Fourth Bleucher Building Ass'n v. Halpern, 270 Pa. 169

270 Pa. 169 | Pa. | 1921

Opinion by

Mr. Justice Sadler,

The plaintiff caused to be issued a scire facias upon a mortgage executed on February 6, 1917, by Harry Halpern. Prior to this time a judgment had been entered against Harry L. Halpern, and subsequently a second was indexed in the same way. Upon the latter an execution was had, and the land covered by the mortgage was sold to Martha Quinn, who conveyed to Muharem Allicakis. The latter, as terre-tenant, was called in as a party defendant, and made claim that the mortgage was discharged by the sheriff’s sale—preceded, as it was, by ánother judgment indexed, against Harry L. Halpern. At the trial, the deed to Harry Halpern, and the mortgage given by him in the same name, with the proceedings thereon, were offered in evidence as well as testimony to show default. Evidence was offered by defendant to prove Harry Halpern and Harry L. Halpern to be one and the same person, of which fact, it was argued, the association had information, because of the knowledge possessed by its officers at the time the mortgage was executed, and it was, therefore, bound to take notice of the indexed judgments.

When the mortgage loan was made upon the property at No. 518 South Third Street, the records disclosed the title to the land to be in Harry Halpern. A search for liens showed a first mortgage on the property. The judgment index indicated no liens against the proposed mortgagor. It is true that a judgment against Harry L. Halpern there appeared; but, in the absence of some notice, actual or constructive, of the identity of the defendant in the judgment with the owner of the land, the building association could not be charged thereby: Crouse v. Murphy, 140 Pa. 335. A contrary conclusion might be reached if there had been a like notation on the mortgage index; for, in such case the searcher would be put upon inquiry, and opportunity would be presented to determine whether there was identity of person, since an examination of a mortgage, so referred to, would furnish a description of the property proposed to be made the subject of a lien, and thus the requisite knowledge would be obtained: Crippen v. Bergold, 258 Pa. 469. But such fact could not be learned from an inspection of the judgment index, which disclosed nothing to indicate the particular land subject to the outstanding lien; where such record showed a difference in name, as here, actual notice of identity must be proven, or facts must be presented which lead to the conclusion that the party was not or -should not have been misled, because of his possession of sufficient means of acquiring knowledge of the true situation: Butts v. Cruttenden, 14 Pa. Superior Ct. 449. In the present case, the attempt was made to show actual notice by Frankel, the conveyancer of the company, and thus bind the association. Both he and Berger, the secretary, the only two parties having any connection with the making of the loan, denied positively the possession of any such information. Even had the contrary been proven, it would have been necessary to show further that the knowledge was obtained in the course of the particular transaction in \vhichj they were employed as agents; for it is only notice under such circumstances that can bind the principal: Houseman v. Girard Mut. B. & L. Assn., 81 Pa. 256; Bangor & Portland Ry. Co. v. American Bangor Slate Co., 203 Pa. 6; Gilkeson v. Thompson, 210 Pa. 355; Lightcap v. Nicola, 34 Pa. Superior Ct. 189, 190. Under the facts disclosed, binding instructions for the plaintiff were properly given.

It should further be noted that Martha Quinn, the grantor of Allicakis, was not misled in making her bid. The sheriff sales book showed the property advertised “subject to mortgages of $7,000,” and she was not, therefore, deceived when she purchased. A discussion of the legal effect of the knowledge so obtained is not, however, necessary in reaching a conclusion in the present case.

The assignments of error are overruled, and the judgment of the court below is affirmed.