Michaelis v. Brawley

109 Pa. 7 | Pa. | 1885

Chief Justice Mercur

delivered the opinion of the court,

The acknowledgment of a mortgage is no part of its execution, but only evidence of it. The acknowledgment need not be recited in the scire facias on it: Miner v. Graham, 12 Harris, 491. After judgment thereon its execution is a matter adjudicated: Id. The Act of 1705 gives a scire facias on a mortgage. It does not refer to a recorded mortgage. The scire facias lies on all mortgages whether recorded or unrecorded. The writ is on the mortgage and not on the registry thereof: Try on v. Munson, 27 P. F. S., 250; Lancaster v. Smith, 17 Id., 427. Hence the proper plea is non eat factum, and not nul tiel record: Id. An unauthorized satisfaction of the mortgage, on the record,is no defence to a scire facias: Id.

It is true the mortgage of a married woman is invalid unless properly acknowledged. If such be the fact it may be successfully interposed against a recovery on the mortgage. If however judgment be recovered on scire facias issued on the mortgage the judgment is conclusive that it was properly executed: Miner v. Graham, supra. Hence it was held in Butterfield's Appeal, 27 Id., 197, that although the mortgage of the married woman was void, yet it was merged in the judgment recovered in scire facias thereon. Its execution is thereby conclusively established. The judgment cannot be collaterally impeached except for fraud: Hartman v. Ogborn, 4 Id., 120. As the judgment in question was conclusive as a lien on the wife’s interest in the land there was no error in rejecting the evidence offered, nor in directing a verdict for the defendant.

Judgment affirmed.