Lewis v. Hanchman

2 Pa. 416 | Pa. | 1845

Kennedy, J.,

after stating the facts as to original indebtedness. — The interest which fell due on the judgment in her lifetime, wras paid by her attorney in fact, J. G. Auner; and after her death, by the same, as her executor, down to the 16th of December, inclusive of the year 1845. Thus recognising the validity and force of the judgment: nor does any objection appear to have been made to it before the 21st of March, 1846, when upon the affidavit of J. G. Auner, the executor of C. Hanchman, a rule to show cause was entered why the judgment should not be opened, and the executor let into a defence. The ground of the defence is, that the notes included in thev mortgage given by Witman to the plaintiff, though drawn by Mrs. Hanchman, were drawn by her for the accommodation of Witman, and therefore she must be regarded as the surety for Witman; and that this fact was known to the plaintiff, when he took the mortgage as a security for the debt included in the notes, but by neglecting to record the mortgage until it was rendered worthless, by the giving and recording of a subsequent mortgage, he has thereby lost the benefit of the judgment pro tanto. The principle, however, adopted and settled by this court in the case of Walker v. The Montgomery County Bank, 1.2 Serg. & Rawle, 382,'shows that she, by agreeing to become the drawer of the notes, thereby agreed to become, and that she should be considered as the principal, and not a surety or endorser for the benefit of Witman. Hence the neglect of the plaintiff to have the mortgage recorded until it was too late to be worth any thing, cannot prejudice Mrs. Hanchman or her estate, because, she being the principal debtor, would not have been entitled to the benefit of the mortgage, as she would certainly have been had she been a mere surety; and as such had paid the debt. But besides, it has not been shown that she was not informed of the date of the recording of the mortgage before, or at the time she gave the judgment bond; and if she was, that would be sufficient to preclude her from setting up such defence as is now offered. This will apply to any other moneys included in the mort■gage, which were advanced by the plaintiff to Witman, and for which, if embraced in the judgment, Mrs. Hanchman would only be a surety. But if she or her agent, Mr. Witman, who attended to, and made the arrangement, under which the judgment was given, knew the date of the recording of the mortgage, there is no pretence for saying that she was deceived or imposed on by the omission or conduct of the plaintiff; she was bound to know the law on the subject, and cannot be excused on that account, if the facts were not concealed from her. It was incumbent on the defendant to show, on this application, that a good defence existed. The burden of proof as to this rested upon him; for the judgment must be considered good and satisfactory evidence of the debt, until the contrary be shown. But there is evidence, as we think, from which it may be fairly inferred, that Mr. Witman, the agent of Mrs. Hanchman, knew before, and at the time of giving the judgment bond, that the mortgage was not recorded before the 14th of April, 1840 ; for the receipt given to him, on the 7th of December, 1841, the same day on which the judgment bond was executed, recites the date of the mortgage, together with the book and page of its record in the recorder’s office, which rather goes to show that the mortgage itself was present at the time, from which the day of its having been recorded would appear, by the endorsement made thereon for that purpose ; and that Mr. Witman, in all probability, saw it, which would leave the defence offered to be set up, without the shadow of any thing like a good ground tQ stand on.

We therefore think this rule ought to be discharged, and accordingly discharge it.