10,000, with interest, was due. Both these declarations were duly acknowledged before a notary public on the separate examination of the wife. The husband afterward died.
    The papers were filed with the record of the scire facias.
    Mrs. Twitchell made an affidavit of defence, to wit:
    “ That the mortgage for $10,000, upon which said suit is brought, was executed by her and her husband on the 28th day of November 1868, at the request of Mr. John O’Byrne, to George S. Twitchell, Senior, without any consideration whatever, and assigned by him on the same day, without consideration, to the said John O’Byrne.
    “ That at the time of its said execution, she and her husband were confined in prison, and said mortgage was given as security for any expenses that might arise from their approaching trial, and under the express agreement with the said O’Byrne, that he would never in any manner assign-or part with said mortgage.
    “ That said mortgage is secured upon a property at north-east corner of Tenth and Pine, in this city, which is in her own name, and was so at the time of the execution of said mortgage; and the said O’Byrne, immediately after the said assignment to him, took possession of the said property, and has retained the same until just prior to this suit; has rented the premises, collected the rents, made the repairs, paid the taxes, and generally acted as a mortgagee in possession, and that she has never received any return therefrom in any way, nor any account thereof, although she has often demanded the same from him.
    “ That she has never received from the said O’Byrne any statement or account of the expenses of her and her husband’s trial, or either of them, notwithstanding she has urged the rendering of such account or statement by him.
    “ That by the advice of the said O’Byrne, she waived her right to administer the estate of her mother, Mary E. Hill, who died November 22d 1868, and William Callahan, a stranger to her, was granted letters of administration, November 25th 1868, the said O’Byrne becoming his security in the sum of $10,000.
    “That the said O’Byrne has managed the estate, acting in all respects as administrator, selling the personal property, collecting the credits in his own name, and paying debts of the decedent, and she has always believed him to be the administrator.
    “ That upon a citation, the account of said administration was file,d April 26th 1872, and has been referred to an auditor, before whom she believes and expects to be able to prove that a large portion of the assets of said estate are unaccounted for, amounting to more than the principal sum of said mortgage.
    “ That she never knowingly signed the paper, a copy of which is filed in this suit, and that no such paper was ever read to her, nor was she made acquainted with its contents, nor did she acknowledge the same in the manner and form therein set forth.
    “ That, it appears by the record of this suit that the said O’Byrne assigned said mortgage to Charles Yezin, Ferdinand Lorenz, and Richard O. McMurtrie, trustees, &c., for the sum of $1.”
    On the 27th of November 1872, the court directed judgment to be entered for the plaintiff for want of a sufficient affidavit of defence. This was assigned for error on the removal of the record to the Supreme Court by writ of error. She also assigned for error, allowing the declarations of set' off to be filed.

      J. J. Bidgway, for plaintiff in error.
    The declarations of no set-off were of no value in determining the sufficiency of the affidavit of defence; the effect of them was for the jury. . No fact outside of the copy filed will be looked at by the court: 1 Troubat & H. 371; Imhoff v. Brown, 6 Casey 504. The certificate of an acknowledging magistrate maybe impeached : Jamison v. Jamison, 3 Whart. 457 ; Barnet v. Barnet, 15 S. & R. 72; Hall v. Patterson, 1 P. F. Smith 289 ; Shrader v. Decker, 9 Barr 14; McCandless v. Engle, 1 P. F. Smith 309 ; Michener v. Cavender, 2 Wright 237. The assignee takes subject to all objections the obligor could make: Elliott v. Callan, 1 Penna. R. 24; Wheeler v. Hughes, 1 Dall. 23; Rudy v. Wenner, 16 S. & R. 18 ; Morton v. Rose, 2 Wash. C. C. R. 233; Horstman v. Gerker, 13 Wright 287. On allegation of fraud an innocent holder of even negotiable paper must prove a valuable consideration; Hutchinson v. Boggs, 4 Casey 294; Hoffman v. Foster, 7 Wright 137 ; Chew Barnet, 11 S. & R. 389 ; Hancock’s Appeal, 10 Casey 155. An attorney cannot take a gift from his client instead of his bill: Wells v. Middleton, 1 Cox C. C. 112 ; Ormond v. Hutchinson, 13 Ves. 52 ; Morse v. Royal, 12 Id. 372.

