Cummings v. Horter

15 Pa. Super. 458 | Pa. Super. Ct. | 1900

Opinion by

William W. Porter, J.,

This suit is upon a mortgage. The plaintiff is an assignee who, it is alleged by the affidavits of defense, took title from an assignee whose assignment was obtained from Edward Twaddell by fraud. Edward Twaddell is named in this action as terretenant. He is a part owner of the land covered by the mortgage, and was so when he owned and assigned the mortgage.

It is contended that as assignor of the mortgage Twaddell has no standing to defend, and that as terre-tenant he is restricted to those defenses which the mortgagor could set up. The position of the defendant as owner of a mortgage upon his own land is unusual. Ordinarily such a condition would result in a merger of the mortgage in the title to the land. As the defendant was, however, but a part owner of the land, he could in equity keep alive the mortgage to secure the debt upon all of the interests in the land.

The plaintiff’s title to the mortgage is based upon an alleged fraud perpetrated against an assignor who is also part owner of the land. The parties here are of necessity, and by the act of the plaintiff, made parties plaintiff and defendant to try the right of the plaintiff to foreclose the mortgage. The defense, as between such parties, raises the question whether the defendant, after fraud committed against him in the procurement of an assign-meat (upon which fraudulent assignment the plaintiff’s right to sue is founded) is powerless to set up the fraud to prevent the sale of his land. We think that such a defense, if proven, is available in this action. True, it is an equitable defense, but equitable defenses are cognizable in our courts of law. The plaintiff contends that a proceeding in equity is the defendant’s sole recourse. But why multiply actions to determine a single right ? Why compel a resort to equitjr where the common law machinery has been already set in motion by the plaintiff and furnishes adequate opportunity for a determination of the pending dispute ? The plaintiff complains that in case of the defendant’s success before a jury the verdict will have the effect of a satisfaction of the mortgage. But the defendant’s success will cut off the plaintiff’s interest in the subject-matter. If the defendant is satisfied as to the effect of such a verdict the plaintiff need scarcely concern himself therewith. As the case must go back for trial, we follow the discussion no further.

The order is affirmed.