99 Pa. 226 | Pa. | 1882
delivered the opinion of the court, January 2d 1882.
On' February 6th 1871, Edward H. Chase and Sarah A. Chase sold and conveyed a lot of ground in the city of Titus-ville to the defendants, Asher S. Hubbard and Mary E., his wife, for the sum of $4,000 — $1,000 of which were paid in hand on the delivery of the deed, and the balance was secured by a judgment bond and mortgage. On November 19th 1877 judgment was entered on this bond in the sum of $1,054.94, that being the amount alleged to be then due and unpaid. On the judgment thus entered execution was issued to September term, 1879, and afterwards, on application of the defendants, the court opened this judgment, as to all of it in excess of $743.54, with the interest thereon from July 9th 1877, equal to $840.4-4, which were paid into court. The judgment being thus opened, the parties went to trial on the pleas of “ payment with leave,” and as to Mary E. Hubbard, “ coverture.” On this latter plea the court instructed the jury: “ If you find that Mary E. Hubbard, at the time of the execution of this bond, was a married woman there can be no recovery in this case as against her.”
In view of the fact that the bond was executed by the feme covert and her husband to secure the purchase money of land sold to them, this ruling was erroneous. As this question has been fully discussed and settled in the case of Shnyder v. Noble, 9 W. N. C. 182; 13 Norris, 286, we need give it no farther
We think a brief review of the facts, as found by the jury, will demonstrate the rectitude of this conclusion. In May 1871 Hubbard and wife conveyed the one-half of the mortgaged premises to A. H. Carr for $2,000 ; one-half of this sum was paid by Carr to his vendors, and the other half he agreed to pay .on the Chase mortgage. For this amount he also gave to the defendants his note, which, it seems, was never paid. This, however, is of no moment, inasmuch as the property thus sold was subject to the Chase mortgage, and under the arrangement between the defendants and Carr, if they were at any time forced to pay off this mortgage they would be entitled to subrogation as to Carr’s part of the property. Then, in January 1879, Watson and Pierce, the use plaintiffs, with knowledge, as the jury have found, of the arrangement between the defendants and Carr, took an assignment of the Chase mortgage, and, afterwards, on September 11th of the same year, a sheriff’s deed, made under a sale of Carr’s interest in the property, on a judgment of P. T. Winthrop, was obtained by F. B. Guthrie, Esq., the agent or trustee of Watson and Pierce. This sale was expressly made subject to the mortgage above-mentioned. The transaction, then, stands thus: Watson and Pierce, now the owners of the Chase mortgage, buy Carr’s interest in the premises, not only subject to that mortgage, but with full knowledge of the agreement between Carr and the defendants. Now, let us suppose that Hubbard and wife pay off this mortgage to Watson and Pierce, what would prevent them from claiming subrogation as against the land now owned by these very plaintiffs ? for, to repeat, on the notice given by Guthrie himself, this land was bought subject to the mortgage, and all there was of it were the $1,000 which Carr, or Carr’s land, was to pay. . But as it would be to no purpose to compel the defendants to pay that, in relief of the plaintiff’s property, which they would_ be entitled to recover back by the process of subrogation, the object is better accomplished by the release of the defendants from the payment of the"mortgage and its accompanying bond. The ver
The judgment is affirmed.