      A. 8. Biddle and B. G. McMurtrie, for defendant in error.—
    The estate conveyed by the mortgage ivas not a chose in action, but a title defeasible by payment of the debt: Scott v. Fields, 7 Watts 360 ; the secret agreement not to convey would affect it only as it would other conveyances. The debt being admitted, the conveyance cannot be destroyed by anything that would not affect other conveyances: Philips v. Bank, 6 Harris 402. The defendant’s title was her equity of redemption ; Gilmore v. Commonwealth, 17 S. & R. 276; Simpson v. Ammons, 1 Binn. 175. The condition in the mortgage is the payment of the debt which subsists in innocent hands who bought on the faith of her conveyance. The debt carries the estate: Foster v. Fox, 4 W. & S. 92; Farmers’ Bank v. Fordyce, 1 Barr 455 ; and the owner of that is a purchaser for value : Lancaster v. Dolan, 1 Rawle 231; her position is of one seeking to redeem : Rinton v. Vandegrift. Notice of a defect in the acknowledgment, arising out of fraud, must be brought home to the purchaser : Schrader v. Decker, 9 Barr 14 ; Louden v. Blythe, 4 Harris 541; Louden v. Blythe, 3 Casey 25; Hall v. Patterson, 1 P. F. Smith 290.
    May 10th 1875.
   Mr. Justice Woodward

delivered the opinion of the court,

There can be no doubt that if John O’Byrne, the first assignee of the mortgage, had been the plaintiff in this action, the defendant would have had the right to prove the facts alleged in her affidavit. The mortgage, according to her statement, was executed at his instance. The defendant and her husband were confined in prison on a charge of crime, and Mr. O’Byrne undertook to provide and disburse the funds required to meet the expenses of their approaching trial. These funds were to be raised out of the defendant’s property, and the mortgage, which he agreed he would never part with, Avas .the means by which the control of the property was placed in his hands. He took possession, and collected the rents up to a time shortly before this suit Avas brought. Besides this, he procured the appointment of William Callahan as administrator of Mary E. Hill, the mother of the defendant, retaining the management of the estate entirely in himself, selling the personal property, collecting the credits in his own name, paying the debts of Mrs. Hill, and acting in all respects as if the administration had been committed to him and not to Callahan. The settlement of the estate is pending un the Orphans’ Court, and the defendant asserts her belief that a large portion of the assets has been unaccounted for, amounting to more than the principal of the mortgage. In the meantime, no statement has been made of the expenses of the trial of the defendant and her husband, and no account has been rendered of the management of the mortgaged premises, although such an account has been demanded. On the 8th of February 1869, in violation of his agreement that he would not part with the mortgage, he assigned it to the trustees represented by the plaintiff beloAV. The consideration stated in the assignment was one dollar.

Upon facts like these, it is clear that even an endorsee of a promissory note would be required, in an action against the maker, to prove that he had received it in the usual course of business, for a valuable consideration, and before it was due. A party may rest upon the presumptions of law in his favor in the first instance, but where circumstances are shown making out, primfi facie, a case of fraud upon the maker, the holder must establish his title to the note: Hutchinson v. Boggs and Kirk, 4 Casey 294. The assignee of a specialty is subject to a different and more stringent rule than the endorsee of negotiable paper. He is affected more directly and to a very much greater extent by the equities and trusts subsisting between the original parties. While the broad principle of Chew v. Barnet, 11 S. & R. 389, and Kramer v. Arthurs, 7 Barr 165, has been modified, slight notice of facts constituting a defence is sufficient to bind an assignee, and “ anything that would put a prudent man upon inquiry, it has often been held, is equivalent to notice:” Churcher v. Guernsey, 3 Wright 84. The nominal consideration for this assignment was one dollar. The transfer to the trustees, upon the assumption that the allegations of the affidavit are true, was a fraudulent violation on the part of Mr. O’Byrne of the duty which the law imposed on him, as well as a breach of his express agreement with the defendant. It was said in Hancock’s Appeal, 10 Casey 156, that while, in the absence of any evidence to the contrary, an assignment under seal imports a valuable consideration, yet the assignee may be required to give full proof of consideration if there be any evidence, however slight, to impeach the boná fides of the transaction. The grounds of defence asserted here were amply adequate to give to the defendant the right to a trial by jury, and to entitle her to call upon the plaintiff to prove the circumstances under which the assignment of the mortgage was made.

