Huckenstein v. Love

98 Pa. 518 | Pa. | 1881

Mr. Justice Trunkey

delivered the opinion of the court

When this action was commenced and until more than a year after the issue was formed by the pleadings, McKee was a stranger to the title of the mortgaged premises. Therefore, his name was not omitted by mistake — it would have been a mistake to have included it. He purchased the premises at sheriff’s sale pending the suit, and if he acquired the title he took subject to the mortgage and all the consequences of a judgment in the action. The plaintiff had no interest in making McKee a party defendant, for this was unnecessary to a trial on the merits. It could not forestall Iiuckenstein’s defence. Nor would it prevent the plaintiff giving in evidence the fact of the sheriff’s sale to repel a defence which such sale would repel, to omit making the purchaser a party to the record. The amendment was not within the letter or spirit of the statute. And, had McKee’s name been properly added, there was no service to authorize judgment against him in default of appearance. By a curious growth in the law of practice, two returns of nihil upon writs of scire facias, whether the mortgagor be living or dead, authorizes judgment in default, but this has not been extended so as to embrace persons who are not parties to the mortgage. Although but little injury may have been done to McKee" he was put to some trouble to ascertain if the vexatious and irregular judgment would injure him. He had right to demand that it be stricken off, for it was erroneously entered. It differed from a regular judgment, which, being without error in the proceeding, will not be struck off, bpt may, in the discretion of the court, be opened.

At the trial Huckenstein proposed to prove that Love, the assignor of the mortgage, was merely the broker, and that Mrs. Comingo, the assignee, was the real lender of the money. This offer was overruled for the reason that Huckenstein’s title to the premises had been vested in McKee, and the testimony was irrelevant and incompetent. Then the defendant proposed to prove that at the sheriff’s sale McKee was acting for and purchased for Huckenstein; that he paid the bid to the sheriff with Huckenstein’s money; that he agreed that no title should pass to him and he claimed none; and that he had acted in the matter to assist Huckenstein, who was physically unable to attend to it himself. This also wras rejected. If true, McKee had only a naked legal title and could have been compelled to convey to Huckenstein, had he refused to convey on demand. He w;as a trustee without interest, and with no duty, except to convey the legal title to the actual owner of the land.

Huckenstein had filed an affidavit of defence setting out the alleged usury and facts entitling him to defalk it. He pleaded usury, and payment with leave to prove the facts stated in the affidavit. The issue related to the usury in the plaintiff’s claim, and the burden of proof was upon the defendant. The offers of testimony aforesaid, especially the first, were pertinent to the issue, and the refusal of the first for the reason given, made the second material. Unless the defendant adduced proof tending to establish that Mrs. Comingo loaned the money to Huckenstein, his defence would fail. His affidavit averred this fact. The offer to prove it could only be understood with reference to the parties and the issue. The plaintiff’s counsel understood it, and, with his objections, proposed to stipulate that the judgment in this case should not bar the defence of usury in a suit on tlie bond. It would have been useless for the defendant to have formally offered proof of the usury after the groundwork for its reception had been rejected. The fourth and fifth assignments must be sustained.

In view only of the prior rulings in the case, can it be said that the offer set out in the fifth assignment was admissible. In truth, Huckenstein was the defendant in the issue and was interested in the result, even if the title had passed to McKee. The doctrine in Miners’ Trust Co. B. v. Rosebury, 31 P. F. Smith 309, does not apply to an action against the mortgagor. How could he defend for usury in a suit on the bond after an adjudication that its whole amount was due upon the mortgage?

Judgment against Thomas McKee reversed, and judgment against defendant Huckenstein, reversed, and venire facias de novo awarded.