155 Pa. 1 | Pa. | 1893
The plaintiffs obtained a judgment in the court below against Lewis Kroh and Margaret S. Kroh, his wife, upon a scire facias sur mortgage. The appeal is by the wife alone.
The mortgage covered the real estate of the wife and was given to the plaintiffs to enable her husband to purchase a traction engine. The mortgage was accompanied by a bond with a power of attorney to confess judgment. Judgment having been entered upon this bond, Lewis F. Kroh presented his petition to the court of common pleas, asking the said court to strike off or open the judgment on the ground of the want of consideration and fraud. The court struck off the judgment as to Margaret S. Kroh, but refused to strike off or open it as to Lewis F. Kroh. This suit was then commenced upon the mortgage, with the result of a verdict and judgment in favor of the plaintiffs, and against both defendants.
Upon the trial below the learned judge instructed the jury that the adjudication of the court upon the motion to open the judgment was a determination of all questions of fraud, want or failure of consideration, etc., in favor of the plaintiffs, and conclusive not only as to the defendant, L. F. Kroh, but also as to his wife, Margaret S. Kroh, and that she cannot in this action be permitted to set up the same defence to prevent a recovery.
The learned judge also instructed the jury that the testimony on the part of the defendants was insufficient to submit to the jury, as a defence, on the ground of coercion, and powerless to overcome the certificate of the justice taking the acknowledgment ; and that there was no evidence in the case tending to show that the plaintiffs are not bona fide mortgagees for value,
We find no error in any part of these instructions. While the court below struck off the judgment as to the wife, it did not affect her liability upon the mortgage. It left her husband liable upon the bond, and she would have been liable on the mortgage if she had never executed the bond.
The certificate of the justice was a judicial act, and his certificate cannot be overcome by her unwillingness to execute the mortgage not communicated to the justice. His certificate can only be impeached for fraud. As against a person who has notice, or who has parted with no valuable consideration, the wife may avoid the instrument by showing that she was entrapped into the execution of it by craft or treachery or compelled thereto by force: Heeter v. Glasgow, 79 Pa. 79; Miller v. Wentworth, 82 Pa. 280. Titles to real estate would have a frail tenure if the certificate of the justice could be impeached and set aside upon such evidence as exists in this case.
It will appear from what has already been said that it was not error in the court below to refuse the defendant’s first, second and third points.
Judgment affirmed.