Notwithstanding the general facts set out in the affidavit of defence, the judgment is sought to be sustained on the ground that the defendant is estopped from denying her liability by the execution of the instrument filed with the praecipe for the scire facias, by which it was declared by her husband and herself, that they had no legal claim or set-off against the mortgage'; that it was about to be assigned to the trustees of H. W. and J. C. M. Halbach, with their full knowledge and consent; and that they acknowledged the principal sum of $10,000 to be due. It may well be doubted whether the effect contended for could be given to this certificate even if it were unaffected by any allegation in the affidavit. The mortgage was perfect in itself as a cause of action, and the suit was brought on that. The certificate would be evidence on a trial, undoubtedly. But it does not follow that it could be taken up either by the court below, or by this court, in order to control a decision against the defendant when an adequate defence had been made out on other grounds. The effect would be that the court, without an issue, would be engaged in trying the merits of the controversy with a sufficient affidavit of defence before them on one side, and part of the plaintiff’s documentary evidence before them on the other. It is not necessary, however, to express any opinion on this. The defendant has sworn that she never knowingly signed this paper, that no such paper was ever read over to her, and she was never made acquainted with its contents; and that she did not acknowledge it “ in the manner and form therein set forth.” It is objected that this statement is vague and inconclusive. The facts could have been given more fully and with more of circumstantial detail; but the absence of the requisite formalities to make an acknowledgment effective is alleged with substantial certainty. A reasonable intendment is to be made in favor of affidavits of defence. It has sometimes happened that they have been subjected to a scrutiny unduly rigid. It would be harsh to apply the old rules that demanded strict accuracy, precision, and completeness of statement to instruments like these, when those rules have been relaxed in their application to other instruments of judicial form. That the defendant has the right to prove her allegations in relation to the acknowledgment there can be no doubt. In Michener v. Cavender, 2 Wright 337, it was said by the judge who delivered the opinion of this court, that “ a purchaser of real estate who finds the deeds in the channels of his title all regularly acknowledged, is certainly not required to go up the stream and inquire of every married woman if she executed her deed voluntarily, and acknowledged it according to law; and if he pays his money on the faith of such title deeds he is to be protected, and this is probably all that was meant by what judges have said about purchasing without notice. But a mortgagee is not a purchaser of an estate, though for the purposes of the recording acts he is sometimes treated as one. * * * His assignee takes the mortgage subject to all defences, unless he inquire of the mortgagor and learn that there are none.” And in McCandless v. Engle, 1 P. F. Smith 309, 314, this case of Michener v. Cavender was referred to as settling the point that the assignee of a mortgage is to be affected by facts invalidating its acknowledgment. “A different rule,” Judge Thompson added, applies to a conveyance of real estate. A mortgage is only so, however, in form, while in fact it is but a security for money.” It is for the jury to settle the effect of the testimony the parties may submit. They are to pass upon the question whether the contested acknowledgment was duly made, as well as upon the questions relating to the consideration, the knowledge or the means of knowledge of the assignees, and to the good faith in which they acted, in case evidence is given by the defendant in support of the averments of her affidavit.

