9 Pa. 32 | Pa. | 1848
The scire facias given by the act of Assembly is founded upon the mortgage, and not upon the registry of it. The plea of nul tiel record was, therefore, wholly inapplicable, and might have been treated as a nullity. A judgment upon it was unnecessary, and its rendition does harm to no one. So much was determined at the present sittings, a few days since, and, consequently, the plaintiff abandoned the first error assigned.
The record shows that the exemplification of the mortgage of the 12th of August, 1837, was read without objection. After this, John F. Dupee was called, and proved the note held by the plaintiffs, was one of those recited in the mortgage. The plaintiffs, then, according to the paper-book, offered “ the mortgage, exemplification, and note,” to which the defendant objected. The objection having been overruled, the plaintiffs read the note in evidence, but not the exemplification of the mortgage, for that had been read before. The exception was urged here solely against the mortgage, on the ground of variance between it and the scire facias. But having been given in evidence without objection, and not read under the exception, it is not applicable to the mortgage. The reception of the note is not called into question.
What was the object of the defendant’s offer, embraced in the second bill of exceptions, or what a mortgage, dated the 26th January, 1848, has to do with the controversy, it is not easy to divine. If the exemplification offered was of the mortgage of August, 1837, before read, it does not show an agreement to defalk from the sum secured by the mortgage, all taxes that might be assessed on the mortgaged premises and paid by the mortgagor or his alienees. Such is asserted to have been the meaning and intent of the parties to the mortgage, but it is by no means apparent on the face of the instrument itself. But were this otherwise, surely notice of the intended defalcation should have been given under the plea put in. Notice was not pretended, and for this reason alone, the evidence offered was rightly rejected.
The beneficial plaintiffs below, became the holders of the note in question before maturity, with notice that payment of it was secured by mortgage. It has not been denied that from the moment they thus became owners of the note, they acquired an equitable interest in the collateral security of the mortgage, pro tanto. The
The objection to that part of the charge which avers notice to Caleb Roberts of the transfer of the note to Durham and Martin, and information given by him to them, of its being secured by mortgage, though not founded in fact, is inefficacious as ground of reversal, for two reasons: First, the supposed fact, mistakingly stated by the court, is wholly immaterial. It touches not the rights of the parties in this controversy, for it is a matter of no moment whether Caleb had notice or not. Secondly, the misstatement of a supposed fact, by the court, is not a cause for reversal of a judgment.
The answer to the fifth assignment of error is, that it nowhere appears the whole amount of the mortgage-money had not been due for a twelvemonth before the impetration of the scire facias. This, I think, it was the business of the defendants to show, by way of answer to the plaintiff’s action, as being a qualification of their primé facie right to sue. Perhaps the court below was right in thinking it pleadable only in abatement, but of this it is unnecessary to speak. The seventh error was not urged.
Judgment affirmed.