70 Pa. Super. 615 | Pa. Super. Ct. | 1918
Opinion by
It is a general rule of law that the assignee of a mortgage takes it subject to all the equities and set-offs existing between the original parties, and it is customary in such assignments to secure from the mortgagor a certificate of no defense. To bring a case within an exception to this general rule, viz: the assignee does not take it subject to equities or set-offs that arise from or grow out of an agreement or contract that is merely collateral to the mortgage, it must be made to appear that such agreement is in addition to the mortgage contract, and in no wise a part of the undertaking expressed in the mortgage. If it appears that this agreement forms a part of the consideration that was the foundation of the mortgage, it would not come within the exception.
Thomasky, the mortgagor, purchased for $3,000 from the mortgagee, a farm and some personal property and at the same time the mortgagee promised to put new roofs on the barn and house. This was the finding of the jury upon a proper submission by the learned trial judge. Thomasky paid $1,700 in cash, gave a note for $300 and a mortgage for $1,000. This suit is on the mortgage. It represented a part of the total purchase-price as expressed in the entire contract of sale. There was no attempt to separate the farm, personal property and repair values in respect to the total purchase-price, or the cash and securities given. Possession of the farm was taken and the mortgagee promised to place a new roof on the house and barn, and promised to deliver the personal property purchased, for which he had given a bill of sale. Placing the roof on the house and barn and the value and delivery of the personal property helped make up the contract price; they were a part of the consideration for the mortgage contract. These agreements, though to be executed in part after the mortgage had been executed, were not collateral to it, but they were a part of the mortgage consideration. The mortgagee failed to put a roof on the house and barn and failed to