The language already quoted from the cases of Michener v. Cavender and McCandless v. Engle, meets the remaining ground on which it is insisted the judgment should be supported. For some purposes a mortgage is something more than a mere security for a debt. It is a pledge of specific property. It gives to a creditor the exceptional remedy of ejectment. And, as suggested in Michener v. Cavender, a mortgagee may be treated as a purchaser for the purposes of the recording acts. But the parties to this record hold the relation of debtor and creditor. The action in form and object is to enforce the payment of a debt. Judge Thompson said in Horstman v. Gerker, 13 Wright 282, that, although a mortgage “ may he assigned so as to permit the assignee to sue in his own name, yet it is subject to the same equities and rules that govern other non-negotiable instruments or claims.” As these parties stand, the rule of that case should be applied to this.

Judgment reversed, and procedendo awarded.


author: Mr. Justice Gordon

text:
    Freeman Assignee, versus Husband.
    1. Land, was sold by the sheriff on. the condition that §50 of the bid should be paid when it was struck down, and the remainder in ten days; if not then paid, it might be sold again, and the bidder should pay any deficiency. The bidder failed to comply ; the land was exposed under an alias execution, with the condition that §500 was to be paid when struck down ; it was sold for a smaller sum than the first bid: Held, there was a change of conditions, and the first bidder was not liable for the deficiency.
    2. In an action against a purchaser at sheriff’s sale refusing to comply with the conditions, for a difference of bid at a second sale, the suit must be in the name of the sheriff.
    3. Adams v. Adams, 4 Watts 162: Banes.«. Gordon, 9 Barr 426 ; Gaskill «. Morris, 7 W. & S. 32; Paul v. Shallcross, 2 Bawle 326, followed.
    February 8th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1873, No. 161.
    This was an action of assumpsit, brought March 2d 1871, by Samuel T. Freeman, assignee of John Smith, a bankrupt, against William A. Husband. A case stated was afterwards filed, showing the following facts :
    John Smith, on the 17th day of July 1869, owned a house and lot, subject to a mortgage of $10,000. Smith was afterward adjudged a bankrupt, and an assignment of all his property and effects was, on the 28th day of August 1869, made to the plaintiff.
    On the 4th day of February 1870, a scire facias was issued on the mortgage, and judgment was obtained on the 11th day of March then next.
    On that day a levari facias was issued, and the house and lot were advertised for sale by Peter Lyle, Esq., then sheriff, on the 4th day of April 1870, under the following conditions:

      “ Fifty dollars of the sum at which the property shall be struck off shall be paid to the sheriff at the time of sale; otherwise the property will again be immediately put up and sold. The balance of the purchase-money must be paid to the sheriff, at his office, within ten days from the time of sale, without any demand being made by the sheriff therefor ; otherwise the property may be sold again at the expense and risk of the person to whom it is struck off, who, in case of any deficiency at such re-sale, shall make good the same.”
    On the said 4th day of April the sheriff sold the house and lot to the defendant,. for the sum of $18,000; and the $50 deposit money were paid by him. No further payments being made by defendant, the plaintiff in the execution, after the expiration of ten days from the day of sale, requested him to comply with the terms of sale. Defendant still failing so to comply, the sheriff returned to the said levari facias, as follows:
    “ I certify that, after giving due and legal notice, I exposed the premises within described to public sale, on Monday, April 4th 1870, and sold the same for the sum of $13,000 to W. A.'Husband, and he’having failed to comply with the terms of sale, the said premises remain unsold for want of buyers.”
    On the 19th day of April 1870, an alias levari facias was issued, and the house and lot were advertised by the sheriff for sale, on the 2d of May 1870, under the same terms and conditions as those under which defendant bought, except that a deposit of $500 was required at this sale, instead of $50, as at the first. This change in terms of sale was made by the said sheriff at the request of the plaintiff in the execution, and without the procurement or knowledge of the plaintiff, and without notice to the defendant. On the 2d day of May the property was sold by the sheriff for $12,150. The money due the plaintiff in the execution was paid to him, the surplus paid into court, and an auditor appointed to distribute it. He reported that the plaintiff, as assignee in bankruptcy of John Smith, was entitled to the whole of the surplus; his report was confirmed, and the surplus paid to the plaintiff.
    At the second sale, William R. Dickerson, Esq., was present, and prevented from bidding on the house and lot by reason of the notice by the sheriff that the purchaser would be required to pay the sum of $500 at the time of sale. He would have purchased the property at a price equal, or nearly equal, to that at which the defendant had bought. He thought that there was some defect in the title, because of the demand for a deposit of $500.
    Should the court be of the opinion that,
    1. Under the foregoing facts the plaintiff is entitled to maintain this action; and,
    2. That he can, under the facts stated, recover from the defendant ; then judgment to be entered for the plaintiff, and against the defendant for $900, with interest from April 4th 187 O.
    But if the court should be of the contrary opinion, then judgment to be entered for the defendant.
    The court entered judgment for the defendant. This was assigned for error on the removal of the record to the Supreme Court by writ of error.

