7 Watts 126 | Pa. | 1838
The opinion of the Court was delivered by
The act of 1705 gives liberty to mortgagees, at any time after the expiration of twelve months next ensuing the last day whereon the mortgage money ought to be paid, or other condition performed, to sue forth a scire facias. As this limitation of time is intended for the benefit of mortgagors, they may, if they choose, dispense with it; and here, the mortgagor, in the event of the non payment of the interest according to the stipulations in the deed, agreed that the mortgagee might issue the writ of scire facias immediately, to recover the principal and interest, and all costs,, charges and expenses of every kind, which the mortgagee might sustain or be put t.o, for or by reason of such default, or in recovering the interest due. Not having complied with his contract, he cannot now complain that the scire facias was prematurely issued. But it is said, that the contract is usurious and void ; but we cannot think so, as these are extra incidental charges, which arise from the failure to perform the
But it is further objected, that the court allowed the plaintiff to recover costs and expenses without any^evidence. And this would appear to be true; for there was nothing in evidence, as is conceded, except the bond and mortgage, and of course nothing which could warrant the jury in giving damages to the plaintiff for costs and expenses. If there had been the slightest proof, we could not interfere; but where there is no testimony whatever, it is error to leave it, as a fact, to the jury, as has been repeatedly decided.
There is nothing in the first, third and fourth errors assigned.
Judgment reversed, and a venire de novo awarded.