Appeal, No. 63 | Pa. | Apr 1, 1895
Opinion by
This is an equitable ejectment brought by a mortgagor out of possession against a mortgagee who is in under his mortgage. Ordinarily in such cases a tender of the amount due on the mortgage, made before suit brought, is a condition precedent to a recoveiy. But when it is alleged that the mortgagee has been paid out of the rents and profits received by him, or in any other manner, so that the land is no longer in pledge, an account may be taken at the trial to determine the truth of the plaintiff’s claim. If the account so taken shows the payment of the debt in full the plaintiff may recover an unconditional verdict. If the account results in showing a balance still unpaid this may be secured by a conditional verdict which ascertains the amount due and enables the plaintiff to recover subject to its payment.
In this case the defendant was found to be a mortgagee in possession. It was made to appear beyond all doubt that his debt was fully paid. On such a state of facts the plaintiff was entitled to an unconditional verdict in his favor.
The judgment is affirmed.