      J. S. Sharp and H. O. Alleman, for plaintiff in error.

      W. E. Ruddiman and E. E. Pettit, for defendant in error.
    February 15th 1875.
   Mr. Justice Gordon

delivered the opinion of the court,

On the 4th day of April 1870, certain real estate of John Smith was exposed to sale by the sheriff of Philadelphia county, .upon a writ of levari facias, issued to March Term 1870, and the property was struck down to defendant on his bid of $13,000. The following were the terms under which the property was sold: “ Fifty dollars of the price, or sum at which the property shall be struck off, shall be paid to the sheriff at the time of sale, unless the purchase-money shall be less than that sum, in which, case only the purchase-money shall be paid. Otherwise the property will again be immediately put up and sold. The balance of the purchase-money must be paid to the sheriff, at his office, within ten days from the time of sale, without any demand being made by the sheriff therefor, otherwise the property may be sold again at the expense and risk of the person to whom it is struck off, who, in case of any deficiency at such resale, shall make good the same.”

The defendant paid the hand-money ($50) but no more. He was requested to comply with the terms of sale, but neglected so to do. The sheriff then made return that the premises remained unsold for the want of buyers. Afterwards, on the 19th of April 1870, an alias levari facias was issued, upon which the same premises were sold to David H. Hess for $12,150. The conditions were so altered at this latter sale as to require $500 to be paid in hand. This action was brought to recover the difference between the defendant’s bid at the first sale and the price subsequently obtained for the property. The court below entered judgment for the defendant upon a case stated, containing the facts as above set forth.

Tavo questions are presented for our solution. First. Can any one but the sheriff who sold the property maintain this action ?

Second. Did not the alteration in the terms of sale release the defendant from liability ?

We answer the first in the negative, on the authority of the cases of Adams v. Adams, 4 Watts 162, and Gaskill v. Morris, 7 W. & S. 32, in both of which it was held, that not only should the suit be brought in the name of the sheriff, but that it could be maintained by no other person. The counsel for the plaintiff contends that it might have been amended in the court below, by substituting the name of the sheriff as plaintiff, and that, therefore, we are to treat it as so amended. We will not say that this-might not have been done upon proper cause shown, but as the amendment, when made, would not have been merely technical, and of course, but substantial, involving the rights of a third party, we cannot treat it as if it were now part of the record.

The second question we answer affirmatively. The terms and conditions exhibited at a public sale, are in the nature of a contract with those who may choose to bid or buy at such sale.

In the case in hand, the defendant, by his act of bidding, and permitting the property to be struck down to him, agreed, 1st, to forfeit the $50 hand-money if he did not comply with the terms of sale. 2d. that upon a resale, he would pay the difference between his bid and what the property might bring upon such resale. Rut if these terms were materially altered upon the resale, he was thereby released; for he cannot be held to conditions that did not form part of his contract.

That the alteration of the terms of sale was material, and that it did affect the price of the property on the resale, is conceded in the case stated. It is therein set forth, “that Wm. R. Dickerson, Esq., was present and prevented from bidding on the house and lot in question, by reason of the notice by the sheriff that the purchaser would be required to pay the sum of $500 at the time of sale. He would have purchased said property at a price equal or nearly equal to that at which the defendant had bought.” It is manifest therefore that the responsibility of loss, if any such there is, rests with the sheriff, and not with the defendant.

