133 Pa. 460 | Pennsylvania Court of Common Pleas, Northampton County | 1890
Opinion,
In the case of Fleming v. Parry, 24 Pa. 47, we said: “ A bond and mortgage taken for the same debt, though distinct securities, possessing dissimilar attributes and subject to remedies which are as unlike as personal actions and proceedings in rem, are, nevertheless, so far one that payment of either discharges both, and a release or extinguishment of either, without actual payment, is a discharge of the other, unless otherwise intended by the parties.” We said, also: “ The court relied much on the words used in satisf3ring the mortgage.' They were substantially, but not exactly, the words prescribed by act of assembly, but neither the debt nor the bond are mentioned: ‘ I, Andrew Fleming, do hereby acknowledge to have received satisfaction in full of this mortgage.’ These words, signed and sealed by the mortgagee, were all-sufficient to put the mortgage out of existence, and sufficient, too, to satisfy the debt, if so intended. Prima facie, they would, indeed, import 'extinguishment of the debt as well as
In the present case, all the facts are derived from a case stated. It is a perfectly well-established rule of practice that, “in a case stated, whatever is not distinctly and expressly-agreed upon and set forth as admitted, must be taken not to exist: ” Berks Co. v. Pile, 18 Pa. 493. And, again: “A ease stated, when well drawn, is like an issue developed by special pleading, and presents in a single point, or in a series of points, the very matter that is up for judgment. The court cannot go beyond the issue that is thus brought upon the record, however manifest the justice that might be reached by going further. The duty of the court is to decide the case that is stated, and to presume that what is not included was kept out for sufficient reason: ” Phil. etc. R. Co. v. Waterman, 54 Pa. 337. In Diehl v. Ihrie, 3 Wh. 143, we held that a presumption of one fact from others is an inference of fact, and, although, according to the rule of law, the jury may be bound to make the presumption, yet the court cannot make it without them. Mr. Justice Sergeant said, in delivering the opinion: “ Where, according' to the rule of law, the jury are bound to make that presumption, it still remains an inference of fact. The circumstance that the jury are bound to make it does not render it matter of law, so that the court can draw the presumption. From evidence of any fact which in law is deemed conclusive, the jury-are bound to infer the fact, and the court would so instruct them, and would grant a new trial if they refused. That would not authorize the court, in a common-law suit, to usurp the province of the jury, and adjudge, on a special verdict or demurrer, that the statement of the evidence proving a fact was equivalent to stating the fact thus proved.”
The fund in controversy is a part of the estate of Martin Seiple, deceased, to which Amandus Seiple, one of his sons, was entitled on the settlement of the final account of the executors. The fund was claimed by the wife of Amandus Seiple, the use plaintiff in the present proceeding, by virtue of a voluntary assignment made to her by her husband, on January 14, 1878, of his interest in his father’s estate; and, on the other hand, it was claimed by the administrators of Cornelius Seiple, a brother of Amandus, who had recovered a judgment for
Supposing this to be correct, the further difficulty with the case of the defendants, as it seems to us, lies in the fact of the satisfaction of the mortgage held by Cornelius for the security of the bond on which the judgment was obtained. The legal presumption is that the satisfaction of the mortgage works an extinguishment of the debt, and the burden of removing that presumption is thrown upon the creditor: Fleming v. Parry, supra. This is a presumption of law which necessarily flows from the fact of satisfaction set forth in the case stated, and, unless facts are averred in the case stated which rebut the presumption of extinguishment of the debt, the court cannot infer them. Now, upon an inspection of the case stated, we are unable to find any such facts. It is not averred that the debt was not, in point of fact, paid, nor that it was the intention of
The judgment of the court below is reversed; and judgment is now entered on the case stated in favor of the plaintiff, and against the defendants, for the sum of $1,880.50, with interest from October 9,1878, amounting, in the whole, to $2,245.31, with costs; and the record is remitted for further proceedings.
May 5, 1890, motion for re-argument refused.