55 Pa. 311 | Pa. | 1867
The opinion of the court was delivered, November 11th 1867, by
— The verdict of the jury under the specific instruction of the learned judge of the Common Pleas establishes that the deed from Bowman to Houser was a mortgage and not a sale. The evidence fully sustains the finding that he accepted it as a security for the money he advanced for the benefit of Miss Lamont. The peculiar and governing feature of the case is, that Bowman, who purchased the premises at the Orphans’ Court sale and had verbally agreed to sell them to Miss Lamont for the same price he paid, did not deny his sale to her, but recognised and made it the foundation of his conveyance to Houser, and came into court and testified to it. Being examined as a witness on part of Miss Lamont, he testified that he had sold the property to her and she had paid him $975 in money and was credited by him with $74, the surplus of the rents he received over the interest. Wishing to realize his money, he asked a Mr. Boss to advance it for Miss Lamont on the security of the property. But
But Houser does not stand in a position to set up the statute. He is the plaintiff in the ejectment and must stand upon his own title, which is only a mortgage, and the defendant has tendered and brought into court the money due upon it. He is not an absolute purchaser from Bowman and can use his ejectment only to enforce payment of the money due to him; but instead of this he seeks to convert his mortgage into an absolute conveyance, by setting up the Statute of Frauds, which Bowman had waived, and thus to hold the property without having paid the major part of its value. To suffer this would be to permit him to perpetrate a fraud, by obtaining the title on the pretence of a loan of a small part of its value from one who conceded Miss Lamont’s title and treated with him expressly upon the basis of her ownership. Bowman did not convey Miss Lamont’s interest in the property, except as a security for Houser’s advance to pay her debt, and it would be a gross fraud for the latter now to hold that interest under a conveyance made for a different purpose. Probably / nothing is better settled in this state than this; that a deed taken ; as a security for the loan of money is but a mortgage, and cannot by any form of words or other means, be converted into an absolute conveyance: Colwell v. Woods, 3 Watts 188; Kunkle v. Wolfersberger, 6 Id. 126; Holsey v. Trevillo, Id. 407; Rankin v. Mortimere, 7 Id. 372; Hiester v. Maderia, 3 W. & S. 384; Todd v. Campbell, 8 Casey 250; Kellum v. Smith, 9 Id. 158. Houser being a mere mortgagee by his arrangement with Bow
These views cover all the assignments of error, and the judgment is, therefore, affirmed.