The doctrine above enunciated is supported by the cases of Paul v. Shallcross, 2 Rawle 326, and Banes v. Gordon, 9 Barr 426. The judgment is affirmed.


author: Mr. Justice Passoít

text:
    Tenbrooke versus Jahke.
    1. A party applying for it is entitled to a clear and distinct instruction on a rule of la.w applicable to his case.
    2. Plaintiff bought a lot at a master’s sale, defendant being present and bidding against him ; it was announced at the sale that there was an unopened street over the lot, and the purchaser would be entitled to the damages; the plaintiff afterwards sold the lot to defendant, who also lived near the street, without informing him of the street. In an action for the purchase-money, the court charged that it was the duty of the plaintiff, when he sold to defendant, to inform him of the street, and. not doing so was suppression of a material fact which entitled defendant to set off the injury by opening the street. Held to be error, as withdrawing the question from the jury.
    3. When there is a mutual mistake as to an encumbrance on land sold, equity relieves not by allowing the vendee to keep the property and price, but by rescinding the contract and restoring the parties to their former position.
    4. Damages for opening roads are a personal claim assessed in favor of the owner at the time of the injury, and do not run with the land.
    February 9th 1875.
    Before A&new, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, J J.

      Error to the District Court of Philadelphia: Of January Term 1873, No. 227.
    This was a scire facias sur mortgage, issued October 26th 1871, at the suit of William E. Tenbrooke against Henry Jahke. The mortgage was dated September 20th 1869, and was given to secure $1000, part of the purchase-money of a lot of ground in the Twenty-fourth ward, Philadelphia, marked as No. 10, the plaintiff having purchased it with lot No. 8, on the 9th of March 1869, at a master’s sale, under proceedings in partition of the estate of Pritchett. The defence wms that after the purchase of the lot by the defendant, Baring street had been opened through it; that the plaintiff had not given the defendant, when he bought, notice of the street; that the plaintiff had received the damages for opening the street, and that there should be defalked from the mortgage the amount of injury sustained by the defendant in consequence of the opening of the street.
    The case was tried December 12th 1872, before Briggs, J. The plaintiff gave m evidence the mortgage on which the scire facias issued.
    The defendant then gave in evidence a deed from plaintiff to him, dated September 20th 1869, for the ground mentioned in the mortgage; also, under objection and exception, the record of proceedings in the Quarter Sessions of Philadelphia, commenced February 6th 1856, upon petition of residents of the Twenty-fourth ward, for the opening of Baring street, and for a jury to assess damages; the appointment of a jury who reported their assessment October 25th 1856, inclusive of damages to lots of the Pritchetts; and report confirmed at March Term 1860.
    Defendant called Abraham Heston, who testified that he had seen the plaintiff, at the request of defendant. Under objection and exception he further testified, that he brought the parties together a week before the deed was made; the defendant was to pay $1000 cash; $1000 to be secured by mortgage. Defendant said he would get the searches made ; plaintiff said he would prepare the papers for $7.50. When defendant purchased he lived about 20Ó feet from Baring street.
    The defendant testified that in 1870 he received notice from the highway department of the opening of Baring street; he had attended the public sale of the lot and bid for it; the auctioneer did not say that Baring street was over it, nor that the purchaser would be entitled to the damages. Defendant did not know that the street was laid over the lot when he bought it. The deed and mortgage were drawn by plaintiff.
    Under objection and exception, the defendant gave evidence by Jerome Carty, Esq., the master in chancery who sold the land, that he had collected the damages awarded to the Pritchetts and paid them to plaintiff, who had become purchaser; witness could not tell the amount of damages awarded to lot No. 10, sold to defendant. Witness collected $1600 for damages awarded to Pritchetts, for lots 8 and 10, both which had been sold to plaintiff; damages were paid to plaintiff, because as master, witness had an arrangement with the owners and with notice at the sale, that Baring street when opened would pass through both lots and the purchaser would be entitled to the damages awarded; the damages were paid to plaintiff by authority of the owners.
