153 Pa. 350 | Pa. | 1893
Upon the facts as set forth in the case stated, we are of the opinion that the law is with the plaintiff. The mortgage was altered in a material part by the mortgagee, and this alteration avoids it absolutely. The mortgage is but a security for the payment of money with a right of lien upon the mortgaged premises to enforce payment. It is not stamped with the- character of real estate, but is a bare incumbrance or charge. In Wilson v. Schoenberger’s Executors, 31 Pa. 299, it was said: “ It is settled law in Pennsylvania that though in form a conveyance of the title, it is in reality, both at law and in equity, only a security for the payment of money or performance of the alleged contract.” There is no analogy between this case and that of a grantee of land who alters or destroys his title deed. In such case his title to the land is not gone, because the estate vested in him by virtue of his deed, and can only pass from him by some mode of conveyance known to the law. The instrument is avoided, but not the estate: Rifener v. Bowman, 63 Pa. 313.
Judgment affirmed.
