184 Pa. 482 | Pa. | 1898
Opinion by
The first judgment entered in this case was in conformity with the claim of the plaintiffs that the land released from the lien of the mortgage was subject to the lien of and liable to seizure and sale upon a judgment obtained on the bond. It was founded upon the construction of the agreement and the mortgage, bond and release, provided for therein. The plaintiffs, in their reply to the affidavit of defense and the rule to restrict execution on the judgment to the land bound by the mortgage, distinctly affirmed that these instruments fully and correctly expressed the intention, understanding and agreements of the parties, and positively denied that there was any agreement or understanding between the said parties different from that contained in them. The defendant’s averments in his affidavit of defense respecting the release and the effect of it as understood and intended by the parties were properly considered by the court as of no avail against the written instruments. It was undoubtedly the province of the court to construe these instruments and to enter judgment in accordance with its construction of them. Tins as we have seen the learned court below did, and on an appeal from its judgment to this court it was determined that the lien of the judgment obtained on the bond should be restricted to the land bound by the mortgage. This determination was based upon a construction of the writings opposed to the construction put upon them by the court below. The judgment was accordingly reversed and the record remitted with instructions to enter a judgment in accordance with the opinion of this court: Neale et al. v. Dempster, 179 Pa. 569. The court below promptly complied with the instructions and entered a judgment in accordance with them, and from the judgment so entered the appeal now before us was taken.
We have carefully considered the argument made and the
The plaintiffs evidently misapprehended the grounds of the decision of this court when the case was here on the defendant’s appeal. It was not made on the ground that there were averments in the affidavit of defense which created an issue of fact to be determined by a jury. It was distinctly based on the construction of the agreement, mortgage, bond and release, and this, it is conceded, was a matter exclusively for the court. The suggestion, therefore, that the plaintiffs by the entry of the judgment now appealed from are deprived of the “ constitutional right to trial by jury ” has nothing whatever to rest upon. If the court below had in the first place entered judgment in conformity with the defendant’s contention, and the plaintiffs had appealed from it there would have been no irregularity in an affirmance of it. A judicial ascertainment of
Judgment affirmed.