    T. W. Hancock, under objection by plaintiff and exception, testified as to the value of the land taken from defendant’s lot by opening the street. The court, on cross-examination, refused to allow witness to answer the question whether defendant had not built a house on Baring street worth $10,000, and sealed a bill of exceptions for plaintiff.
    The defendant, under objection and exception, gave evidence by George Carter, of the relative value of the deficiency of the lot compared with the whole lot.
    The plaintiff, in rebuttal, testified that he attended the master’s sale. A plan was exhibited, showing that Baring street was laid over these lots ; it was announced that the purchaser would be entitled to the damages; defendant told plaintiff that he was bidding against him. $1600 were paid to plaintiff for damages; at the sale by plaintiff to defendant, plaintiff said nothing about the street.
    Plaintiff offered to show that defendant had put valuable improvements on lot No. 10. This was objected to by defendant, rejected and a bill of exceptions sealed.
    Plaintiff further testified that when defendant complained of the opening of Baring street and of plaintiff receiving the damages, plaintiff told him if he was dissatisfied he would repay him the money with interest and take a reconveyance of the land ; defendant said he did not wish to sell and would not accept the offer.
    The plaintiff submitted eight points: the sixth and seventh were :
    6. By the conditions of sale, as testified to by the master, the right to claim the damages when paid, was given to the first purchaser and would not enure to the vendee of that purchaser on a sale by him.
    7. If the jury find from the evidence that the defendant when he made his purchase from the plaintiff, knew that Baring street had been laid out on the plan of the city, over the lot conveyed to him, he cannot now allege a failure of title as to that part of the lot taken by Baring street, and for which damages were awarded.
    The court charged:
    “ [The plaintiff, according to Ms own testimony, knew that Baring street would pass through lot No. 10, and such knowledge was material for the defendant to know at the time he purchased, and it was the duty of the plaintiff to impart to him such information, and the failure of the plaintiff to do so was the suppression of a material fact, which entitles the defendant to set off in this action in dollars and cents the injury that the opening of the street through the lot has caused to the lot.] In estimating such injury you should confine your inquiry as to the extent of the injury, as it existed at the time the city took possession of the street part of the lot and threw it open to the public, that being the time the defendant lost the use of so much of his property. Notwithstanding what I have just said, if the defendant had knowledge at the time he received his deed that the street when opened would pass through his lot, then he purchased the lot with full knowledge, and has no defence on this ground.
    “ [I say upon this ground, for the defendant may rest upon a second ground of defence, and that is, the damages which were awarded for lot No. 10 were not payable till the street was actually opened, and till then they were not severable from the lot, and were then payable only to the person owning the land. And the fact being undisputed, that the defendant at the opening of the street was the owner of the lot, he is the one and not the plaintiff entitled to the damages.] The fact is alike undisputed, that such damages as were paid, were paid to the plaintiff and [you should allow the defendant as an offset in this action against the mortgage, the amount of damages the plaintiff received on account of lot No. 10.] If no damages were awarded to the lot, of course the defence fails on the second ground, and if the defendant had knowledge at the time he received the deed, that the street would pass through the lot, his defence fails entirely, and your verdict should be for the plaintiff, for the amount of his mortgage with interest.

      “ I refer the parties for answer to their points to what I have here said, and further answer is declined.”
    The verdict was for the plaintiff for $275.33.- He removed the record to the Supreme Court by writ of error, and assigned for error:
    1-6. The rulings of the court on the questions of evidence.
    7. The refusal of the court to answer plaintiff’s points.
    8. The portion of the charge first enclosed in brackets.
    9. The portion of the charge secondly enclosed in brackets.
    10. The portion of the charge thirdly enclosed in brackets.

      A. V. Parsons, for plaintiff in error.
    A mortgage is a conveyance of the mortgaged premises, and can be defeated only by the payment of the money secured : Fluck v. Replogle, 1 Harris 405; Hersey v. Turbett, 3 Casey 418. The receipt by mortgagee of .the damages was not a defence to the payment of the money secured: Young v. Baird, 4 Am. Law Reg. 384; Schober v. Saving Fund, 11 Casey 223; Brown v. Scott, 1 P. F. Smith 357; Scott v. Fritz, Id. 418; Thomas v. Harris, 7 Wright 231.
    The refusal of the court to answer plaintiff’s points was error: Shaeffer v. Landis, 1 S. & R. 449 ; Hamilton v. Menor, 2 Id. 70; Vincent v. Huff, 4 Id. 298; Smith v. Thompson, 2 Id. 49; Noble v. McClintock, 6 W. & S. 58; Slaymaker v. St. John, 5 Watts 27.

      H. M. Dechert, for defendant in error.
    When one purchases land, not having seen it, on the representation of the vendor, and a highway on it is concealed, in an action for the purchase-money the injury from the highway may be deducted: Patterson v. Arthurs, 9 Watts 154; Wilson v. Cochran, 10 Wright 229 ; Fuhrman v. Loudon, 13 S. & R. 386 ; Christy v. Reynolds, 16 Id. 258; Lighty v. Shorb, 3 Penna. R. 450; Dobbins v. Brown, 2 Jones 79; Murphy v. Richardson, 4 Casey 292; Note to 4 Kent 471; Rawle on Covenants for Title 289; Peck v. Jones, 20 P. F. Smith 83.
    February 23d 1875.
   Mr. Justice Passoít

delivered the opinion of the court,

We do not find any serious error in either of the first six specifications. The seventh refers to the refusal of the learned judge to answer the points submitted to him by the counsel of the plaintiff. We think such refusal was error. The sixth and seventh points were not answered in the general charge, and should have been affirmed. A party who applies for it is entitled to a clear and distinct instruction on the rule of law applicable to his case, and it is error to withhold it: Slaymaker v. St. John, 5 Watts 27.

The remaining assignments allege error in the charge of the court. In the portion of the charge contained in the eighth specification the learned judge assumed, that there was the suppression of a material fact, and instructed the jury that said suj^pression entitled the defendant to a set-off in dollars and cents the injury caused to his lot by the opening of-Baring street. This virtually withdrew the question of fact from the jury. It may be that the court was right in its view of the facts; but they are not incapable of another and very different interpretation. The plaintiff had purchased the lot in question at a master’s sale. Public notice was given at said sale that Baring street had been laid out over this lot, and that the purchaser would be entitled to the damages. The defendant was at the master’s sale and bid against the plaintiff for said lot. In addition, the defendant lived within two hundred and fifty feet of Baring street. The only knowledge the plaintiff appears to have had upon this subject, was what occurred at the master’s sale, at which, as before stated, the defendant -was also present. He may very well have assumed .that the defendant knew Baring street had been laid out over the lot, and the price may have been fixed at what the plaintiff regarded as its value, subject to such an encumbrance. In such case there is no conclusive presumption that there was either' the suppressio veri, or the suggestio falsi. It more nearly resembles the case of a mutual mistake, where equity relieves, not by allowing the party to keep both the property and the price, but by rescinding the contract and by restoring the parties to their former position. In this case the plaintiff offered to take the property back and restore the money paid with interest. The defendant declined this offer He may or may not have a defence to this suit, as the jury may find the facts in regard to the alleged suppression by the plaintiff of the fact that Baring street had been opened over the lot. This fact should have been submitted to the jury, instead of being assumed by the court.

The portions of the charge referred to in the ninth and tenth assignments of error were clearly erroneous. It has been repeatedly held that damages for the opening of roads and streets are a personal claim; they are assessed in favor of the owner at the time of the injury, and do not run with the land : McFadden v. Johnson, 22 P. F. Smith 335. The defendant has not, in any aspect of the case, a claim to the' damages qua damages, and could not sot them off in this suit. If evidence for any purpose, it could only have been as to the measure of damages sustained by defendant by reason of the opening of Baring street. Even upon this question they were not conclusive.

Judgment reversed, and a venire faeias de novo awarded.